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.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.
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."
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.