DETROIT — A longtime sports photographer has filed a federal lawsuit against the Detroit Lions, claiming the organization used his photo without permission in designing the new Barry Sanders statue.
The statue, which was unveiled outside of Ford Field in September 2023, was sculpted based off a photo taken of Sanders by Allen Kee during a Sept. 3, 1995, Lions game against the Pittsburgh Steelers, the suit claims.
RELATED: Barry Sanders’ legacy cemented: Lions reveal new statue outside of Ford Field
On Jan. 11, Kee sued the Detroit Lions, as well as Getty Images, NFL Properties, NFL Enterprises, Fanatics, Dick’s Sporting Goods, McFarlane Toys and others in U.S. District Court for the Southern District of New York, for direct, contributory and or vicarious copyright infringement.
Kee is asking for an undetermined amount of relief in the lawsuit, as well as a permanent injunction prohibiting the defendants from copying, displaying, distributing, advertising, promoting, and/or exploiting in any manner his copyrighted work.
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 he created the photograph and did not create the photo under any “work for hire” arrangement or contract, the suit states.
The plaintiff has been a sports photographer for more than three decades and is the sole author of the photograph and its exclusive owner, his attorneys Kevin P. McCulloch and Nate A. Kleinman wrote in the filing.
The 8-foot-tall bronze statue was unveiled in a private ceremony outside Ford Field on Sept. 16, 2023, the day before the Lions’ home opener against the Seattle Seahawks. It has been visible to the public throughout the 2023 season.
One week after the statue’s unveiling, the Lions published a roughly eight-minute video on YouTube called “Sculpting Barry: The Making of Lions Legend Barry Sanders’ Statue.” The video, which remains live, includes footage of the sculptors working on the clay mold for the statue in the TCI studio where it was created.
At the 3:53 mark of the video, one can clearly see a blown-up copy of Kee’s photograph hanging directly behind the clay mold of the statue. At that point in the video, one of the sculptors also acknowledges that they purposefully intended to slavishly “recreate” Kee’s photograph, the suit states.
The sculptor can be heard saying: “We have a photo that’s considered the most iconic running photo ever taken of Barry Sanders. That’s what’s being re-created in this sculpture.”
Kee “never authorized, licensed, or otherwise granted permission to the Detroit Lions or TCI to create a derivative work slavishly based on his photograph,” the suit claims.
Kee’s attorneys further state the photographer never granted an exclusive license regarding the photograph to any person or entity, nor photograph sublicensing to customers, along with other photographs he created during the same game, the suit claims. Kee did, however, submit the photo in question to NFL Photos — a licensing agency that ceased operation in 2004, the suit admits.
The agency was created, owned and operated by the NFL and devoted to licensing and distributing photographs created at NFL events and games by freelance photographers. Despite submitting his photo to NFL Photos, 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.
In addition to the Lions, Kee is suing TCI to benefit monetarily off the use of the photo, as well as McFarlane Toys, who is profiting off three variations of Sanders figures patterned off the photo. He is also suing Getty Images for never giving them permission to resubmit his photo for relicensing.
“Upon information and belief, at some point Getty Images created or acquired a copy of plaintiff’s photograph without plaintiff’s knowledge, consent, permission or authorization and without a license from plaintiff,” the suit states. “Upon information and belief, Getty Images has sold licenses to and distributed copies of plaintiff’s photograph to numerous customers.”
The lawsuit was filed three days before the Lions’ first home playoff game in 30 years. Detroit hosts Matthew Stafford and the Los Angeles Rams at 8 p.m. Sunday, Jan. 14, at Ford Field.
At their regular season finale, Sunday, Jan. 7 against the Minnesota Vikings, the Lions also gave out replica statues to the first 25,000 fans through the doors, as well as all season ticket holders.
A request for comment from the Detroit Lions was not immediately returned prior to publication.
The Detroit Lions gave out Barry Sanders replica statues to season ticket holders, as well as the first 25,000 fans to come through the doors, at the team's regular season finale, Sunday, Jan. 7, 2024 against the Minnesota Vikings.Ryan Boldrey | MLive.com
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2024-01-12 17:25:00Z
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