Friday, February 26, 2016

8th Circuit finds copyright preemption of publicity claim

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 8th 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.

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