Friday, June 01, 2007

Use of Announcer's Voice Violated Right of Publicity, Lanham Act

This posting was written by Bill Zale, editor of CCH Advertising Law Guide.

The National Football League's unauthorized use of a renowned announcer's voice in a film promoting a computer game (Madden NFL 06) violated a Pennsylvania statute prohibiting unauthorized use of name or likeness and the Lanham Act, the federal district court in Pennsylvania has ruled.

A release signed by the late John Facenda, which granted the NFL the right to use his narration recorded in film sequences, was not a defense because it did not give the NFL the right to use Facenda’s tapes for product endorsement, the court determined.

The commercial value of Facenda’s voice was not disputed, the film was a commercial advertising vehicle, and the use of the announcer's recordings was outside the terms of his consent.

Recovery under the Pennsylvania statute was not precluded on the theory that the use was incidental. Although the use of the announcer's voice was brief, it added some commercial value to the film, according to the court.

Lanham Act Claim

Use of Facenda's voice was alleged to be a false designation of origin under the federal Lanham Act. Although evidence of actual confusion was lacking, a showing of actual confusion or deception was only one factor to be considered in Lanham Act celebrity endorsement cases, according to the court.

Evidence of actual confusion would have been particularly hard to obtain because of the evanescent nature of a program shown just a few times on television.

This weakness was outweighed by evidence regarding the announcer's high level of recognition among the NFL's target audience, the relatedness of his fame to Madden NFL 06, the identity of the likeness (use of actual voice recordings slightly altered to sound computerized), the NFL's intent to benefit from the association in viewers' minds between the announcer and authentic NFL football, and the fact that the film was shown only on the NFL cable television station—where the announcer was likely to be most recognizable.

Thus, Fascenda was entitled to recover under the Lanham Act, as well, the court held.

The decision is Facenda v. N.F.L. Films, Inc., Case No. 06-3128, May 3, 2007 (CCH Advertising Law Guide ¶62,549).

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