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 Post subject: Judge denies motion to dismiss on use of athletes' images
PostPosted: Tue Sep 23, 2014 12:42 pm 
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Judge denies motion to dismiss suit on use of athletes' images
Steve Berkowitz, USA TODAY Sports 9:36 p.m. EDT September 22, 2014

Another heavyweight in the business of college sports is becoming ensnared in a potentially costly lawsuit related to the use of athletes' images.

On Monday, a federal judge made public her denial of CBS Interactive's motion to dismiss a proposed class-action suit concerning the marketing and sale of college athletes' photographs through school athletics websites.

CBS Interactive is a division of CBS Corp., a primary media partner of the NCAA and the Southeastern Conference. In addition to the popular website, CBS Interactive has a unit that provides a range of website management and e-commerce services for more than 100 college athletics departments.

U.S. District Judge Josephine L. Staton's basic decision not to throw out the case at this point is not surprising. But the substance of her reasoning — especially in the wake of tart comments she had for CBS Interactive's lawyer during a hearing on the matter Aug. 29 — could be signs of trouble for CBS Interactive. If the case goes to trial, the company potentially faces hundreds of millions of dollars in statutory penalties alone; the suit also seeks punitive damages and CBS Interactive's profits from the photo sales.

Robert Carey, a lawyer for the plaintiffs, said the next step in the suit will be for the sides to set a schedule for the rest of the case, beginning with discovery — the process in which the sides seek to obtain facts and evidence from each other.

Carey said nearly 650,000 images are involved in the case; California law provides for the possibility of a $750 penalty per image or per person in the images.

Use of college athletes' names and likenesses is at the center of the Ed O'Bannon class-action antitrust lawsuit against the NCAA, which is now in its sixth year and in only the preliminary stages of the association's appeal to the 9th U.S. Circuit Court of Appeals. In addition, the NCAA, video game manufacturer Electronic Arts and Collegiate Licensing Co., the nation's leading collegiate trademark licensing and marketing firm, are involved with ongoing settlements totaling $60 million that stemmed from suits concerning college athletes' depictions in video games.

The case involving CBS Interactive originally was filed in June 2013 against two smaller companies, which agreed to a proposed settlement in March 2014. According to court documents, that deal was set up to:

—Give $4.25 million to the proposed class of athletes and their lawyers.

—Preserve the plaintiffs' ability to sue CBS Interactive.

—Assign to the plaintiffs a claim the two initial defendants could have pursued against CBS Interactive because CBS Interactive allegedly failed to fulfill an obligation it purportedly had to secure and defend the two smaller companies against this type of a legal action.

Given the initial defendants' decision to settle, when the plaintiffs filed an amended version of the suit in April 2014 that added CBS Interactive as a defendant, it seemed unlikely that CBS Interactive would get a swift dismissal. In addition, when considering a motion to dismiss at this stage of this type of case, federal judges must give considerable deference to plaintiffs.

But Staton not only did that, she also strongly indicated that she saw fundamental problems with several of the arguments that CBS Interactive made against the plaintiffs' case, which was filed on behalf of former Texas-El Paso football player Yahchaaroah Lightbourne.

Staton "took a pretty encyclopedic view of the law," said Carey, "and she came down on the players' side."

CBS Interactive spokeswoman Christine Castro said Monday night the company had no comment.

The suit alleges that schools — through their CBS Interactive-assisted athletics websites — sold "thousands" of photographs of athletes, as well as associated merchandise such as frames and calendars "without offering compensation to or obtaining consent from these student-athletes." The suit also points out that NCAA rules bar athletes from consenting to the use of their names or photos in a commercial product, bar schools from permitting athletes' names or photos to be used in a commercial product without athletes' consent and require schools and athletes to take steps to stop such activity if it is occurring..

With a number of exceptions California law prohibits the use of a person's photograph for commercial purposes without their prior consent. CBS Interactive argued that one of those exceptions — use in connection with a "sports broadcast or account" — applied here. Staton disagreed, ruling that CBS Interactive's view "stretches the meaning of 'account' " under the law, noting that at least one photograph in the complaint shows Lightbourne "at a routine practice."

In addition, she wrote that the prior court cases CBS Interactive had cited in support of its view, actually do the opposite.

This parallels one of Staton's comments at the hearing, when, according to the transcript, she told CBS Interactive's lawyer, Yehudah Buchweitz: "I don't think a reliance on (one of the cases he cited) is going to help you."

When Buchweitz brought up other cases that his side had raised among the footnotes of a written filing, Staton said: "If they were significant, they would not be in footnotes."

CBS Interactive also argued that the First Amendment protected the images being sold because they involved matters of public interest. But Staton wrote that the complaint "plausibly alleges" that the images sold were "not used to report on, publish and express matters in the public interest." Citing a prior case, she added that "even likenesses captured at newsworthy events do not enjoy automatic First Amendment immunity … the later use must itself 'contribute significantly to a matter of the public interest' to enjoy First Amendment immunity."

There are questions about whether Lightbourne himself gave express or implied consent for the use of his photograph, but as the case may pertain to many athletes who have not signed a specifically worded release form but knew pictures were being taken of them at games and practices, Staton wrote that while Lightbourne's activities were the subject of media interest, this "does not establish implied consent to the online resale of his likeness in (a) photo store."

R S wrote:
I'm sure she still wakes up in cold sweats and night terrors of Peyton's wrinkly ball sack pitter-pattering on her forehead.

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