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Case: John Facenda v. N.F.L. Films
Court: U.S. Court of Appeals for the Third Circuit
Date: Sept. 9, 2008
Facts: John Facenda is a Philadelphia broadcasting legend who provided his voice to many productions of NFL Films before his death in 1984. More than two decades after Facenda’s death, NFL Films used small portions of his voice-over work in a cable-television production about the making of football video game “Madden NFL 06.” The estate of Facenda sued NFL Films, claiming the program falsely suggested that Facenda endorsed the video game, violated federal trademark law, and was an unauthorized use of Facenda’s name or likeness in violation of Pennsylvania’s “right of publicity” statute. NFL claimed copyright authority to use his voice. The District Court granted summary judgment to the estate.
Holding: The Third Circuit affirms the grant of summary judgment on the right-of-publicity claim, but vacates the District Court’s judgment on trademark and remands the case back for trial. The Third Circuit holds that the program served a promotional purpose and that Facenda did not waive his endorsement rights by signing a “standard release” with the NFL. On remand, the Third Circuit instructs the District Court to determine whether the NFL’s program was likely to cause confusion among consumers regarding the Estate’s sponsorship or approval of Madden NFL. The court further agrees that Pennsylvania’s right-of-publicity statute protects Facenda’s voice.
However: The Third Circuit tries to limit the impact of this case as only pertaining to commercial speech: “Despite our holding, we emphasize that courts must circumscribe the right of publicity so that musicians, actors, and other voice artists do not get a right that extends beyond commercial advertisements to other works of artistic expression. If courts failed to do so, then every record contract or movie contract would no longer suffice to authorize record companies and movie studios to distribute their works.”
Here’s the entire decision.
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