The Second Circuit Calls a False Start on NFL Photographer Litigation

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Just after the close of an eventful Week 1, the NFL was hit with the revival of an extensive lawsuit claiming it wrongfully exploited thousands of game-day photos without permission or payment.

Spinelli v. NFL, No. 17-673 (2d Cir. Sept. 11, 2018) was brought by a group of photographers who allege that the AP – the exclusive licensing agent for the NFL’s marks, and therefore, the gateway to shoot football games – improperly cut deals to allow the NFL to exploit thousands of their copyrighted photos without paying them royalties.  The unlawful uses allegedly span from 2009 to the present, and even include a multi-story photo of Aaron Rodgers that the NFL used to promote Super Bowl XLV.  After the Southern District of New York dismissed their copyright, contract, and tort claims against the AP, NFL, and all 32 teams, the photographers threw the red flag.

On review, the Second Circuit reversed the district court’s dismissal of the copyright infringement, contract, and fraud claims, but affirmed the dismissal of the other tort and antitrust claims.  In doing so, the Second Circuit rejected many of the NFL’s arguments, including that it had an implied license from the AP to use the photos until a formal deal was reached, characterizing it as “simply a post-hoc rationalization meant to excuse the NFL’s infringing uses.”

Thanks to the reversal, the photographers have another chance to move the chains in district court.

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