from the end-zone dept
It’s nearly time for the Super Bowl, the NFL’s orgy of advertising with a bit of football mixed in to keep things interesting. And, as per usual, the NFL has been running around pretending that it has intellectual property rights that it doesn’t have. This year, while not an entirely unique thing, the NFL has also found a willing partner in the city of Phoenix when it comes to enforcing these overbearing non-rights. Back in December, for instance, we wrote about a lawsuit brought by one property owner against the city over its “Clean Zone” ordinance. That ordinance required any citizen of the city who wanted to post any new temporary signage in the city to get approval from the government and/or the NFL first.
You already know where this is going. The propery owner in question, one Bramley Paulin, sued on First Amendment grounds with the help of The Goldwater Institute. As we wrote at the time, there appeared to be little reason to think the ordinance would survive any real 1A challenge. And, as a matter of fact, that is exactly what happened. In early February, the court issued its ruling, noting that the ordinance violated Paulin’s First Amendment rights and, with respect to him at least, the city was required to consider his application without the new requirements in the new ordinance.
A Maricopa County judge has ruled that Phoenix’s signage restrictions leading up to the Super Bowl were “unconstitutional” and ordered the city to allow a property owner the chance to put up signs.
Maricopa County Judge Bradley Astrowsky determined that the city’s “clean zone” resolution was an “unconstitutional delegation of government power,” the Thursday ruling said.
“The Resolution provides no standards to guide decision-maker’s discretion. It was also unconstitutional of the City to delegate this power to an unaccountable private actor,” the ruling states.
So what did Paulin want to do that the NFL would object to? He wants to use his property to allow companies to advertise on or near it temporarily during and in the lead up to the Super Bowl.
“I wanted to lease out my property,” Paulin said. “You could imagine of all the companies that are out there who would love the opportunity to sell their products to market their name.”
One of the companies Paulin communicated with was Coca-Cola, which was not willing to strike a deal with Paulin due to the “clean zone.” A Coke ad would have more than likely been immediately struck down due to the Super Bowl’s longstanding partnership with Pepsi.
Except the rights the NFL has to the Super Bowl don’t remotely allow it to simply refuse any non-partner advertisers within a geographic area. That’s absurd. If Coke wants to put up advertising that doesn’t in any way reference the Super Bowl, but merely is displayed to coincide with the timing of the Super Bowl, there isn’t an intellectual property law that exists in American law that allows the NFL to prevent that. Other than, that is, the Phoenix Clean Zone ordinance, which was deemed unconstitutional. The city’s attempt to hurriedly amend the law to remove the NFL’s involvement in administering it after the lawsuit was filed also did not impress the judge.
In summary, the judge found that Phoenix enacted an unconstitutional resolution and then “exacerbated the problem” by choosing to fix the problem when it was already too late for the plaintiff to exercise his speech rights.
“This is the first decision we’ve seen in the country where we’re a court has been emphatic that you can’t have Super Bowl, Super Bowl subcommittees, making decisions about what can and can’t be said during the Super Bowl,” said Jon Riches, vice president for litigation with the Goldwater Institute.
And there you have it. Finally, some flaws in the governmental armor the NFL has long built around itself to allow it to be an IP bully.
Perhaps this will lead to companies and the public probing at the other overbearing instances of IP enforcement the NFL engages in. As we’ve long said, you can say “Super Bowl” all you want, so long as you’re not confusing the public into believing there is some sponsorship or association with the NFL.