Detroit Lions Sued for Copyright Infringement

Barry Sanders
Posterization of Barry Sanders

Using copyrighted images can get you invited to court.

On January 11, 2024, Allen Kee sued the Detroit Lions and others for copyright infringement. The lawsuit involves the statue of Barry Sanders. Kee alleges the sculptors used his iconic photograph of Barry which was taken during the 1995 game between the Detroit Lions and Pittsburgh Steelers.

The sculpture is strikingly like Allen Kee’s photo of Barry Sanders, which is not surprising since the photo was used to create the sculpture. The Lions published a video titled, “Sculpting Berry: The Making of Lion’s Legend Barry Sanders Statue.” An enlarged copy of Kee’s photo can be seen directly behind the clay mold.  In the video one sculptor says, “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.”

So, what’s the problem?

Copyrights protect original works of authorship, and provide several rights to the owner. One is the exclusive right to derivative works. Derivative works are works based upon one or more pre-existing works. The copyright owner has the exclusive right to derivative works, such as a sculpture made from a picture, or a picture taken of a sculpture.

A similar case involving a picture of a statue.

The United States Postal Service learned about derivative works the hard way in June 2018, when the US Court of Federal Claims ruled against them.

Korean War Memorial
Korean War Memorial Stamp

The Korean War memorial was dedicated on July 27, 1995. Frank Gaylord sculpted the 19 stainless steel statues of soldiers marching in their ponchos. In January 1996, John Alli took a photograph of the Memorial during a snowstorm. He called it, “Real Life.”

Mr. Alli licensed this photograph to the USPS for $1,500.00. The USPS released the Korean War Memorial postage stamp on July 27, 2003.  Almost 48 million were sold.

But the USPS didn’t get permission from Mr. Gaylord, the sculptor of the monument. Mr. Gaylord sued, alleging infringement of his copyright. The Court ordered the USPS to pay Mr. Gaylord $684,844.94.

As the saying goes, “Fool me once, shame on you, fool me twice, shame on me.” The Post Office was about to be fooled again. Shame on them.

Let’s try this one more time.

In 2008, the USPS began work on another Forever stamp: the Lady Liberty.

The Post Office chose a photograph taken by Raimund Linke. The USPS paid $1,500.00 for a license to use the photo. The Lady Liberty stamp was released in December 2010.

Statue of Liberty Stamp
Statue of Liberty Stamp

In fairness to the USPS, they thought the photo was of the Statue of Liberty in New York. Any copyright on that statue expired long ago. But the picture that Linke took was of the statue at the New York, New York Hotel in Las Vegas. OOPS!

Robert S. Davidson created the Las Vegas Statue of Liberty. Mr. Davidson was a famous sculptor of large works. Mr. Davidson completed his Las Vegas Lady Liberty on October 4, 1996.

He thought that his statue needed to be different than the New York Lady Liberty, stating: “More modern, a little more contemporary face, definitely more feminine, just something that I thought was more appropriate for Las Vegas.” He said that for guidance, he looked at a picture of his mother-in-law and that her face was a large influence on the final form of his Lady Liberty.

In November 2013, Mr. Davidson sued the USPS for copyright infringement of his statue. On June 29, 2018, the Court of Claims awarded Mr. Davidson $3,554,946.95. OOPS, they did it again.

Lions have a tough case.

The Lee case is just starting, and I suspect it will settle. The Lions and other defendants have defenses. In my opinion, their best defense would be to show they had a license. Lee had licensed others to use the photo, so possibly the Lions may have acquired the right to create the sculpture from someone whom Lee licensed. There is also fair use, but it’s unlikely applicable in this case.

The Takeaway

Copyrights are tricky. There can be copyrights within copyrights. Just using an image can be risky. Copying an image from the Internet is always a risk. Check it out and make sure that you have a license to the copyrights, and any internal copyrights, that might be in the image. Don’t just assume.  It’s best to seek legal advice.

Damages for copyright infringement can be very high. Damages can be your profit, or the copyright owner’s loss. Or, the copyright owner can elect statutory damages, which are $750 to $30,000 per infringement, and up to $150,000 for willful infringement. The court is also encouraged to award attorney fees and costs to the prevailing party.

Word to the wise, be very careful when it comes to copyrights, they’re everywhere, last a long time, and can be very costly.

Bill Honaker
By Bill Honaker

About the Author:

Bill Honaker, “The IP Guy” is a former USPTO Examiner, a partner with Dickinson-Wright, and author of the forthcoming book, Invisible Assets – How to Maximize the Hidden Value in Your Business. To download a sample chapter, click here.

To get answers to your questions click here. To schedule a time to talk, you can access my calendar by clicking here, email Bill@IPGuy.com, or call me at 248-433-7381.