6:30am PT by Eriq Gardner
Fox Argues Muhammad Ali Super Bowl Segment Is Free Speech
Fox Broadcasting is throwing its best counterpunch in a $30 million lawsuit brought by the entity that owns the intellectual property rights associated with boxing legend Muhammad Ali. On Tuesday, a California federal judge was asked to reject claims over a promotional spot during the 2017 Super Bowl that compared Ali's great career to that of NFL legends including Joe Montana, Joe Namath, Vince Lombardi and Tom Brady.
If Muhammad Ali Enterprises gets to control everything that Fox gets to say about the boxer, the network's lawyer writes, "the same result would follow for the dozens of other people whose 'identities' were shown in order to survey the historical events presented in the segment.... Put another way, the premise of MAE’s lawsuit necessarily is that Fox may not say anything about anyone in this segment unless that person (or their heirs or assignees) individually approves of the message Fox wants to use to provide some historical context for the Super Bowl, and Fox must also pay each of them for that privilege. However, the law does not permit public figures to censor and control what broadcasters, or anyone else, may say about them in order to cover an important event like the Super Bowl."
The lawsuit was filed in Illinois in October and asserts that the depiction of Ali amounts to a false endorsement under the Lanham Act and a violation of the Illinois Right of Publicity Act. The case has since moved to California with the consent of the parties, although it's uncertain whether the judge will be applying Illinois, California or New York law. Regardless, Fox has brought two motions in a bid to defeat the lawsuit. One is an anti-SLAPP motion under a California statute that would have the judge determine if First Amendment activity on a matter of public interest is involved. If so, MAE would need to demonstrate a likelihood of prevailing before the case moved further. The second is a motion on the pleadings whereby a judge would accept the truth of the allegations yet still determine whether viable claims are being made.
MAE is represented by Frederick Sperling, an attorney who most famously won $8.9 million in damages on behalf of Michael Jordan after a Chicago-area grocery store took out an advertisement in Sports Illustrated congratulating him on his induction into the Basketball Hall of Fame. This Ali case similarly posits that a sports celebrity's identity and endorsement is a valuable commodity and that the onus fell upon Fox to gain consent in a promotional endeavor.
In its court briefs, Fox recaps the segment in question. The theme presented, it puts to the court, was what it means to achieve "greatness."
Through dramatic re-enactment and archival news footage, the segment recaptures Ali's 1964 title bout with Sonny Liston, his refusal to be inducted into the U.S. Army, his title loss to Joe Frazier and his comeback bout with George Foreman, among other events. The narrator then explains that “in the Super Bowl, many have marched toward this same confrontation with greatness," and using the same techniques of re-enactment and archival news footage, some key moments in Super Bowl history are recounted.
Fox, represented by Nathan Siegel at Davis Wright Tremaine, argues that the segment has a noncommercial purpose and protected as a "news, public affairs, or sports broadcast or account" under Illinois law or is exempted from publicity rights protection as an expressive work under California law. The broadcaster also raises other issues, including whether postmortem common-law right of publicity extends to heirs of deceased individuals, how MAE hadn't timely registered Ali's publicity rights, and briefly, how such rights are preempted by copyright law, a subject of some recent controversy in the legal community thanks to a decision pertaining to athletes featured in video games.
As for the Lanham Act claim, Fox argues that it didn't explicitly mislead consumers about the segment's source. The motion brief argues that MAE's allegation of merely implying some endorsement fails to satisfy legal standards.