Former Players Can Pursue Publicity Rights Claims Against NFL

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Former professional football players’ right of publicity claims against the National Football League could not be dismissed on the theory that NFL promotional videos did not constitute commercial speech and were entitled to First Amendment protection as expressive works, the federal district court in St. Paul has ruled.

The NFL allegedly violated the right of publicity statutes and common law of the 50 states by using the players’ names and images in promotional videos such as the “History” series, which included videos called the “Fabulous Fifties” and “Sensational 60s.”

Commercial Speech v. Expressive Works

While the films were not pure infomercials, their overwhelmingly positive tone belied the NFL’s contention that they were documentaries and supported the player’s contention that they were advertisements, according to the court.

Giving the players the benefit of all reasonable inferences at the stage of a motion to dismiss, they made out a plausible claim that the films referenced a specific product, NFL football, and that the constitutional protection to be afforded the films did not outweigh the players’ interests in their own identities.

Copyright Preemption

The Copyright Act did not preempt the right of publicity claims. The subject of a right of publicity—the name and likeness of a celebrity or other individual—was not a “work” within the subject matter of copyright law, the court reasoned.

Lanham Act False Endorsement

On Lanham Act false endorsement claims, a determination could not be made on the pleadings alone that the NFL’s use in promotional videos of former professional football players’ names and images was not “explicitly misleading” or likely to cause confusion, the court held.

The opinion in Dryer v. National Football League will be reported at CCH Advertising Law Guide ¶63,807.