Plaintiffs, current and former college athletes, sued the NCAA;
they also sued Collegiate Licensing Company and Electronic Arts, but settled
those claims. This decision concerned
only the antitrust plaintiffs, not the pure right of publicity plaintiffs
(whose allegations are that the NCAA misappropriated their names, images, and
likenesses in direct violation of statutory and common law rights of
publicity). The antitrust plaintiffs, by
contrast, alleged that the NCAA violated antitrust law law by conspiring with
EA and CLC to restrain competition in the market for the commercial use of
their names, images, and likenesses.
The NCAA required student-athletes to sign releases in order
to be eligible to compete. The releases
relinquished all of their righst to the commercial use of their images in
perpetuity. In reliance on these
allegedly “purposefully misleading” forms and on its bylaws, the NCAA sold or
licensed student-athletes’ identities to third parties like CLC and EA. As a result of a price-fixing
conspiracy/group boycott, student-athletes couldn’t receive compensation for
the commercial exploitation of their identities after they stopped competing,
allegedly interfering with their ability to compete in the market for the
acquisition of “group licensing rights” for student-athletes’ identities in
game broadcasts, rebroadcasts, and videogames. The proposed class definition now covers
student-athletes whose names, images, and likenesses were featured specifically
“in game footage or in videogames” (down from an initial proposal covering
apparel, highlight films, and other NCAA-branded merchandise).
The court first rejected the NCAA’s argument that precedent
barred the antitrust claim. Turning to
the specific publicity rights issues, the NCAA argued that the First Amendment,
and California statutory law, barred any assertion of a right of publicity in
the use of student-athlete identities in game broadcasts. This was relevant because their antitrust
claims depended, in part, on the existence of a “group licensing” market for
such broadcasts/rebroadcasts. Because of
the recent
terrible ruling on publicity rights in this litigation, the NCAA couldn’t
make this argument for videogames, so the antitrust claims for that market
remained.
Although the California statute provides that an individual
has no right of publicity in the “use of [his or her] name, voice, signature,
photograph, or likeness in connection with any news, public affairs, or sports
broadcast or account,” that only covers California law. Plaintiffs aren’t barred from licensing their
publicity rights in any other state that recognizes the right of publicity, and
the NCAA didn’t show that every other state has the same limits.
Also, the First Amendment was not a limit. “Neither the Supreme Court nor the federal
courts of appeals have ever squarely addressed whether the First Amendment bars
athletes from asserting a right of publicity in the use of their names, images,
or likenesses during sports broadcasts.”
Zacchini didn’t provide clear
guidance for a balancing test, but other cases have allowed related
claims. Pooley v. Nat’l Hole-In-One
Ass’n89 F. Supp. 2d 1108 (D. Ariz. 2000), held that the First Amendment did not
bar a professional golfer’s right-of-publicity claim against a company that
used footage of him to promote its fundraising events, because of the “strictly
commercial” purpose. The original
broadcast may have been protected, but not its “subsequent unauthorized
reproduction.” Dreyer v. NFL, 689 F. Supp. 2d 1113 (D. Minn. 2010), involving
NFL Films’ promotional videos, “also held that use of footage of an athlete’s
past accomplishments is not entitled to First Amendment protection when it is
done exclusively for commercial purposes.”
Whether a use is primarily commercial involves a highly
fact-specific analysis. Though it’s a
question of law, it can’t always be decided at the pleading stage. The plaintiffs provided only general
descriptions of the broadcasts and rebroadcasts in which they asserted
publicity rights; the complaint mentioned live game broadcasts, rebroadcasts of
“classic games,” highlight films, and “‘stock footage’ sold to corporate
advertisers,” but offered scant details about each. Still, construing the complaint in the light
most favorable to plaintiffs, it was plausible that at least some of the
footage, particularly promotional highlight films and stock footage sold to
advertisers, was used “primarily” for commercial purposes. If the NCAA re-raised the issue on summary
judgment, plaintiffs would need to submit evidence that the relevant broadcast
footage, including both archival games and live broadcasts, was used primarily
for commercial purposes.
Finally, the court rejected the NCAA’s copyright preemption
argument because plaintiffs weren’t seeking to protect their own copyrights but
rather to license commercial uses of their images; persona isn’t copyrightable
so §301 doesn’t apply; and the underlying claims were based principally on an
injury to competition, not simply misappropriation. “Intellectual property rights do not confer a
privilege to violate the antitrust laws.”
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