Rebecca Tushnet

Dryer v. National Football League, No. 14-3428 (8th Cir.
Feb. 26, 2016)

 

I blogged
about the district court ruling and wrote an
amicus brief in the appeal; now the 8^th Circuit affirms the
rejection of football players’ right of publicity and Lanham Act claims based
on clips in which they appeared in films by NFL Films.  The films depicted “significant games,
seasons, and players in the NFL’s history” via compilations of game footage and
interviews with players, coaches, and other individuals involved in the game.  NFL Films sells copies to consumers and
licenses performance rights to distributors, as well as broadcasting some films
on its own TV network and website.  The
appellants appeared in game footage and interviews in the films; they didn’t
challenge that NFL Films had consent to use the interviews, but based their
claims on appearances in the game footage.

 

On the right of publicity claim, the court of appeals
affirmed the district court’s copyright preemption holding.  Appellants argued that their performances in
football games were part of their identities rather than “fixed” works eligible
for copyright protection.  Nope—copyright
specifically includes fixed recordings of live sports performances.  NFL Films had permission to record those live
performances, and had valid copyrights to its footage.  Thus, the right of publicity claims were
based on a work within the subject matter of copyright.

 

The remaining §301 question was whether there was any “extra
element” to save the claims.  The purpose
of copyright is to “suppl[y] the economic incentive to create and disseminate
ideas.” The purposes of the right of publicity are “the desire to provide
incentives to encourage a person’s productive activities and to protect
consumers from misleading advertising.” Because of the state’s consumer
protection interests, a right of publicity claim based on use of a copyrighted
work in an ad could have purposes unrelated to copyright’s aims (I like that “could”—there
are cases in which no consumer protection purpose would be implicated, even in
an ad).  But for noncommercial uses, such
a claim “seeks to subordinate the copyright holder’s right to exploit the value
of that work to the plaintiff’s interest in controlling the work’s
dissemination” and thus attempts to claim “exclusive rights within the general
scope of copyright,” triggering preemption.

 

Appellants argued that the films were commercial speech because
they were ads for “NFL-branded football,” a specific product that the films
promote for the NFL’s economic benefit. 
But the films didn’t propose a commercial transaction; they didn’t refer
to the NFL as a specific product but rather as part of historical events; and
the consumer demand for the films demonstrated that they existed as “products”
in their own right. “[T]he NFL’s economic motivations alone cannot convert
these productions into commercial speech.”

 

On the Lanham Act claims for false endorsement, the court of
appeals for some reason applied the §43(a)(1)(B) literal falsity/implicit
falsity distinction while identifying the claims as being based on §43(a)(1)(A).  It further noted circuit precedent that evidence
that some consumers “misunderstood” a statement is insufficient to overcome
summary judgment where the statement is not objectively “misleading [or]
false.”  Appellants relied on “survey
evidence showing that a statistically significant number of survey participants
concluded upon viewing the films that the depicted players endorsed the NFL.”  But there was no evidence that the films
included misleading statements about the players’ current relationship with the
NFL.  There was no evidence of literal
falsity, and no evidence that the films “implicitly convey a false impression,
are misleading in context, or [are] likely to deceive consumers.”  (Um, other than the surveys, which is why you
need Rogers under current trademark
law; this is screwy logic for the right result, and maybe it’s better to frame
it this way because it may provide a basis for a broader attack on the
laughably broad concepts of false endorsement that other courts have accepted.)  The films showed only their actual
performances in past NFL games. “Although the films as a whole may portray the
NFL in a positive light, nothing in the films implies that the appellants share
that perspective,” especially not the clips of their game performances. Thus,
the false endorsement claim failed as a matter of law.