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Copyright Act Preempts Players' Publicity Rights for NFL Films

By Judith L. Grubner

Twenty-three professional football players brought a class action lawsuit against the National Football League (NFL), claiming that films produced by NFL Films violated their state rights of publicity and constituted false endorsement under '43(a) of the Lanham Act. Twenty of those players settled with the NFL for a fund for the benefit of all former professional players and use of a licensing agency to assist the players in exploiting their publicity rights ' benefits reported to be worth $42 million. However, the other three players (John Dryer, Elvin Bethea, and Edward White) opted out of the settlement and elected to pursue their suit. The U.S. District Court for the District of Minnesota granted summary judgment to the NFL on both claims. The U.S. Court of Appeals for the Eighth Circuit affirmed on the basis that the players' rights of publicity were preempted by the Copyright Act and that the films were neither commercial speech nor likely to cause consumers to believe that the players were affiliated with or endorsed the NFL. Dryer v. The National Football League, __ F.3d __ (8th Cir. 2016).

Since 1965, NFL Films has produced hundreds of theme-based compilations of NFL game footage and interviews with players, coaches, and other individuals, with some of the compilations winning awards. The NFL sells the films to individual consumers, broadcasts them on its television network and website, and licenses the right to display them to distributors such as Warner Home Video, Hulu, and ESPN. Dryer, Bethea, and White appeared in featured game footage and gave interviews for use in the films.

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