The NFL and the Detroit Lions have filed motions to dismiss a photographer’s “meritless” lawsuit over the use of his photo of former football star Barry Sanders to design a statue of him.
In September, the Detroit Lions unveiled an 8-foot statue of Sanders outside Ford Field stadium in Downtown Detroit.
A few months later, sports photographer Allen Kee filed a lawsuit claiming that the sculpture of the former football star is based on an image that he took of Sanders in action during the Detroit Lions game against the Pittsburgh Steelers.
Kee, who has been a sports photographer for more than three decades, claims the Detroit Lions used his photo of Sanders for the statue without his consent.
According to the photographer’s lawsuit, the Detroit Lions published a video — which is no longer publicly available on YouTube — about the making of the sculpture called “Sculpting Barry: The Making of Lions Legend Barry Sanders’ Statue” one week after the statue’s unveiling last year.
In the video, a blown-up copy of Kee’s photograph of Sanders can be seen hanging directly behind the clay mold of the statue as the sculptors work on it in a studio. One of the statue’s sculptors also acknowledges that they intended to “recreate” Kee’s photograph in the statue.
Kee sued the Detroit Lions, NFL Properties, NFL Enterprises, as well as several other companies in the U.S. District Court for the Southern District of New York, for direct, contributory, and/or vicarious copyright infringement.
The NFL Calls Photographer’s Claims ‘Meritless’
However, now both the NFL and the Detroit Lions have filed motions in federal court requesting that the lawsuit brought against the organizations by the longtime sports photographer be dismissed.
According to a report by Michigan Live, the NFL filed a motion for dismissal on Friday calling Kee’s claims “meritless.”
In his lawsuit, Kee alleges that he never granted an exclusive license regarding the photograph to any person or entity, nor photograph sub-licensing to customers, along with other photographs he created during the same game.
However, Kee admits that he did submit the image of Sanders to “NFL Photos” — a licensing agency created, owned, and operated by the NFL that was dedicated to licensing and distributing photos by freelance photographers at NFL games.
NFL Photos ceased operation in 2004 and Kee claims he did not relinquish his copyrights to the agency, created, nor did he grant the NFL or any of its subsidiary entities any license or rights to use the photo without purchasing an additional usage license.
But Michigan Live reports that Jordan Feirman, the attorney representing the NFL, claims that Kee had executed an agreement in 2004 that explicitly authorized the NFL to transfer any of Kee’s physical slides in their possession to licensing agent WireImage.
Feirman alleges that Kee has disregarded or overlooked previous authorization to the NFL which “agreed to either return or physically transfer” his slides to WireImage.
“Apparently without investigating, plaintiff simply devised new claims in an attempt to plead around his 2004 authorization,” Feirman writes.
“These allegations are the basis of a breach of contract claim that notably fails to identify the actual contract at issue, and is paired with a wholly contradictory claim seeking a declaration that the NFL Parties ‘improperly transferred [the photo] to WireImage.”
“Even if the contract was pled and the images identified, it is indisputable that the statute of limitations expired 14 years ago”
Meanwhile, Michigan Live reports that the Detroit Lions also filed a motion for dismissal on Friday alleging that Kee lacked jurisdiction for his complaint by filing the lawsuit in New York. Kee is a resident of both Florida and Connecticut, whereas the Lions are located in Michigan and the statue was constructed in Illinois, the motion states.
According to the motion, not only does the plaintiff not have jurisdiction, but the Detroit Lions have no business ties to New York, and therefore the court has no jurisdiction over the Detroit Lions.
Image credits: Feature photo via YouTube/Detroit Lions.