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Joe Bryant

Lawyerguys Question - Image copyright

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You may have seen this story http://sports.yahoo.com/blogs/nfl-shutdown-corner/dolphins-fans-put-manning-miami-billboard-150302789.html No big deal but Miami folks have put a billboard up lobbying for the team to acquire Manning.

My question though is about the legal angle. Can they use Manning's image without consent? Does it get different when the entity using the image is use it for profit?

We're in the process of purchasing photos for FBG and I thought of that when I saw the story.

What's the scoop there?

J

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You may have seen this story http://sports.yahoo.com/blogs/nfl-shutdown-corner/dolphins-fans-put-manning-miami-billboard-150302789.html No big deal but Miami folks have put a billboard up lobbying for the team to acquire Manning.

My question though is about the legal angle. Can they use Manning's image without consent? Does it get different when the entity using the image is use it for profit?

We're in the process of purchasing photos for FBG and I thought of that when I saw the story.

What's the scoop there?

J

Peyton Manning does not own a copyright on his image. The photographer may own a copyright on the original image used to doctor the image used on the billboard (EDIT: Though I doubt it would withstand the "originality" requirement). And the designer of the billboard probably has a copyright on the "derivative work" that is the billboard design.

Florida may, or may not, have a state right to publicity action that Manning could research as an action. You may remember Lindsey Lohan suing under a California version of that action over a commerical with a skanky character named "Lindsey." There is a also a somewhat memorable case under that California action involving Vanna White. Those actions, however, are normally restricted to the use of an image for a commercial purpose.

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You may have seen this story http://sports.yahoo....-150302789.html No big deal but Miami folks have put a billboard up lobbying for the team to acquire Manning.

My question though is about the legal angle. Can they use Manning's image without consent? Does it get different when the entity using the image is use it for profit?

We're in the process of purchasing photos for FBG and I thought of that when I saw the story.

What's the scoop there?

J

Peyton Manning does not own a copyright on his image. The photographer may own a copyright on the original image used to doctor the image used on the billboard (EDIT: Though I doubt it would withstand the "originality" requirement). And the designer of the billboard probably has a copyright on the "derivative work" that is the billboard design.
Peyton might, never know. Yeah no doubt 99% of images out there were someone else taking them with permission from the team and all, but some athletes do pose for their own stuff and do profit from it.

Also, if I took pics at a game I had to sign a document that those images would be for use within the paper or site I worked for. Selling them, you gotta throw the team some $, get their permission etc.

Digital images are easier to track down now with exif's and all. There doesn't seem to be any way to track down whom took that one pic of Peyton, so this really doesn't matter. Chances are though that the unknown person violated an agreement with the Colts and NFL.

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You may have seen this story http://sports.yahoo....-150302789.html No big deal but Miami folks have put a billboard up lobbying for the team to acquire Manning.

My question though is about the legal angle. Can they use Manning's image without consent? Does it get different when the entity using the image is use it for profit?

We're in the process of purchasing photos for FBG and I thought of that when I saw the story.

What's the scoop there?

J

Not wholly legal, but not something where they could prove it was illegal either.

In another case, profit versus non-profit doesn't matter, they get sued either way. It would probably affect how much the person or company suing could ask for but you surely realize that.

One thing though re FBG, you'll probably have an agreement where you aren't allowed to alter the images but to resize them. Photographers get real fussy if you mess with their pics even a simple brightness adjustment can irk some of them. The serious ones consider it art.

AP and NFL's media dept offer headshots free to PFWA members.

AP is otherwise very expensive due to their high quality.

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It's probably a legal image. Somebody (probably a photographer or a publication) certainly owns the copyright, and the company who put up the billboard likely won't risk legal trouble. Especially when good quality legal images aren't that expensive to obtain (for business reasons, anyway).

ETA - you're buying images for the site? Cool.

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Big difference between a FF website using the picture vs. a bunch of fans. If the rights are exclusively Manning's, no way he pursues them against a Miami fanbase massaging his ego (and his pocketbook). Someone probably already mentioned but NFL may also own rights to Manning and NFL team imagery. But the risk that fanbase faces seems pretty low, as they'd probably just get a cease and desist letter being they are not profiting. Who's going to seek damages from a fanbase? OTOH any NFL-related website should probably expect vigorous policing of intellectual property, and more likely to seek damages, JMHO.

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You may have seen this story http://sports.yahoo.com/blogs/nfl-shutdown-corner/dolphins-fans-put-manning-miami-billboard-150302789.html No big deal but Miami folks have put a billboard up lobbying for the team to acquire Manning.

My question though is about the legal angle. Can they use Manning's image without consent? Does it get different when the entity using the image is use it for profit?

We're in the process of purchasing photos for FBG and I thought of that when I saw the story.

What's the scoop there?

J

Peyton Manning does not own a copyright on his image. The photographer may own a copyright on the original image used to doctor the image used on the billboard (EDIT: Though I doubt it would withstand the "originality" requirement). And the designer of the billboard probably has a copyright on the "derivative work" that is the billboard design.

Florida may, or may not, have a state right to publicity action that Manning could research as an action. You may remember Lindsey Lohan suing under a California version of that action over a commerical with a skanky character named "Lindsey." There is a also a somewhat memorable case under that California action involving Vanna White. Those actions, however, are normally restricted to the use of an image for a commercial purpose.

I'm not sure why the bolded would be a problem here as the bar for originality is pretty low, though I agree with most of what you're saying. I'd imagine that some photog or the conglomerate he worked for holds a copyright in the photo via the work made for hire doctrine (or if the photog was a contractor for said conglomerate, the rights were assigned or something). Odds are it came from google image search.

The right of publicity / privacy tort issues and the possibility of a fair use affirmative defense to copyright infringement (if copyright exists) are definitely worth considering. Manning is a "public figure," and the use of the image seems non-commercial (billboard guys aren't profiting). You could even go so far as to say they're making fair commentary on a newsworthy issue.

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Also, if I took pics at a game I had to sign a document that those images would be for use within the paper or site I worked for. Selling them, you gotta throw the team some $, get their permission etc.

Yes, that's a separate contract that you were required to sign precisely because the Colts and Manning don't own a copyright in the image.

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Also, if I took pics at a game I had to sign a document that those images would be for use within the paper or site I worked for. Selling them, you gotta throw the team some $, get their permission etc.

Yes, that's a separate contract that you were required to sign precisely because the Colts and Manning don't own a copyright in the image.
I felt like your reply was contradictory and clearly not meant to be. Would you mind clarifying this?

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Also, if I took pics at a game I had to sign a document that those images would be for use within the paper or site I worked for. Selling them, you gotta throw the team some $, get their permission etc.

Yes, that's a separate contract that you were required to sign precisely because the Colts and Manning don't own a copyright in the image.
I felt like your reply was contradictory and clearly not meant to be. Would you mind clarifying this?
No copyright. So a contractual right is created. Fans can take pics from their seats and use them how they please. Professional photographers get special access in return for giving the celebrity :2cents: if the photographer makes a profit off of the image.

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Also, if I took pics at a game I had to sign a document that those images would be for use within the paper or site I worked for. Selling them, you gotta throw the team some $, get their permission etc.

Yes, that's a separate contract that you were required to sign precisely because the Colts and Manning don't own a copyright in the image.
I felt like your reply was contradictory and clearly not meant to be. Would you mind clarifying this?
No copyright. So a contractual right is created. Fans can take pics from their seats and use them how they please. Professional photographers get special access in return for giving the celebrity :2cents: if the photographer makes a profit off of the image.
There is more than likely fine print on any ticket that prevents a fan from using a picture taken at a sporting event for commercial gain without the express permission of the league/team/venue.

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Also, if I took pics at a game I had to sign a document that those images would be for use within the paper or site I worked for. Selling them, you gotta throw the team some $, get their permission etc.

Yes, that's a separate contract that you were required to sign precisely because the Colts and Manning don't own a copyright in the image.
I felt like your reply was contradictory and clearly not meant to be. Would you mind clarifying this?
No copyright. So a contractual right is created. Fans can take pics from their seats and use them how they please. Professional photographers get special access in return for giving the celebrity :2cents: if the photographer makes a profit off of the image.
There is more than likely fine print on any ticket that prevents a fan from using a picture taken at a sporting event for commercial gain without the express permission of the league/team/venue.
I just looked at a few tickets I have. Some do and some don't. One even says the team "may" own the copyright. Not exactly what I call contractually binding.

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Joe, isn't this kinda thing covered by being a part of the USA Today Sports Media Group?

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Looks more like Sage Rosenfels to me.

This is what I was going to say kind of. How can you prove that's even Manning?

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This isn't hurting Manning at all. Unless he doesn't want to come to Miami. But if he DOES want to come to Miami, the fans are doing him a big PR favor by putting up those signs. No way Manning creates any waves over this, whether it's an infrigement on his rights or not. Heck, he'd probably pay to put those same signs up to generate support on his side of the bargaining table. Whether it's "legal" or not... totally immaterial. It can only help him.

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