Eighth Circuit: Non-Commercial Copyright Use Preempts Right of Publicity

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February 1, 2016

right-of-publicityLast Friday, the U.S. Court of Appeals for the Eighth Circuit upheld a Minnesota federal district court’s grant of summary judgment in favor the National Football League (the “League” or “NFL”) regarding the rights of publicity of former NFL players with respect to certain League film projects.

How far-reaching are the implications of the Eighth Circuit’s ruling?

NFL Films

Since 1965, NFL Films (the League’s film production company) has produced hundreds of NFL-related television programs, feature films and documentaries. The League’s films include game footage and interviews with current and former NFL coaches and players. Game footage of former NFL players Fred Dryer (1969–81), Elvin Bethea (1968–83) and Ed White (1969–85) appears in dozens of NFL Films productions.

District Court: Right of Publicity Assertions Identical to Copyright?

In August 2009, 23 former professional football players filed a class action lawsuit against the League in the U.S. District Court for the District of Minnesota (Case No. 0:09-cv-02182-PAM-FLN) on behalf of all similarly-situated retired NFL players, whose names and likenesses appeared in NFL Films footage. Although the NFL and a majority of the former players reached a settlement agreement in November 2013, Dryer, Bethea and White opted out of the settlement and chose to proceed with individual claims against the League regarding the subject NFL Films productions.

In October 2014, the District Court granted the League’s motion for summary judgment against Dryer, Bethea and White. The trial court made a number of determinations, including:

  • that the Copyright Act preempted Plaintiffs’ right of publicity claims because the NFL held valid copyrights for the NFL Films productions, and the claims asserted rights identical to those protected by copyright law;
  • that the productions are expressive, non-commercial speech and, therefore, that the former players’ right of publicity claims must yield to the First Amendment;
  • that the productions fell under newsworthiness or public interest safe harbors included in the relevant state laws; and
  • that the former players’ implied consent to the creation and release of the productions, as well as the doctrine of laches, provided independent bases for its judgment in favor of the League.

Dryer, Bethea and White appealed the District Court’s ruling.

Eighth Circuit Affirms

On February 26, 2016, the Eighth Circuit (Case No. 14-3428) affirmed the trial court’s judgment regarding copyright’s preemptive powers over certain rights of publicity, holding that “[w]hen a right-of-publicity suit challenges the expressive, noncommercial use of a copyrighted work . . . , [s]uch a suit asserts rights equivalent to ‘exclusive rights within the general scope of copyright’ and is preempted by copyright law.”

Although the Court acknowledged that consumers pay to watch the NFL Films productions, it determined that the productions were non-commercial speech. “The Copyright Act therefore preempts the appellants’ attempt to control dissemination of the films and thereby exercise a right equivalent to ‘exclusive rights’ granted by copyright,” the Court found. The Circuit Court did not consider the District Court’s other bases for granting summary judgment in favor of the NFL.

Use of Name and Likeness Without Permission Is Still a Risky Endeavor

Copyright interests and rights of publicity have traditionally been interpreted as separate forms of intellectual property, serving completely separate purposes. While obtaining the prior express written consent of a person before exploiting his or her name or likeness undoubtedly remains the safest option available, the Eighth Circuit’s recent ruling could have serious implications for businesses operating at the intersection of copyright and rights of publicity. If you are interested in learning more about this topic, or if you have been served with legal process relating to the alleged use of another person’s name or likeness, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

(212) 246-0900

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