John Frederick Dryer, Elvin Lamont Bethea and Edward Alvin White are former professional football players who played for the National Football League during the 1960s, 1970s and 1980s. All three players appear in films produced by league-affiliate NFL Films, which compiles clips of historical game footage into theme-based programs describing historically significant football games, or a series of games, and the players. Plaintiffs sued the NFL as part of a putative class action alleging that the films containing footage of their game performances violated their publicity rights as well as their rights under the Lanham Act. Although the NFL settled with 20 players, Dryer, Bethea and White opted out of the settlement.
Both sides moved for summary judgment. The district court ruled in favor of the NFL, holding that Section 301(a) of the Copyright Act pre-empted the players’ right of publicity claims. The district court also granted summary judgment to the NFL on the players’ Lanham Act claims, pointing out that the Lanham Act applies only to commercial speech. Moreover, the films did not pose a risk of confusing consumers as to the players’ affiliation with, or endorsement of, the NFL..
On appeal, the Eighth Circuit affirmed the district court’s ruling on the right of publicity claims. While the initial performance of a game is an “athletic event” outside the scope of copyright, the Copyright Act was amended in 1976 specifically to ensure that simultaneously recorded transmissions of live performances and sporting events met the Act’s requirement that the original work of authorship be fixed in a tangible medium of expression. Because the players challenged the NFL’s use of their likenesses or identities solely in the context of the publication of the recorded game footage, their right of publicity claims challenged works that fell within the subject matter of copyright under the Copyright Act.
The court rejected the players’ argument that their right of publicity claims fell outside the scope of copyright law because the films represented commercial speech, which states have a legitimate interest in regulating. The Eighth Circuit agreed with the district court’s conclusion that the films constituted expressive speech under the three-factor test set forth in Porous Media Corp. v. Pall Corp.: (i) whether the speech is an advertisement, (ii) whether it refers to a specific product and (iii) the speaker’s economic motivation for the speech.
First, the films represented speech of independent value and public interest, and were not advertisements that encouraged consumers to purchase some other product or service. Second, although the films referred to the NFL, they did not reference the league as a specific product. Rather, the films referenced the league only in the context of narratives of past games, not as a present-day product. Third, the fact that the NFL was economically motivated to sell the films did not alone convert the films into commercial speech. Therefore, the court concluded that the films constituted expressive speech, and that the players’ right of publicity claims were pre-empted by the Copyright Act.
The Eighth Circuit also affirmed the district court’s grant of summary judgment on the players’ Lanham Act claim for false endorsement, finding that the players failed to present evidence that any statements in the films were “literally false as a factual matter” or “implicitly convey a false impression, are misleading in context, or are likely to deceive consumers.” The players neither disputed that the footage depicted anything other than their actual performances in NFL games, nor identified any statements that might mislead viewers to believe that the players currently endorsed or associated themselves with the NFL. Although the players presented survey evidence suggesting that some viewers may have misunderstood the extent to which the players continued to associate with or endorsed the league, that misunderstanding alone was insufficient to overcome summary judgment.