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NFL Players’ Right of Publicity Claims Denied

The US Court of Appeals for the Eighth Circuit affirmed a district court summary judgment in favor of defendants, denying plaintiffs’ publicity rights claims in footage and interviews made by the defendants and finding that plaintiffs’ state law publicity rights claims were preempted because the subject films were expressive speech covered by the Copyright Act. J. F. Dryer et al. v. The National Football League, Case No. 14-3428 (8th Cir., Feb. 26, 2016) (Gruender, J).

The underlying lawsuit involved objections by NFL players to the use of their names and likenesses in NFL game footage and additional interviews in NFL-produced historical documentaries about “significant games, seasons and players in NFL’s history.” The suit was filed as a class action, but 20 of the players who originally sued settled with the NFL, while three players continued with the suit and opted out of a $42 million settlement. The complaint filed by the three remaining players alleged violations of their right of publicity and claims of false endorsement under the Lanham Act.

The district court relied on § 301 of the Copyright Act, which states that certain works are governed exclusively by the Copyright Act and that “thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.” The district court concluded that the players’ right of publicity claims were preempted by the copyright law, and that the players produced no evidence that the films contained “misleading or false statements” under the Lanham Act. The players appealed.

The Eighth Circuit affirmed the district court’s rejection of the right of publicity claims, agreeing with the district court that the films were expressive rather than commercial speech, and therefore the players’ right of publicity claims were preempted by the Copyright Laws. In rejecting the players’ argument that the film represented commercial speech and was therefore subject to state regulation, the Court noted that “consumers pay to view the films, either by purchasing copies or through subscriptions to broadcasters like ESPN, which licenses the films to show on its various television networks,” and that “because the films represent speech of independent value and public interest rather than advertisements for a specific product, the NFL’s economic motivations alone cannot convert these productions into commercial speech.”

The Court also denied the players’ claims of false endorsement under the Lanham Act because the Players produced no evidence that the films contained “misleading or false statements” regarding their current endorsement of the NFL.

© 2020 McDermott Will & EmeryNational Law Review, Volume VI, Number 89

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