Spinelli v. Nat'l Football League
| Decision Date | 27 March 2015 |
| Docket Number | No. 13 Civ. 7398RWS.,13 Civ. 7398RWS. |
| Citation | 96 F.Supp.3d 81 |
| Parties | Paul SPINELLI, Scott Boehm, Paul Jasienski, George Newman Lowrance, David Stluka, David Drapkin, and Thomas E. Witte, Plaintiffs, v. NATIONAL FOOTBALL LEAGUE, NFL Properties, LLC, NFL Ventures, L.P., NFL Productions, LLC, NFL Enterprises, LLC, Replay Photos, LLC, Getty Images (Us), Inc., Associated Press, Arizona Cardinals Holdings, Inc., Atlanta Falcons Football Club LLC, Baltimore Ravens Limited Partnership, Buffalo Bills, Inc., Panthers Football LLC, Chicago Bears Football Club, Inc., Cincinnati Bengals, Inc., Cleveland Browns LLC, Dallas Cowboys Football Club, Denver Broncos Football Club, Detroit Lions, Inc., Green Bay Packers, Inc., Houston NFL Holdings LP, Indianapolis Colts, Inc., Jacksonville Jaguars Ltd., Kansas City Chiefs Football Club, Inc., Miami Dolphins, Ltd., Minnesota Vikings Football Club LLC, New England Patriots, LP, New Orleans Louisiana Saints, LLC, New York Football Giants, Inc., New York Jets Football Club, Inc., Oakland Raiders LP, Philadelphia Eagles Football Club, Inc., Pittsburgh Steelers Sports, Inc., San Diego Chargers Football Co., San Francisco Forty Niners Ltd., Football Northwest LLC, The Rams Football Co. LLC, Buccaneers Limited Partnership, Tennessee Football, Inc., and Washington Football Inc., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Nelson & McCulloch LLP, by: Danial A. Nelson, Esq., Kevin Patrick McCulloch, Esq., New York, NY, for the Plaintiffs.
Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, by: Jeffrey A. Mishkin, Esq., Anthony Joseph Dreyer, Esq., Jordan Adam Feirman, Esq., Karen Hoffman Lent, Esq., New York, NY, Wilson Elser Moskowitz Edelman & Dicker LLP, by: Jura Christine Zibas, Esq., Jana A. Slavina, Esq., White Plains, NY, Weil, Gotshal & Manges LLP, by: Bruce S. Meyer, Esq., New York, NY, Dla Piper U.S. LLP, by: Andrew Lawrence Deutsch, Esq., Marc Evan Miller, Esq., Paolo Morante, Esq., Tamar Y. Duvdevani, Esq., New York, NY, for the Defendants.
REDACTED OPINION*
There are several motions currently pending in this action between plaintiffs Paul Spinelli, Scott Boehm, Paul Jasienski, George Newman Lowrance, David Stluka, David Drapkin, and Thomas E. Witte (“Plaintiffs”) and defendants National Football League (“NFL”), NFL Properties, LLC, (“NFLP”), NFL Ventures, L.P., NFL Productions, LLC, NFL Enterprises, LLC (together with NFL, NFLP, NFL Ventures, L.P., and NFL Productions, “NFL Entities”), Arizona Cardinals Holdings, Inc., Atlanta Falcons Football Club LLC, Baltimore Ravens Limited Partnership, Buffalo Bills, Inc., Panthers Football LLC, Chicago Bears Football Club, Inc., Cincinnati Bengals, Inc., Cleveland Browns LLC, Dallas Cowboys Football Club, Denver Broncos Football Club, Detroit Lions, Inc., Green Bay Packers, Inc., Houston NFL Holdings LP, Indianapolis Colts, Inc., Jacksonville Jaguars Ltd., Kansas City Chiefs Football Club, Inc., Miami Dolphins, Ltd., Minnesota Vikings Football Club LLC, New England Patriots, LP, New Orleans Louisiana Saints, LLC, New York Football Giants, Inc., New York Jets Football Club, Inc., Oakland Raiders LP, Philadelphia Eagles Football Club, Inc., Pittsburgh Steelers Sports, Inc., San Diego Chargers Football Co., San Francisco Forty Niners Ltd., Football Northwest LLC, The Rams Football Co. LLC, Buccaneers Limited Partnership, Tennessee Football, Inc., and Washington Football Inc. (Arizona Cardinal Holdings, Inc. through Washington Football Inc., “NFL Clubs,” and together with NFL Entities, “NFL Defendants”), Replay Photos, LLC (“Replay”), Getty Images (US), Inc. (“Getty”), and Associated Press (“AP,” together with NFL Defendants, Replay, and Getty, “Defendants”).
NFL Defendants, Replay and AP have moved to dismiss the amended complaint (the “AC”). Getty has moved to dismiss the AC and compel arbitration, or stay the action as to Getty.
For the reasons set forth below, NFL Defendants', Replays', and AP's motions to dismiss, and Getty's motion to compel arbitration, are granted.
Plaintiffs filed their initial complaint (“Complaint”) against the NFL Entities, Replay, Getty, and AP on October 21, 2013. On December 16, 2013, Getty moved to dismiss or, in the alternative, to stay the action as against it based on arbitration clauses contained within contracts at issue in this dispute. (See Dkt. Nos. 21, 22, 24.) At the same time, Getty filed a demand for arbitration with the American Arbitration Association (“AAA”). On December 18, 2013, AP and the NFL Entities, and on December 26, 2013, Replay filed motions to dismiss the complaint.
On February 12, 2014, in lieu of opposing Defendants' motions to dismiss, Plaintiffs filed the AC against all currently named Defendants. (See Dkt. No. 42.) On March 31, 2014, Defendants renewed their motions to dismiss. (Dkt. No. 51.) Getty and Plaintiffs have agreed to hold the arbitration proceeding in abeyance pending resolution of Getty's motion to compel arbitration. (See Bloom Decl. Ex. B.)
The instant motions were heard and marked fully submitted on October 1, 2014. Subsequently, and while the motions to dismiss have been pending, motions to stay discovery were filed by Defendants and granted by the Court. (See Dkt. Nos. 99, 100.)
The following facts are taken from the Plaintiffs AC, which are taken to be true for the purposes of disposing of the instant motions, and the terms of certain agreements either directly referenced by Plaintiffs or integral to the AC.1 Plaintiffs are seven “professional photographers who make their living taking and licensing sports-related photographs, including but not limited to content related to [NFL] practices, games, functions, and other events.” (AC ¶ 1.)
Plaintiffs, collectively, have photographed “hundreds, if not thousands” of NFL and NFL Club games, practices and events, and have taken “literally hundreds of thousands of NFL-related photographs.” (AC ¶ 31.) Among these photographs, Plaintiffs allege there are “tens of thousands of photos ... that do[ ] not include any marks, logos, or other intellectual property owned by the NFL Entities.”2 (AC ¶¶ 34–35.)
The NFL has collectively licensed and protected NFL and NFL Club trademarks, including names, nicknames, logos, colors, designs, slogans, symbols, and other identifying indicia for decades. (See AC ¶¶ 44–45; NFL Def.'s Mot. 7) [Redacted] NFL and NFL Clubs, [Redacted] provided NFL with exclusive licensing rights for certain business operations [Redacted]
Prior to 2004, NFL maintained an in-house department that directly licensed the rights to NFL-related photographs. (AC ¶¶ 44–46.) For many years, Plaintiffs obtained media credentials—either through their agents, Getty and AP, or directly from the NFL Clubs via the NFL's in-house department, NFL Photos, to photograph events for the NFL and individual NFL Clubs. (AC ¶ 30.)3
In July 2004, NFL—through NFLP—entered into a five-year licensing agreement with Getty (“Getty Agreement”), whereby Getty acquired rights to license photographs of NFL content to: (i) NFL business partners (including sponsors and licensees of the NFL, and other NFL-approved companies) for commercial uses; and (ii) media organizations for editorial uses. (Getty Agreement [Redacted]; see also AC ¶ 46.) The rights granted under the Getty Agreement covered a “worldwide” territory (Getty Agreement [Redacted] ), and became exclusive in 2007 when Getty acquired WireImage, another stock photography agency. (AC ¶ 46.)
Among the images covered by the Getty Agreement were photographs in which Getty owned the copyrights (Getty Agreement [Redacted] ), and photographs from independent contributors such as Plaintiffs (“Contributor Photographs”), [Redacted] (Getty Agreement [Redacted] ) [Redacted], Getty had entered into agreements with each of the Plaintiffs (“Getty Contributor Agreements”), pursuant to which Plaintiffs became contributing photographers for Getty, and Getty received the right to license Plaintiffs' works, including NFL photographs. (AC ¶ 47.)
The Getty Agreement authorized “NFL Entities”—defined to include the NFL (and its affiliates, subsidiaries, and successors in interest), and NFL Clubs (Getty Agreement [Redacted] )—to make royalty-free use of photographs owned by Getty for a wide variety of uses, including:
[Redacted]
(Id. ) The right of NFL Entities to make such uses extended to Contributor Photographs, [Redacted] (Getty Agreement [Redacted] ) Plaintiffs each submitted images to Getty of NFL games and other NFL-related matters pursuant to the Getty Contributor Agreements. (AC ¶ 47.)
Plaintiffs allege that “[d]espite the fundamental obligations to license Plaintiffs' works ... Getty ... granted the NFL nearly unfettered access to Plaintiffs' photo collections and, either expressly or by inaction, allowed the NFL to make free or ‘complimentary’ use of Plaintiffs' copyrights photos.” (AC ¶ 72.) Plaintiffs further allege that Getty “lacked authority to grant such unfettered usage rights or complimentary and indefinite use licenses to the NFL without obtaining separate and express permission from Plaintiffs for each such ‘complimentary’ license or use,” (AC ¶ 77) and that the Getty Contributor Agreements “precluded Getty ... from granting usage rights at no cost and Getty ['s] ... own standard terms and conditions for usage licenses pertaining to its Rights Managed collections photos prohibited such use.” (AC ¶ 78.) ]
The Getty Agreement expired on March 31, 2009. (Getty Agreement [Redacted] )
In 2009, “[NFLP] entertained bids for exclusive commercial licensing rights for NFL and NFL Club photos and eventually selected AP to be the sole commercial licensor [of] such photographs.” (AC ¶¶ 26, 54.) Under the resulting agreement (the “First AP Agreement”), AP became the NFLP's exclusive agent and distributor for licensing commercial uses of images of NFL content to NFL business partners, and a nonexclusive agent for licensing editorial uses of...
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