Dryer v. National Football League
2014 U.S. Dist. LEXIS 144362, 55 F.Supp.3d 1181, 2014 WL 5106738 (2014)
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Rule of Law:
The use of an athlete's likeness from copyrighted historical game footage in an expressive, documentary-style production is protected by the First Amendment and is not a violation of the right of publicity. Furthermore, the Copyright Act preempts state-law right of publicity claims that are based on the reproduction or distribution of a copyrighted performance fixed in a tangible medium.
Facts:
- John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White are former professional football players who played for various teams in the National Football League (NFL).
- NFL Films, a division of the NFL, creates theme-based programs that are dramatic narratives about football games, seasons, and players, using music, narration, and clips of game footage.
- The productions use footage from dedicated NFL Films cameras, not from the television cameras that broadcast the games live.
- Dryer, Bethea, and White appear in numerous NFL Films productions in video footage from games in which they played.
- The players' appearances in the game footage are often fleeting, incidental to the depiction of a play, and they are not always identified by name.
- After their retirement, all three players willingly participated in on-camera interviews with NFL Films, knowing the interviews would be incorporated into its productions.
Procedural Posture:
- Twenty-three former professional football players filed a putative class action lawsuit against the National Football League in the U.S. District Court for the District of Minnesota.
- The NFL filed a Motion for Judgment on the Pleadings, which the court denied.
- Most original plaintiffs settled with the NFL, but John Dryer, Elvin Bethea, and Edward White opted out of the settlement class to pursue their individual claims.
- The remaining plaintiffs filed a Second Amended Complaint alleging violations of the Lanham Act, various state-law rights of publicity, and unjust enrichment.
- After the close of discovery, Plaintiffs filed a Motion for Partial Summary Judgment, and the NFL filed a Motion for Summary Judgment on all of Plaintiffs' claims.
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Issue:
Does the National Football League's use of historical game footage of former players in its documentary-style films, without direct compensation to the players, violate the players' state-law rights of publicity or the federal Lanham Act?
Opinions:
Majority - Paul A. Magnuson
No, the NFL's use of historical game footage in its films does not violate the players' publicity rights or the Lanham Act. The court reasoned that the NFL Films productions are expressive, non-commercial works entitled to full First Amendment protection, which outweighs the players' state-law publicity rights. Applying the three-factor Porous Media test, the court determined the films are not commercial speech because they are not advertisements and do not promote a separate product; they are the product itself. The court also found that even if the First Amendment did not apply, the players' publicity claims would fail under state law due to the 'newsworthiness' defense, as professional football is a matter of significant public interest. Finally, the court held that the players' claims are preempted by the federal Copyright Act. Because the players' performances were 'fixed' in the NFL's copyrighted video recordings, any claim challenging the reproduction and distribution of those performances falls within the exclusive scope of copyright law.
Analysis:
This decision significantly strengthens the position of copyright holders against right-of-publicity claims brought by individuals whose performances are captured in the copyrighted work. It establishes that for expressive works like historical documentaries, the First Amendment provides a robust defense against such claims, particularly when the work is not deemed 'commercial speech.' The ruling's reliance on copyright preemption creates a high barrier for performers seeking to control the use of their likeness within copyrighted footage, effectively limiting the right of publicity to purely commercial or advertising contexts and not to expressive uses of the underlying copyrighted work.
