Court Ruling: The NFL Isn't Violating Player's Publicity Rights By Selling Videos Of Historical Game Footage

from the game-time dept

While the NFL isn’t necessarily great at preserving its own historical footage in sum total, the fact is that the league makes a great deal of money by selling copies of game footage and interviews from seasons since past. Recently, three former players opted out of a settlement the league had agreed to in a class action case and decided to pursue their own rewards for the NFL’s use of old game footage and interviews. Their theory is that the league violated their publicity rights. Their theory is wrong.

Now, thanks to the First Amendment and two other reasons, U.S. District Judge Paul Magnuson has ruled that the claims can’t survive. In coming to the decision, Judge Magnuson looks at various productions like NFL Films’ “1973 Houston Oilers Season Highlights” and “Cliffhangers, Comebacks & Character: The 1981 San Diego Chargers.” These productions weren’t about Dryer, Bethea or White per se. The players were nevertheless shown on field, sometimes mentioned by name, and in some instances, interviewed about their playing days.

The judge finds that these productions weren’t commercial speech. The plaintiffs brought forward a theory that the productions were advertising because they served to enhance the NFL’s brand, but the judge says that “brand enhancement alone is not sufficient to render a production advertising as a matter of law.”

Because the speech was deemed to not be advertising in nature, it falls under the protection of the First Amendment. That would be enough for the publicity rights claim to fall apart. Add to that the judge’s finding that the former players were well-aware that game footage and interviews would be used in future broadcasts or publications before participating in the games or the interviews and you have a slam dunk dismissal. Even so, Judge Magnuson wasn’t done.

Further, and not insignificantly, the judge finds a third reason why the lawsuit must fail. The judge writes that the NFL has the right to exploit “copyrighted game footage in expressive works such as the NFL Films productions at issue here. The NFL’s valid copyright in the game footage forecloses Plaintiffs’ publicity claims.”

While I’m no fan of the current state of copyright in this country, seeing one form of intellectual property cannibalize another, more horrible form of IP is admittedly entertaining. Now, the NFL wins this case, but as the article points out, the NCAA may be the most interested observer in the metaphorical courtroom. The college sports megalith is in the middle of appealing the O’bannon case that is currently preventing me from playing NCAA Football ’15 and could theoretically bring the association to its knees, all while giving way to an era in which college athletes get paid for their service. The NCAA’s entire argument in that case rested on First Amendment grounds, which would appear to be bolstered by this NFL win.

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Comments on “Court Ruling: The NFL Isn't Violating Player's Publicity Rights By Selling Videos Of Historical Game Footage”

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10 Comments
mr. sim (profile) says:

the ncaa is going to be screwed. this is a first amendment case, the ncaa’s case boils a contract matter. free speech has historically been chained under contracts. that’s why celebs with huge endorsement deals have morality clauses and the courts have ruled them legal. and the courts have also penalized people for acting in bad faith or illegal business behaviors in employment contracts.

Maurice Michael Ross (profile) says:

NFL Decision

This is a wise and unsurprising decision. Legally, however, it has almost no impact on cases involving use of player images in games. Further, NFL players are compensated well in exchange for which they consent to the use of their images by their teams and leagues. College players are not paid (at least legally), which makes a big difference.

Anonymous Coward says:

The judge writes that the NFL has the right to exploit “copyrighted game footage in expressive works such as the NFL Films productions at issue here. The NFL’s valid copyright in the game footage forecloses Plaintiffs’ publicity claims.”

So if I have a valid copyright in my photo of a celebrity, I can use it however I like? I’m confused on what publicity rights actually cover, if this is going to be the standard.

John Fenderson (profile) says:

Re: Re:

“I’m confused on what publicity rights actually cover”

That’s understandable because publicity rights as such aren’t federal law (the closest thing in federal law are laws against unfair competition.) “Publicity rights” are largely state law, and differ from state to state. Also, only about half the states have a publicity rights law at all.

Maurice Michael Ross (profile) says:

You can’t use a photograph just because you own the copyright. Publicity rights protect the commercial exploitation of the image of a celebrity—i.e., you have to pay a celebrity to use his image to promote your product or service, or to use the image to bring players to your games. The right publicity differs from state to state but it is fairly well-understood among lawyers—it is about using celebrity images to endorse products or improve sales. You can’t use celebrity images in games without permission because the purpose of the use is in part to sell the game. The First Amendment protects use of images for purposes of journalism or commentary etc., but not to sell products such as games. And use of an image in a game is not for purposes of journalism, commentary, etc–it is to create a new game experience for players which is a commercial use.

John Fenderson (profile) says:

Re: Re:

“The First Amendment protects use of images for purposes of journalism or commentary etc., but not to sell products such as games.”

I know of nothing in the first amendment that limits its applicability to noncommercial use. In fact, courts have ruled quite a lot that commercial use is protected as well.

Publicity rights is a special case, where the law is trying to balance two competing rights. Personally, I think the very idea is utterly and completely misguided. The use of celebrity images should be prohibited under fraud (implying an endorsement that doesn’t exist) or unfair competition laws. Which is exactly how such cases are handled at the federal level and in about half of the states.

Publicity rights laws are unnecessary and are often abused. They need to go away.

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