Judge Dismisses Publicity Rights Lawsuit by Former NFL Players

A federal judge in Minnesota nixed a lawsuit brought by three former NFL players Fred Dryer (LA Rams), Elvin Bethea (Houston Oilers), and Ed White (Minnesota Vikings) who claimed that the NFL violated their publicity rights in using video clips of them playing football.  The players had opted out of a $50 million settlement offered in a class action suit over publicity rights of athletes.

U.S. District Judge Paul Magnuson found the NFL Films’ productions that featured game footage of Ram, Oilers, and Vikings were not about Dryer, Bethea, and White exclusively although they were shown on field, mentioned by name, and interviewed.  Judge Magnuson continued that the films were noncommercial speech protected under the First Amendment even if it might have enhanced the NFL brand.  In balancing the NFL’s freedom of speech and the players’ publicity rights, the judge found the scale tipped in favor of the NFL’s interest.

Further, the decision stated that because the films were “reporting factual data” which is one of the specific exceptions to publicity rights, for example, under California law that was applicable in this case, the use was permissible.  Judge Magnuson wrote that “[t]he productions’ use of music, narration, and camera angles may [have] dramatize[d] those games, but the productions d[id] not convey information other than true information about ‘real-world football games.’”  He also reasoned that because the former players knew that the games were recorded for subsequent use and voluntarily gave interviews, they effectively authorized the use.  Judge Magnuson concluded that

“[t]he NFL’s valid copyright in the game footage foreclose[d] Plaintiffs’ publicity claims.”

While this decision is not binding on the O’Bannon case before the Ninth Circuit Court of Appeals, it certainly shades a favorable light on the case for the NCAA.

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