The spectacle at Cowboys Stadium in Arlington during the buildup to 2011’s Super Bowl XLV was Texas-sized: More than 103,000 football fanatics crammed under the retractable roof of the lavish sports palace to watch the Green Bay Packers clash with the Pittsburgh Steelers. Another 3,000 diehards paid $200 each for the privilege of standing outside in frosty winter weather to view the broadcast on a Jumbotron.
According to a lawsuit filed October 21 in U.S. District Court in Manhattan, the pageantry also included two “multi-story” images of Packers quarterback Aaron Rodgers made especially for the occasion, with one draped across the exterior of the stadium and the other covering the façade of a major Dallas hotel. David Stluka, the photographer who snapped the original image of Rodgers, says he wasn’t paid a cent for having his work displayed on the gigantic banners, and wasn’t aware of their existence until after the fact.
After 22 seasons on the sidelines, Stluka has witnessed and photographed a number of historic NFL moments, and he’s just one of several accomplished sports photographers to come forward recently with similar grievances.
Thanks to Stluka and his fellow plaintiffs in the lawsuit—a group of veteran sideline photographers, who, together, have covered multiple Super Bowls, supplied images for Madden videogame covers, and generally been the unknown men behind the lens for dozens of iconic photos—the NFL now stands accused of extensive copyright infringement.
Seven photographers accuse the League, the Associated Press, and Getty Images of “rampant, willful, and continued misuse” of their photos, and they say the AP illegally granted the NFL “complimentary” use of thousands of images for NFL.com, NFL Network, and various ad campaigns. The AP also allegedly "failed to charge the NFL appropriate market value" for photographs, and did not track how they were used. The banners at Super Bowl XLV with Stluka’s photo of Rodgers are cited as a particularly “egregious” example in the court documents.
NFL spokesman Brian McCarthy declined to comment on the allegations, as did Getty Images spokeswoman Colleen McCabe. Paul Colford, the AP’s director of media relations, issued a statement via email saying the photographers signed “broad license agreements” with the AP that gave the organization the right to sublicense their photos to the NFL and others. “The AP has performed in full compliance with those license agreements,” Colford said. “While we are still investigating the facts, to our current knowledge, the uses by the NFL of the plaintiffs’ photographs alleged in the complaint were made with the AP’s permission and are not copyright infringements.”
Copyright disputes over sports photographs are relatively common—for example, the photographer who took the iconic 1991 shot of Desmond Howard’s “Heisman pose” at Michigan is locked in an ongoing legal battle with Sports Illustrated and others—but this case is unique in that it is perhaps the first time a group of photographers has taken on an entire league and alleged repeated misuse of thousands upon thousands of images. Combined with the fact that the NFL is known for zealously enforcing its own copyrights by removing unauthorized footage from YouTube and other websites, the case highlights what could be an inconsistency in the the league's policies with regard to copyright—and it's just one more example of the new problems the Internet age has created for news and sports photographers.
The origins of the case date back to 2003 when the NFL disbanded its Photographic Services Division, formerly known as NFL Photos. Created in 1965, NFL Photos was a crew of freelancers that worked “on spec,” meaning they earned a percentage from each photo they sold rather than hourly wages or a salary. Unlike the video footage recorded by NFL Films, where the league owns all the rights, photos shot during games and practices were copyrighted property that belonged to the photographers.
After shuttering NFL Photos, the league sought bids from outside agencies for the exclusive rights to their commercial photo licenses. Getty Images won the contract and proceeded to hire several longtime NFL Photos shooters to continue working “on spec.” When a company such as Gatorade wanted to put Peyton Manning on a billboard in Times Square, for example, they now had to go through Getty for the image, which then paid a significant percentage to the original photographer. When the NFL put the commercial licensing contract up for grabs again in 2009, though, the AP outbid Getty. That left the seven photographers in a bind, since Getty also maintained exclusive agreements with MLB, the NCAA, and other sports leagues. Getty still had the ability to license NFL photos for newspapers and other “editorial” purposes, but those are significantly less valuable than commercial deals.
Things got ugly, according the lawsuit, when the photographers opted to abandon Getty for the AP. First, Getty allegedly blackballed them from shooting anything except NFL for the AP. The photographers say the NFL then convinced AP to grant the league “complimentary” access to their photo archives, meaning the League could use virtually any copyrighted photo for free. The lawsuit includes hundreds of pages of screenshots from NFL.com with photos by Stluka and his colleagues that were allegedly published without their knowledge or permission. Most of these appear to be quotidian galleries documenting mini-camps and preseason games, but a several are quite recognizable, such as a shot of Saints quarterback Drew Brees triumphantly clutching the Lombardi Trophy surrounded by falling confetti.
“Our clients did not give anybody, let alone the NFL, permission to use their photos for free,” said Kevin McCulloch, attorney for the photographers. “The NFL wants to characterize this use as ‘complimentary,’ meaning it was with permission or free. We contend it was unauthorized.”
Darren Heitner, a Florida lawyer who specializes in sports, intellectual property, and commercial litigation (and who wrote about this issue for Forbes), said it’s too early to judge the strength of the photographers’ case since the NFL, AP, and Getty have not yet responded in court with details about the licensing contracts. However, Heitner explained, if the photographers do prevail, the potential payout could be significant.
“We’re talking thousands of photos that were allegedly used,” Heitner said during an interview last week. “These photographers could be entitled to quite a bit of money based on each use of each photo being an individual infringement.”
Speaking from his home near Madison, Wisconsin, Stluka declined to discuss specifics of the case—including the massive Rodgers photographs used during Super Bowl XLV—but he emphasized the fact that he’s simply passionate about his job and wants to continue earning a living. “I love photography and I love football,” Stluka said. “I’m fortunate that I get to do what I love to do.”
Paul Spinelli, the NFL’s former director of Photographic Services and the lead plaintiff in the lawsuit, declined to comment, as did other photographers involved the lawsuit. McCulloch said his clients are afraid the NFL and AP will revoke their sideline credentials for the rest of the season if they speak out publicly.
As it stands, the NFL continues to make huge profits by vigilantly guarding its product from copyright scofflaws, hence the stern warning that appears during each televised game stating that the broadcasts are intended for “the private use of our audience, and any other use of this telecast or of any pictures, descriptions or accounts of the game without the NFL's consent is prohibited.”
But its prominent photographers—who give the NFL so much of its iconic imagery—“are going day-to-day, holding their breath, hoping the NFL and AP don’t retaliate and blacklist them,” McCulloch said. “It obviously takes a tremendous amount of courage to stand up for their rights in the face of a multibillion-dollar corporation that holds their livelihoods in its hands.
“These guys don’t have a 401(k). They don’t have a salary. They don’t have health insurance,” McCulloch said. “They make their living doing this.”