NBA player Lebron James is facing a lawsuit for posting a picture of himself.
Complex Magazine and Sports Illustrated reported that a New York copyright attorney filed a lawsuit against James on behalf of Steve Mitchell, who took a picture of James dunking during the LA Lakers vs. Miami Heat game on December 13th, 2019. The following day, James posted a cropped version of the picture on his social media accounts, resulting in the aforementioned lawsuit.
Mitchell’s attorneys are arguing that the fact that James is the focus in the photo does not preclude him from seeking permission to publish the photo. As the owner, Mitchell argues that his copyright has been violated since no contractual agreement was reached between himself, James, and/or the Lakers. Mitchell is seeking damages of up to $150,000 per infringement.
James has been known to repost images from various fans on his account in the past, and as such, fans may be of the view that commencing legal action on these grounds is excessive on Mitchell’s part, as many photographers in the past have settled for the bragging rights. As a seasoned photojournalist whose work has appeared in major publications including ESPN and Sports Illustrated, Steve Mitchell is not likely interested in bragging rights. Mitchell is in the business of licensing his photos to online and print media for a fee, which provides context into the seriousness of the infringement from his perspective.
The essential rules of copyright law would deem Mitchell to possess copyrights in his creative works, absent a contractual relationship that says otherwise. The fact that Mitchell is a credentialed photojournalist that works closely with the NBA would likely only strengthen his claim.
The complaint further demonstrates that Mitchell registered the photo with the U.S. Copyright office. This is not a necessary step to secure a copyright in a work, as a copyright exists from the moment the work is created and fixed in a tangible form. Despite this, registration allows for additional legal protections, including, the ability to sue for infringement.
The Doctrine of Fair Use
The fair use doctrine, initially a common law creation, was later codified in s.107 of the 1976 US Copyright Act (the Act). It is considered an “equitable rule of reason”, meaning that courts do not employ a bright line test, but rather, weigh all the relevant facts on a case-by-case basis. The Act provides a non-exhaustive list of factors a court should consider. These include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) the nature of the copyright protected work; (3) the amount and substantiality of the portion used in relation to the copyright protected work as a whole; and (4) the effect of the use upon the potential market for or value of the copyright protected work.
It likely will not be difficult for the judges to conclude that an infringement occurred, however, James’ attorneys will likely seek a potential defense under the fair use doctrine.
(1) The Purpose and Character of the Use
The purpose of the post arguably was to celebrate the dunk and pay homage to the time James spent playing for Miami, prior to playing for his current team. The fact that the post is freely available, and James is not profiting from the post might also be favorable for James. His attorneys will likely argue that there was no intent to profit from this post. Despite this reality, the fact remains that James’ pages are highly commercial, and these posts contribute to the commercial success of his brand.
(2) The Nature of the Copyright Protected Work
In terms of the nature of the work, James’ attorneys might argue that there is nothing imaginative or unique about the photo, as it is James dunking a basketball – something he has been known to do a lot of over the years. On the other side, Mitchell’s lawyers could construct a range of arguments to try and rebut this claim. Bolstering an argument around Mitchell’s background as an established photographer with a history of licensed and protected work would be a potentially viable avenue.
(4) The Effect of the Use upon the Potential Market
Market impact will likely be one of the major factors discussed if a fair use argument is raised. From Mitchell’s perspective, his attorneys could argue that James’ post diminishes the value of the original photo. The fact that James’ photo can be easily reproduced is detrimental to the process Mitchell underwent initially, to register and protect his photograph. From a market perspective, time is of the essence, as increased popularity for James’ photo has the potential of further diminishing the value of Mitchell’s photograph. However, in an environment where a signature can exponentially increase the value of an object, perhaps commencing legal action against one of the most popular athletes on the planet will have the opposite effect.
Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at the Osgoode Innovation Clinic.