Intellectual Property Insights from Fishman Stewart PLLC
Newsletter – Volume 24, Issue 3
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Detroit Lions In Copyright Dispute Over Barry Sanders Statue
By Norm K. Freda
The Detroit Lions captured the hearts of football fans everywhere during their recent playoff run, which unfortunately came to an end last weekend when the Lions lost to the San Francisco 49ers. This season marked many ‘firsts’ for the Lions including unveiling the first statue at Ford Field immortalizing a former Lion: Barry Sanders.
However, some may not consider the Sanders statue a clear ‘win’ for the Detroit Lions franchise.
Lions fans celebrated clear wins for the Detroit franchise during this wildly successful season: it was the first time the Lions won an NFC North Division Championship, the first time the Lions hosted two home playoff games, and the first time the Lions won back-to-back playoff games in over 65 years (the last time was in 1957).
The unveiling of the Sanders statue, however, led to photographer Allen Kee filing a lawsuit against the Lions and several other entities, including Getty Images, Fanatics, Dick’s Sporting Goods, and McFarlane Toys, for copyright infringement.
The long overdue statue of Barry Sanders, arguably the greatest running back of all time and almost certainly the greatest Lion of all time, was unveiled in September 2023. The bronze marvel stands eight feet tall and features Sanders in one of his particularly well-known juking, change-of-direction poses.
During a game against the Pittsburg Steelers in 1995, Sanders made an unbelievable cut, completely changing directions in the blink of an eye. A video clip of Sanders’s cut is featured around the 4:00-4:30 mark of the Lions’ minidocumentary about creating the Sanders statue. Honoring the franchise legend with a statue replicating Sanders’s iconic pose during this memorable play seems like a perfect design choice and the sculptors did a masterful job recreating it.
A freelance photographer, Kee was fortunate enough to have an unobstructed view of Sanders’s cut from the perfect angle and captured it with a photograph. Kee’s photograph has become an iconic image of Sanders. It is prominently featured in Sanders’s biography on the Pro Football Hall of Fame website. Sanders’s pose during his cut, as viewed from the same perspective as Kee’s photograph, is even featured on Sanders’s own website and in his registered trademark.
Kee contends in his copyright infringement complaint that the Sanders statue violates his exclusive rights under the U.S. Copyright Act, specifically that he did not authorize the Lions “to create a derivative work slavishly based on his” photograph. In the Lions’ minidocumentary, a massive copy of Kee’s photograph can be seen in the sculptors’ studio (see still frame from the video here) suggesting that elements of the Sanders sculpture may be based at least partially in Kee’s photograph—a relevant factor to a court that might ultimately decide whether the statue is a “transformative fair use” or an unauthorized and infringing derivative work.
Lions fans are hoping the copyright dispute between Kee and the Detroit Lions can be resolved and allow the Sanders statue to remain at Ford Field for years to come, and that the Lions’ recent success continues well into the future.
Norman K. Freda is an attorney at Fishman Stewart and practices in the fields of patent, trademark, copyright law, and litigation. He holds a BS degree in Applied Engineering Sciences from Michigan State University. Check out his bio.
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