On January 26, 2010, a federal judge denied the National Football League’s motion for judgment on the pleadings in a class action brought by former players alleging violation of their publicity rights. In the opinion, the judge also encouraged the parties to reach a compromise that would benefit all former NFL players, rather than individual payments to the named plaintiffs in the case.

Several former NFL players filed a class action lawsuit last year, alleging that the football league violated federal and state laws by using old game footage featuring retired players in NFL Films’ promotional videos. See Dryer v. National Football League, 2010 WL 724112, Docket No. 09-cv-2182 (D. Minn. 2009). The athletes, who played in games featured in the videos, argue that use of their names and images in those videos constitutes false endorsement under section 43(a) of the Lanham Act, as well as violation of the players’ statutory and common law publicity rights. The NFL, in turn, filed a motion for judgment on the pleadings, arguing that the videos are expressive works that are entitled to First Amendment protection, and that the plaintiffs’ claims are preempted by the Copyright Act.

Senior District Judge Paul Magnuson held that, for the purposes of the NFL’s motion, the players had sufficiently shown that the videos constituted commercial speech and were not entitled to robust First Amendment protection. The opinion also found that the Copyright Act did not preempt the players’ right of publicity claims. The players’ did not challenge the validity of the NFL’s copyrights in the videos, but rather based their claims on the unauthorized use of their own identities. “A persona” the judge wrote, “can hardly be said to constitute a ‘writing’ of an ‘author’ within the meaning of the Copyright Clause of the Constitution. Thus, the work at issue is not within the subject matter of copyright.”

In closing, Judge Magnuson strongly encouraged the parties to settle the matter out of court. “Whether or not the NFL infringes on the players’ rights of publicity, the NFL might consider determining a fair share of the profit it receives for the films at issues and making a corresponding payment to the pension fund for retired players. By the same token, the Plaintiffs . . . might be willing to forego individual payment for the good of all former players. . . . The Court encourages the parties to consider whether the costs of litigation are justified in light of what appears to be a simple way to resolve the parties’ differences.”

This case demonstrates the complex interplay between First Amendment, copyright, and publicity rights and claims. The recent ruling also highlights the importance of taking a practical approach to legal matters and recognizing when a matter is ripe for settlement rather than litigation. For more information about Arent Fox’s expertise in the area of publicity rights, please contact:

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Halle Markus
markus.halle@arentfox.com
202.857.6113

Grace L. Applefeld
applefeld.grace@arentfox.com
202.857.6498