UPDATED 2/5/21: LeBron James has agreed to a settlement in this case after being sued by photographer Stephen Mitchell. (James later countersued Mitchell for $1,000,000.) Specific terms of the settlement, disclosed in a court filing on Wednesday, February 3, have not been made public, but it appears to result in closing both outstanding lawsuits.
“The parties have reached a settlement in principle that resolves all claims in this action,” the two sides wrote in the joint filing as reported by The Athletic. “The parties thus jointly request twenty-one (21) days to memorialize and execute the agreement in writing, after which time the parties intend to file a stipulation of dismissal with prejudice.”
The story is a familiar one by now: It’s December 2019 and hoops star LeBron James posts a photo of himself to all of his social media accounts. The photo shows him dunking in a basketball game against the Miami Heat. The photo garners thousands of views and likes from his huge audience. Athletes post photos like this all the time, so how did this since-deleted photo from James’ social media accounts become the center of a lawsuit—and counter lawsuit—between him and professional sports photographer Steven Mitchell? The case hinges on whether or not James’ post was fair use or copyright infringement.
The Main Purpose of Copyright Law
First things first: Copyright law is designed to protect creators. When you take a photograph, you automatically have the copyright of the image. That means that you have the exclusive right to reproduce the work, to create derivative works based on it, to distribute copies, and to display it in public.
You can decide to license specific usage rights to someone who wants to use your photographs through a contract. But, without this contract, other people cannot post your images without infringing on your copyrights. This is true whether or not you register your copyrights. While registering your copyright will make things easier for legal situations, or for claiming damages, you do not relinquish your copyrights to an image simply because it is not registered.
How Copyright Applies in Steven Mitchell’s Lawsuit Against LeBron James
In this case, Mitchell sells licenses to his photos but James did not obtain a license before posting the dunk photo to his social media accounts. This prompted a copyright infringement case filed by Mitchell in March 2020 claiming that James’ usage of the photo violates copyright rules. The suit names LeBron James as well as LRMR Ventures and Uninterrupted Digital Ventures, businesses which run his Facebook page, and asks for any money made off the post or $150,000 for each time James used the image. In response, James filed a countersuit where he is seeking at least $1 million and attorney fees, claiming that his use of the photo was a case of fair use.
What Defines Fair Use of an Image?
In U.S. copyright law, fair use may be established when the use of a copyrighted work is intended for purposes such as criticism, news reporting, teaching, and research, even if it was used without permission from, or payment to, the copyright holder. When assessing a fair use defense, the court must balance four factors: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
Was LeBron James’ Post Fair Use or Copyright Infringement?
In this case, James’ countersuit is claiming it was a case of fair use, since he didn’t benefit commercially from the dissemination of the photo. Attorney Darren Heitner (not connected to the case) counters this claim noting that “James’ social media profiles ‘carry a lot of value and are commercialized quite often in conjunction with his off-court deals.’” Currently, James has 23 million likes on his Facebook page and 77.2 million followers on his Instagram page.
Suits like this one are not uncommon. Houston Texans quarterback Deshaun Watson is currently involved in a similar legal dispute over three photos he posted to his social media accounts that were taken in 2017, 2018 and 2020 without permission or compensation, and there have been numerous cases of celebrities using photos on their social media accounts without permission and being sued for it.
In this case, Mitchell’s attorney has argued that James’ sought-after figure of $1 million dollars in damages is not only excessive, but it threatens the work of all sports photographers. So, was James’ Facebook post fair use or copyright infringement? We may not see a legal ruling one way or the other. After a hearing in December 2020, the presiding Judge has called on both sides to settle the dispute.
Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm at Stark.Law LLC.
This article is for informational purposes only. Contact a lawyer for legal advice.