Unpacking Fair Use: A Legal Battle Between Sculptors and Photographers in the NFL

Kohrman Jackson & Krantz LLP

Earlier this year, a rare case of copyright infringement was brought against the National Football League (NFL) and the Detroit Lions over a statue of Hall of Fame player Barry Sanders. The case, filed in January in New York federal court by photographer Allen Kee, claims that the defendants violated his copyright by using his photo of Sanders in action during a 1995 game as the model for the pose in the statue.  The case explores the intersection of the “fair use” doctrine for both sculptors and photographers.

The “Fair Use” Doctrine

“Fair use” is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances (Section 107 of the Copyright Act), and is a defense against a claim of copyright infringement. In its most generic sense, “fair use” is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner and not be considered an infringement.

So, what is a “transformative” use? Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. If this definition seems ambiguous or vague, that’s because it is. There are no hard-and-fast rules for defining “fair use” only general guidelines. Like free speech, the judges and lawmakers who created the “fair use” exception wanted it to have an expansive meaning that could be open to interpretation.

Photographer’s Argument

Photographer Allen Kee claims that the sculptor is essentially copying his work, which is supported by an image he included in the complaint – a screenshot from a promotional video in which Kee’s blown-up photo is positioned in front of the sculptor as he shapes the statue. Some “experts” claim that Kee’s position is a fairly convincing claim, pointing to the 2023 Supreme Court decision in favor of the photographer whose photo of pop star Prince was used by the Andy Warhol Foundation for commercial use. However, the Warhol case, simplistically speaking, dealt with derivative work serving the same commercial purpose. Andy Warhol’s silkscreen prints and pencil illustrations, were based on Lynn Goldsmith’s copyrighted photograph of the musician Prince. The Supreme Court stated that the derivative work served the same commercial purpose as the original and the fair use factor – purpose and context – weighed against the Andy Warhol Foundation’s fair use defense.

The photographer also makes a claim of “slavish recreation” of the photograph.  Slavish recreation essentially means “showing no attempt at originality, constructive interpretation, or development. However, such a claim is unsubstantiated.  Sculpture inherently involves interpretation and artistic choices, making it virtually impossible to replicate every detail of a photograph.

Sculptor’s Argument

The sculptor has several good arguments to establish “fair use” and ensure a legal victory:

  • Transformative Nature of Sculpture: The sculptor has transformed the 2D photograph into a 3d sculpture, adding depth, interpretation and artistic expression. This transformation easily distinguishes the sculpture from the original photograph, constituting fair use under copyright law.
  • Purpose and Context: The purpose of the sculpture is commemorative and artistic, celebrating the achievements and legacy of Barry Sanders. This differs significantly from the original photograph’s purpose, which may have been journalistic or documentary.
  • Avoidance of Harm to the Photographer’s Market: The creation and display of the sculpture does not harm the market for the original photograph. The photograph retains its value and relevance within its original context, while the sculpture offers a distinct and separate artistic representation of the event or subject.
  • Legal Precedents: Recent legal precedents, such as the California jury’s ruling in the Kat von D case, recognize the transformative nature of transferring images from one medium to another. In this case, the photograph of Barry Sanders served as inspiration for a new creative work, i.e. the sculpture. There have been other precedents, such as the Jeff Koons case, which have emphasized that a mere conversion of a photograph into a sculpture does not automatically constitute copyright infringement. The critical factor is the degree of transformation and the addition of new creative elements, which the Sanders statue clearly exhibits.
  • Policy Considerations: Upholding the sculptor’s “fair use” in this case aligns with the broader policy goals of promoting creativity, artistic expression, and the free exchange of ideas. Requiring licenses for every use, even when not legally necessary, would stifle creativity and burden artists with unnecessary costs.

Based on the above, the sculptor’s creation of the Barry Sanders statue appears to constitute “fair use” under U.S. copyright law, due to its transformative nature, distinct purpose, and artistic expression.  Upholding “fair use” in this case would not only protect the rights of sculptors but also foster a creative artistic environment.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Kohrman Jackson & Krantz LLP


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