Marshall v. ESPN, No. 15-5753 (6th Cir. August 17, 2016)
Plaintiffs claimed that, as college football and basketball players, they had publicity rights in their names and images as used in TV broadcasts. “Whether referees, assistant coaches, and perhaps even spectators have the same rights as putative licensors is unclear from the plaintiffs’ briefs.” Tennessee’s right of publicity statute, however, explicitly excluded any “sports broadcast,” and Tennessee refused to recognize any common-law right of publicity. This also killed a Sherman Act claim, since there could be no conspiracy to control a non-existent right.
Plaintiffs’ Lanham Act claims failed because—well:
The theory here is that if, say, ESPN shows a banner for ‘Tostitos’ at the bottom of the screen during a football game, then consumers might become confused as to whether all the players on the screen endorse Tostitos. Suffice it to say that ordinary consumers have more sense than the theory itself does.
But honestly, is this theory (which was justly rejected) any more ridiculous than the theory that consumers might think that a fast food restaurant endorsed a movie about beauty queens? That consumers might think that Jose Cuervo had partnered with a whiskey company because both used red wax seals among many other packaging devices? That Budweiser might have endorsed a parody ad for Budweiser Oily? And, if we have nothing but common sense to guide us here, on what basis exactly is the players’ theory so easily distinguishable from those successful claims that it doesn’t even reach plausibility?