Defense wins championships. A strong defense also wins lawsuits. On Friday, in a ruling that will be privately cheered by television broadcasters, the National Football League convinced a federal judge in Minnesota that its defense was sturdy enough to provide a bulwark against three retirees who were objecting to the use of their names and images.
The lawsuit came from former Los Angeles Rams defensive end Fred Dryer, former Houston Oilers defensive end Elvin Bethea and former Minnesota Vikings offensive guard Ed White. The three had opted out of a $50 million class action settlement to pursue the NFL for using video footage of them playing football in alleged violation of their publicity rights.
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.”
As expressive rather than commercial speech, the productions are conferred with full protection under the First Amendment.
The judge must then balance free speech with the plaintiffs’ right of publicity — a tension that has popped up in past disputes over fantasy sports games and trading cards. From a reading of these cases, the judge writes, “the balance between Plaintiffs’ publicity rights and the constitutional protection due the uses involved here tips decidedly in favor of the NFL.”
Judge Magnuson also looks at specific exceptions to publicity rights. In California, for example, there’s one for “newsworthiness.”
“Even if Plaintiffs challenged whether the productions were publishing or reporting,” he writes, “it is clear that the productions at issue are ‘a means for obtaining information about real-world football games,’ and are therefore ‘publishing or reporting factual data’ within the meaning of the California newsworthiness defenses. The productions show football players playing in football games. The productions’ use of music, narration, and camera angles may dramatize those games, but the productions do not convey information other than true information about ‘real-world football games.'”
The NFL, represented by a team at Debevoise & Plimpton as well as one at Faegre Baker Daniels, also wins on separate grounds that the former players knew that game footage was being captured for subsequent productions and willingly gave interviews. The judge accepts the league’s argument that the players thus consented.
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.”
The NFL wins the lawsuit, but it’s the NCAA and television broadcasters that might be most encouraged by the latest decision that players can’t win a publicity rights lawsuit thanks to the First Amendment, consent and copyright preemption. The college sports league is currently before the 9th Circuit Court of Appeals in the O’Bannon case. It’s an antitrust action that has resulted in a judge’s decision to usher in pay for athletes, but the NCAA has been pointing to the First Amendment as one of the reasons why the athletes never had a case to begin with.
And as for television broadcasters, it was less than a week ago that they were sued in Tennessee for violating athlete publicity rights.
A district court ruling in Minnesota won’t bind courts in the ongoing NCAA controversy, but it’s certainly a positive sign for broadcasters as well as some potential kindling for Supreme Court review down the road. Which side will be on offense remains to be seen.