Intellectual Property Blog

Who Owns the Moment? Rights in Sports Photos and Videos

One of the most addictive parts of sport is its ability to capture our imagination and create enduring memories. If we are lucky, we can capture visual depictions of those moments to relive the memories. Whether we are capturing the experience in person on our cameras or at home and watching the experience on our televisions or through social media, sports memories and video or photographic depictions of those memories go hand-in-hand. For me it was Kirk Gibson rounding the bases after his 1988 game winning homerun and Reggie Miller’s 8 points in 8.9 seconds (a/k/a the night he  directed a choke gesture to Spike Lee). For my son, by far the biggest sports fan I know, it is probably a tie between Omar Cooper’s toe-tap game-winning touchdown over Penn State or the Sports Illustrated cover-worthy diving touchdown by Indiana’s Heisman-winning quarterback that sealed Indiana’s improbable national championship. Many people reading this will know those images. But how? Not everyone watched those games. Those memories were captured and redisplayed. Many people claim rights in those redisplayed memories.  

Rights in sports images are complicated, as there are lots of “owners” involved. If I am at my youngest daughter’s ballet class (not necessarily a “sport,” but undoubtedly athletic), the balancing of rights exists but is less complicated. Photographing older kids in higher-level competition involves even more rights-holders. And rights are even further complicated when capturing images of sports teams—such as NCAA and professional sports teams—where licensing agreements and player unions are involved.

Who Owns the Image? Understanding Copyright at Capture

The first owner of any image is usually the person who captures the image. In most situations, photographers and videographers who capture the image are owners of those images under copyright law. Those images are copyright-protected immediately upon their creation. Therefore, many years ago when I captured my older daughter juggling a soccer ball without mistake for so long that my arm nearly fell off, I owned a copyright in that video. No one paid me or contracted for me to be there at the park too late into the evening watching her juggle. 

Had someone hired me for that image, that person or company might own the image. Works for hire exist where people are paid for the images. Whether they are news or other organizations with financial or some other interest in capturing images for content purposes, those organizations who pay the photographers or videographers to capture the images may own the images because they have contracted with those photographers and videographers to do so. But there may also be a licensing arrangement where both the photographer and the company that paid for the photographer’s services have rights in the images. This, too, is complicated.

Copyright vs. Public Use: Where the Line Blurs 

Owning the copyright in the image is not the end of the discussion. Copyright law exists to protect the owner of the work, yes, but the Constitution values the free use of copyrighted works for other purposes—such as art, news gathering and sharing, and comedy or criticism. Fair use of copyrighted works is fully codified in the Copyright Act, which means that copyrighted works can be used for many different purposes. But not all purposes. It’s complicated. And there are other rights holders in those images who may have something to say outside of the world of copyright protection.

NIL Rights: Why Subjects Have a Say 

I know what you are thinking: doesn’t the person juggling the soccer ball or dancing or, in the case of my son, sprinting toward the finish line have any rights in the image? They do; sometimes. Name, image, and likeness rights have existed for a long time, but they are far less developed than copyright law. Whereas copyright is specifically referenced in the United States Constitution and governed by one universal federal statute, individual rights in pictures, names, voices, and other personal characteristics are protected on a state-by-state basis. Most states have developing name, image, and likeness protections, though not every state has a statute that protects it. Moreover, not all statutes are the same; different states provide different rights to minors or the deceased. Other states provide no rights at all to these classes of people who may be the subjects of images. And different state laws may apply to different people depicted in photographs. It’s complicated.  

What About Everyone Else in the Frame? 

Further complicating the rights of the subjects featured in images are the rights of others also in the image. After all, my youngest is not the only dancer in that class, and my son isn’t the only person sprinting toward the finish line. Those other individuals who are captured in those images also have rights in that photograph of my child that I own because I created the photograph. I can’t just ignore those people’s rights. 

I know what you are thinking: “but we live in a world of social media where parents and children blanket sites with images featuring many subjects without objection! I am not infringing their rights when I do that, right?” Well, it’s complicated. You may not be legally liable for posting such images, but you are taking some risk that someone in that image could come back to haunt you legally. And that says nothing about rights that you may be waiving—such as kids’ rights in their NIL now or in the future or your own copyright claims—if you publish them on social media. 

Releases, Rights, and What You Sign Away 

Whether it is your kids’ schools or dance studios or other organizations where photographs are taken, you know the deal: you are going to receive releases that sign your kids’ names, images, and likenesses over to the organizations for their unfettered use. At minimum, that release ensures that no person depicted in those images can later complain about those images’ use on social media or other marketing efforts. And that release may provide much, much more. It feels icky, but few of us have the courage to withhold our consent. 

From Sidelines to Subscriptions: The Rise of Controlled Access 

The latest trend is for private equity companies to buy ice rinks and club hockey teams and charge parents and others subscription rates to watch broadcasts of those games, preventing those in attendance from livestreaming the competitions themselves. By owning the venues and forcing parents to sign over the name, image, and likeness rights of their kids to participate in these leagues, the private equity companies are able to monetize the “exclusive” video footage of minors and prevent others from doing the same. Some parents are fighting that practice, but it is a business model that will likely grow rather than retract in the future. 

Broadcast Rights and the Power of Licensing 

Other organizations own rights in individuals depicted in images, too. College and professional sports organizations have complicated contractual agreements involving teams, sports apparel companies, conferences, and the individuals depicted in images. Those collective rights are licensed to media companies that pay enormous sums of money to broadcast the live events that show those events and athletes to the viewing public. Those media companies, in turn, own the rights to monetize those events and seek to shut down rebroadcasts of those events by others. 

The Big Picture: Ownership Is Complex and Guidance Matters  

Many different interests are in play when it comes to capturing sports images. Yes, the person capturing the image “owns” that image, but that owner does not have unfettered rights to publish and monetize that image. Those individuals depicted in the images have name-image-likeness rights, and large organizations may own all rights in certain images. Again, it’s complicated—especially if you decide to sell your images. Posting images on social media may be acceptable and get you some likes, but it may result in legal fees if you ignore these competing interests. If you receive a notice that your image has been removed, you will have first-hand experience with the reality that your rights may not be absolute. Understanding how these rights intersect and finding the right guidance before you post, share, or sell can make all the difference. 

Bruce Paul is a Member of McBrayer PLLC, practicing in the firm's Louisville office. His law practice primarily focuses on intellectual property, copyright law, trademarks, commercial and business litigation, employment law, and infringement litigation. Mr. Paul can be reached at bpaul@mcbrayerfirm.com.

Services may be performed by others. This article does not constitute legal advice.