Thursday, June 11, 2015

Student athletes lose another right of publicity claim

Marshall v. ESPN Inc., No. 14-01945 (M.D. Tenn. Jun. 4, 2015)
Current and former student athletes who played NCAA football or basketball sued college conferences, networks, and licensors for violating their rights of publicity and foreclosing them from the market for their rights of publicity.  To participate in NCAA sports, athletes have to sign a form allowing the NCAA to use their names and pictures to promote NCAA events, activities or programs.  And they don’t have much choice about NCAA, since there’s no comparable alternative and the NFL and NBA don’t let players enter directly from high school. To play competitively, student athletes have to get a scholarship and sign over their rights.  The NCAA and defendants make billions, and the student athletes get essentially nothing, though each has a fair market value of over $1 million (not including scholarship).
Plaintiffs thus alleged that defendants violated their Tennessee statutory and common law rights of publicity, the Sherman Act, and the Lanham Act, and were unjustly enriched. The Sherman Act claims failed because you can’t win an antitrust case without a signed affidavit from that monocle guy from Monopoly, so no more about them.
Tennessee loves property rights, and “property includes all rights that have value.” Because a celebrity’s right of publicity is valuable, it is property.  State ex rel Elvis Presley v. Crowell, 733 S.W.2d 89, 96-97 (Tenn. Ct. App. 1987). (Somewhere, legal realists are weeping.)  There is both common-law and statutory protection; the Tennessee Personal Rights Protection Act (TPRPA) “was intended to ‘create an inheritable property right for those people who use their names or likenesses in a commercial manner, such as an entertainer or sports figure – someone who uses his or her name for endorsement purposes.’”
The court found that the statute supplanted the common-law right (at least in its coverage of publicity rights of athletes in sports broadcasts).  Two courts in Tennessee had found the statutory and common-law rights to be co-extensive, and no Tennessee court had recognized a right to publicity in sports broadcasts. Moreover, when there’s a conflict between the common law and a statute, the statute must prevail.  The TPRPA specifically defined the right of publicity as it relates to sports broadcast, which had not been litigated before its enactment.
Even if the common-law right wasn’t coextensive with the statute, and even if the specific statutory definition didn’t control, the plaintiffs’ allegations still didn’t set forth a plausible claim for relief. There was no relevant authority for the proposition that participants in sporting events have a right to publicity under the common law. The other jurisdictions to decide the issue have almost all found against such a right, except for In re NCAA Student Athlete Name and Likeness Litig., 37 F. Supp. 3d 1126 (N.D. Cal. 2014). But the only value of that case here was to say in dicta that there might be such a right in Minnesota, a conclusion thrown into doubt by subsequent developments in Dryer finding no such right under the laws of Minnesota, New York, New Jersey, California, or Texas law.
So, onto the language of the TPRPA:
Any person who knowingly uses or infringes upon the use of another individual’s name, photograph, or likeness in any medium, in any manner directed to any person other than such individual, as an item of commerce for purposes of advertising products, merchandise, goods, or services . . . without such individual's prior consent, or, in the case of a minor, the prior consent of such minor's parent or legal guardian . . . shall be liable to a civil action.
“Likeness” is defined as “the use of an image of an individual for commercial purposes.”  Further, the law says that “[i]t is deemed a fair use and no violation of an individual’s rights shall be found, for purposes of this part, if the use of a name, photograph, or likeness is in connection with any news, public affairs, or sports broadcast or account.” “Thus, the TPRPA clearly confers no right of publicity in sports broadcast, or with respect to any advertisement if the advertisement is in connection with such a broadcast.”
Plaintiffs argued that the sports broadcast provision didn’t immunize defendants because they used plaintiffs’ images to advertise unrelated products, but they didn’t plead any specific facts supporting that claim. Plaintiffs relied on Zacchini v. Scripps-Howard Broad. Co., 433, U.S. 562 (1977), and Wisconsin Interscholastic Athl. Ass’n v. Gannett Co., Inc., 658 F.3d 614 (7th Cir. 2011), to support their right of publicity claims. They argued that there was a key distinction between reporting about sports events and broadcasting entire events.  There was no doubt that those cases drew that distinction, but “stating that the First Amendment does not guarantee unlimited broadcast rights does not mean that it correspondingly establishes a right to publicity by the athletic participants when entire games are broadcast.” 
Also, Zacchini was both a performer and the producer of his one-man show, so protecting his act was consistent with incentive theory. “It is a mistake, the Court believes, to read Zacchini as supporting a right of publicity by anyone who performs in an event produced by someone else.” Likewise, Wisconsin Interscholastic involved a high school athletic association’s challenge to the streaming of a tournament game by news organizations, and the Seventh Circuit affirmed the association’s right to enter into exclusive contracts for broadcasting entire games, noting that “tournament games are a performance product of [the association] which it has a right to control.” Plaintiffs were the players, but the networks were the producers and the games were their products.
Finally, plaintiffs argued that the sports broadcast exception, interpreted this way, had a disparate impact on them, as African-American students.  While this is a very interesting argument and consistent with critiques of various other IP rules, such as copyright’s idea/expression distinction, its treatment of musical style, and its authorship rules, the court dismissed it for failure to allege, among other things, any racially discriminatory purpose. Nor was there any alleged impact on a fundamental right, since “[t]he ability to profit from a right of publicity simply does [not] rise to the level of a fundamental right,” unlike the right to privacy.
The Lanham Act false endorsement claims failed too. First, “[t]he Lanham Act is constitutional because it only regulates commercial speech, which is entitled to reduced protections under the First Amendment.” And broadcasting sports events doesn’t propose a commercial transaction. 
Second, plaintiffs failed to adequately allege likelihood of confusion. “They merely allege that they played in games that were shown on television, and that advertisements appeared in the broadcast of the games.”  At the hearing, plaintiffs’ counsel played a video clip from a tournament basketball game that showed a player preparing to shoot a free-throw, while an advertisement for an upcoming TV program appeared on the bottom of screen.  (I wonder if this required circumvention to create!)  “[I]t is simply implausible to conclude that the shooter or those along the key were in any way endorsing the upcoming program, any more than Tennessee Titans players, their opponents, or spectators endorse Louisiana-Pacific building products (or, indeed, any of the host of other products displayed on the scoreboard) when games are played at LP field, even though such advertisements may be captured in the background during the game.”  All the broadcasts showed was players playing their sport.

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