Judge Rules Photographers May Be Able to Proceed With Unconscionability Claim Against NFL and AP and Getty
A group of freelance photographers contracted to shoot NFL games may press forward with a claim that they were forced to enter into unconscionable licensing agreements that cost them their ability to sell higher-value commercial licenses.
The seven photographers brought a lawsuit in 2013 against The Associated Press, the National Football League, Replay Photos and Getty Images alleging the licensing agreements violated antitrust and copyright laws. Those claims were dismissed in 2015 by Southern District Judge Robert Sweet. The photographers filed a second amended complaint that included a claim alleging the licensing agreements were unconscionable because of a lack of equal bargaining power. Last week, Judge Sweet denied a motion brought by the AP, the NFL and Replay to dismiss the unconscionability claims ruling that the alleged high-pressure “take or leave it” tactics and deception used to sway the photographers into entering the agreements suggested unequal bargaining power between the parties.
Judge Sweet granted a motion by Getty to compel arbitration, but opened the door for the photographers to make an unconscionability claim against Getty later finding that the photographers had pointed to an “inequality of bargaining power” after the AP secured an exclusive agreement with the NFL, increasing AP’s leverage. The photographers also alleged that they had proposed several changes to their license contracts during a negotiation call and that their proposed changes were rejected. The AP told plaintiffs the terms were “take-it-or-leave-it,” Sweet wrote. That would be a violation, if backed by evidence, because “there were no other opportunities for plaintiffs to engage in their livelihood of photographing NFL football games other than to accept the contributor agreements with the AP, which was their primary source of income,” Sweet wrote in Spinelli v. National Football League, 13-cv-7398. Judge Sweet added that not signing with the AP would have led to the photographers losing access to all the NFL photos they had already taken, because the AP had a retroactive exclusive license over all NFL photographs.
