Update 1/17/17: Photographers who had their claims against the NFL and AP dismissed last month filed a motion on January 9, 2017 asking the federal judge in the case to amend his judgment and grant an appeal on some of their claims, arguing that they are separable from those now scheduled for arbitration.

In a memorandum of law in support of their motion to amend the judgment, the photographers’ attorneys cited precedent that the “claims against the NFL defendants involving photos obtained from Getty Images are neither ‘inherently inseparable’ nor ‘inextricably interrelated’ with plaintiffs’ claims involving photographs that the NFL defendants obtained from AP, and thus there is no basis for delaying an appeal of those claims.” Additionally, they argued, “even though the claims involve similar misconduct and legal theories of liability, they arise from different transactions and involve entirely different license defenses and thus ‘certainly can be decided independently of each other.’” The court has yet to rule on the motion.

Read the motion document here. 


By Mickey Osterreicher

On December 23, 2016, New York Federal District Court Judge Robert W. Sweet dismissed the last claims by a group of photographers against the NFL and the AP, finding that the photographers failed to repudiate their contract with the two organizations.

This followed the court's reconsideration of its July decision to preserve the photographers’ claim that those contracts were unconscionable and unenforceable. Accordingly the court found that “while the court in its July 15, 2016, opinion determined that the contributor agreements were unconscionable, they were ratified when the photographers performed under the AP agreement.”

Commenced In 2013, seven photographers filed a copyright infringement lawsuit against the NFL, Getty Images and the Associated Press. The plaintiffs are Paul Spinelli, Scott Boehm, George Newman Lowrance, David Stluka, Paul Jasienski, David Drapkin and Thomas E. Witte. They claimed, among other things, that if they wished to continue licensing their NFL images for commercial uses, “they were forced to transition their NFL content from Getty Images to AP who had the contract with the NFL.” In turn, the complaint alleged that “Getty Images threatened to remove Plaintiffs’ other sports content from its distribution networks and/or terminate its relationship with Plaintiffs entirely if they did not agree to continue licensing their NFL content through Getty Images even after the expiration of its commercial licensing deal with the NFL.” The complaint stated “Getty Images also made clear that it would not ‘welcome back’ any contributors who moved their NFL content to AP should Getty Images ever regain the exclusive rights to license NFL content in the future.”

The photographers also viewed Getty’s threats as “a blatant attempt to leverage its exclusive licensing agreement with MLB and other sports entities in order to force Plaintiffs to leave their NFL content with Getty Images” and “Because certain Plaintiffs had significant non-NFL content at Getty Images, including significant MLB photo collections, Getty Images’ position forced Plaintiffs to make an impossible choice between losing commercial licensing opportunities for their NFL content by not going to AP or giving up commercial licensing opportunities for their non-NFL content by leaving Getty Images.”

In its subsequent motion to dismiss the NFL claimed that the use of the photos “was fully within the scope of” its licensing agreements the AP and Getty. AP claims in its motion to dismiss the lawsuit that the contracts it made with the photographers “licensed AP to make the uses of plaintiffs’ photographs” and also “authorized AP to issue sublicenses” to the NFL and others. In its motion, Getty also sought to dismiss the case and to “compel arbitration or in the alternative to stay the action.” Getty claims that its agreement with the photographers requires that they “arbitrate their disputes” and that the case should be put on hold “pending final resolution of the arbitration” in the event that the court does not grant the motion to dismiss.

In March 2015, the judge Sweet dismissed the photographers’ copyright infringement and antitrust claims but permitted them to replead their claims of breach of contract claims for unconscionability and duress.

Last July, the judge dismissed the duress claim, finding that the photographers failed to promptly rescind their agreements with the photo agencies, but did allow their unconscionability claim to move forward. Once again the defendants requested the court to reconsider that decision, arguing that it had not considered other cases in which a claim of unconscionability was dismissed for failure of the parties to repudiate the contract.

In his most recent opinion the judge agreed, finding “though the law on this question is less developed for unconscionability than duress, the New York Court of Appeals has held that ‘an unconscionable arrangement will not be disturbed when there has been ratification of it with the knowledge of all its bearings, after time has been had for consideration.'” he said.

According to reports, attorneys for the photographers plan an “immediate” appeal of both the court's most recent decision as well as the two previous rulings partially dismissing the photographers’ claims.

The Opinion can be read here.