Do former NFL football players have the right to stop the NFL from distributing films that include their past performances? The Eighth Circuit says "no."
In Dryer v. National Football League, ---F.3d --- (8th Cir. February 26, 2016) the Eighth Circuit Court of Appeals considered whether former players could use state law claims of rights of publicity and Lanham Act claims of false endorsement to stop the distribution of filmed materials in which the NFL had a copyright.
With respect to the rights of publicity claims, the 8th Circuit concluded that the state law right of publicity claims were preempted by the Copyright Act. In my book Copyright Litigation Handbook (Thomson Reuters West 2015-2016) I devote a chapter to the concept of preemption because it is an important concept to understand. "Preemption" exists where Congress has regulated to the point of displacing contrary state law. "Complete preemption" is a rare subset of preemption, where Congress has regulated a subject matter so completely as to forbid state regulation even where Congress has chosen not to regulate. Copyright law is an area of law in which the complete preemption doctrine may apply to knock down inconsistent or additional state regulations that may burden authorial rights under the Copyright Act.
To determine whether a state law claim is preempted by the Copyright Act, the court asks two questions. First: is it a work within the subject matter of copyright? Second, whether the state law created right is equivalent to any of the exclusive rights granted by the Copyright Act?
In Dryer, the Eighth Circuit concluded that the films in question fell within the subject matter of copyright. Additionally, the court concluded that the works in question were expressive works and not commercial speech. Because the former football players were trying to control dissemination of the films, they were exercising powers equivalent to those granted to copyright owners under the Copyright Act and thus were preempted.
The court distinguished commercial speech such as advertising and pointed out that if the players images were being used for advertising purposes or to promote unrelated products (like the voice recording in Facenda v. NFL Films), a state law grant of rights of publicity might not be preempted.
The Eighth Circuit also tossed out the former NFL players' claims of false endorsement under Section 43(a) of the Lanham Act, 15 U.S.C. Section 1125 since the plaintiffs could not show any false or misleading statements regarding the players' current endorsement (or lack thereof) of the NFL.
To find the Dryer decision and a related decision discussing the class action settlement that Dryer opted out of, click here.
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Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
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