DETROIT, MI — The Detroit Lions have filed a motion in federal court, requesting a lawsuit brought against the organization by a longtime sports photographer be dismissed.
Photographer Allen Kee sued the Detroit Lions in January, claiming the organization used a photo he took in 1995 as the inspiration for the Barry Sanders statue erected outside Ford Field.
Kee, who filed the suit in U.S. District Court for the Southern District of New York, also named Getty Images, NFL Properties, NFL Enterprises, Fanatics, Dick’s Sporting Goods, McFarlane Toys and others in the suit. Kee alleges the other parties committed direct, contributory and/or vicarious copyright infringement of his work.
Through his attorneys, Kevin P. McCulloch and Nate A. Kleinman, Kee claimed he was the sole author of the photograph and its exclusive owner.
The statue, which was unveiled outside of Ford Field in September 2023, was sculpted based off a photo taken of Sanders by Kee during a Sept. 3, 1995, Lions game against the Pittsburgh Steelers, the suit claims.
Kee, who was working as a freelance photographer when the photo was taken, was not an employee of any entity or organization at the time and did not create the photo under any “work for hire” arrangement or contract, the suit states.
The Lions filed a motion Friday, May 10, alleging the plaintiff 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.
Not only does the plaintiff not have jurisdiction, but the Lions have no business ties to New York and therefore the court has no jurisdiction over the Lions, the response states.
“The claims should be dismissed for lack of personal jurisdiction under Federal Rule of Civil Procedure 12,” Detroit Lions’ attorney Daniel J. Aaron wrote in his motion.
The NFL also filed a motion for dismissal on Friday, calling the photographer’s claims “meritless.”
While Kee’s attorneys state the photographer never granted an exclusive license of the photograph to any person or entity, he did, however, submit the photo to NFL Photos — a licensing agency that ceased operation in 2004, the complaint admits.
Despite that, Kee claims he did not relinquish his copyrights to it, 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.
When NFL Photos ceased operations in 2004, the NFL agreed to return any original slides submitted for licensing by freelance photographers, including Kee, to their owners. Kee claims his original slide of the Sanders photo was never returned and that it was moved to a storage facility in California owned by the NFL.
“By failing to secure the rights and license necessary to copy, publish, distribute and otherwise use and/or exploit” Kee’s photograph, the defendants “jointly acted willfully, intentionally and/or with reckless disregard for (Kee’s) copyrights,” the suit claims.
Jordan Feirman, representing the NFL, said in its response that the plaintiff had executed an agreement in 2004 that explicitly authorized the NFL to transfer any of Kee’s physical slides in their possession to a licensing agent called WireImage.
“Apparently without investigating, plaintiff simply devised new claims in an attempt to plead around his 2004 authorization,” Feirman wrote.
Feirman argued the NFL parties “agreed to either return or physically transfer” the slides to WireImage.
“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,” Feirman wrote. “Even if the contract was pled and the images identified, it is indisputable that the statute of limitations expired 14 years ago”.
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