memo in support of motion for summary judgment filed by nfl in dryer vs nfl films
TRANSCRIPT
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
______________________________________
John Frederick Dryer,Elvin Lamont Bethea, and,
Edward Alvin White,
Plaintiffs,
v.
National Football League,
Defendant.
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No. 0:09-cv-02182-PAM-AJB
NATIONAL FOOTBALL LEAGUES MEMORANDUM OF LAW
IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
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Table of Contents
Page
INTRODUCTION ............................................................................................................... 1
FACTUAL AND PROCEDURAL BACKGROUND ........................................................ 3
I.
The History Of NFL Films ....................................................................................... 3
II.
Plaintiffs ................................................................................................................... 4
III.
The Challenged Programs ........................................................................................ 5
IV. Plaintiffs Participation In Creating The Challenged Programs ............................... 6
V.
The History Of The Litigation .................................................................................. 8
SUMMARY JUDGMENT STANDARD.. ................................. 8
ARGUMENT.. 9
I.
The Challenged Programs Are Protected By Safe Harbors To The
Applicable State And Federal Laws And By The First Amendment. ...................... 9
A.
The challenged programs are protected by safe harbors in the
governing states laws for speech addressing sports and other
newsworthy topics. ........................................................................................ 9
1.
Programs showing Dryer California and New York law .................. 10
Programs showing Bethea Texas law. ............................................... 14
2.
Programs showing White California and Minnesota law. ................. 163.
B.
The challenged programs are fully protected by the First
Amendment, barring Plaintiffs right-of-publicity claims. ......................... 18
The challenged programs cover events of great public interest1.
and are thus entitled to full First Amendment protection. .................... 19
The challenged programs do not materially implicate any of the2.
interests protected by right-of-publicity laws. ...................................... 24
The challenged programs are not commercial speech. ......................... 26
3.
The expressive content of the challenged programs is4.
inextricably intertwined with any brand-enhancing elements. ............. 32
C.
The Lanham Act does not apply to the challenged programs becausethey are expressive works............................................................................ 35
II.
Plaintiffs Claims Are Barred By The Doctrines Of Laches, Acquiescence,
And Consent Because Of Their Decades-Long Delay In Bringing Suit And
Active Participation In Creating The Challenged Programs. ................................. 37
A.
Laches and acquiescence bar all of Plaintiffs Lanham Act claims. ........... 37
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Plaintiffs inexcusably delayed in asserting their rights and1.
bringing suit. ......................................................................................... 39
The NFL was unduly prejudiced by Plaintiffs delay. ......................... 41
2.
Plaintiffs actively acquiesced in the NFLs use of game footage. ....... 43
3.
B.
Several equitable doctrines bar Plaintiffs right-of-publicity claims
under state law. ............................................................................................ 45
Implied consent and laches bar Dryers and Whites claims1.
under California law. ............................................................................ 45
Implied consent, laches, and quasi-estoppel bar Betheas claims2.
under Texas law. ................................................................................... 46
Implied consent, laches, and estoppel bar Whites claims under3.
Minnesota law. ...................................................................................... 47
Laches, the limitations period, and the incidental-use doctrine4.
bar Dryers claims under New York law. ............................................. 48
III.
Plaintiffs State-Law Claims Are Preempted By The Federal Copyright Act. ...... 50
IV.
Plaintiffs Unjust Enrichment Claims Fall With Their Publicity-Rights
Claims. .................................................................................................................... 55
V. In The Alternative, Plaintiffs State-Law Claims Are Preempted By The
LMRA. .................................................................................................................... 55
CONCLUSION.59
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Table of Authorities
Page(s)
FEDERAL CASES
3M Co. v. Intertape Polymer Grp., Inc.,423 F. Supp. 2d 958 (D. Minn. 2006) ..........................................................................48
A.C. Aukerman Co. v. R.L. Chaides Constr. Co.,
960 F.2d 1020 (Fed. Cir. 1992) ....................................................................................42
Ahn v. Midway Mfg. Co.,
965 F. Supp. 1134 (N.D. Ill. 1997) ...............................................................................54
Am. Needle Inc. v. NFL,
538 F.3d 736 (7th Cir. 2008) ........................................................................................12
Anheuser-Busch, Inc. v. Balducci Publns,
28 F.3d 769 (8th Cir. 1994) ..........................................................................................35
Ann-Margret v. High Socy Magazine, Inc.,
498 F. Supp. 401 (S.D.N.Y. 1980) ...............................................................................14
Arctic Cat, Inc. v. Injection Res. Specialists, Inc.,
362 F. Supp. 2d 1113 (D. Minn. 2005) ........................................................................41
Armstrong v. Eagle Rock Entmt, Inc.,
655 F. Supp. 2d 779 (E.D. Mich. 2009) .......................................................................54
Baltimore Orioles, Inc. v. Major League Baseball Players Assn,
805 F.2d 663 (7th Cir. 1986) ..................................................................................52,54
Bd. of Trs. of State Univ. of N.Y. v. Fox,
492 U.S. 469 (1989) ...............................................................................................26,33
Bloemer v. Nw. Airlines, Inc.,
401 F.3d 935 (8th Cir. 2005) ........................................................................................58
Bolger v. Youngs Drug Prods. Corp.,463 U.S. 60 (1983) .................................................................................................27,30
Brady v. NFL,
779 F. Supp. 2d 992 (D. Minn. 2011) ..........................................................................12
Brown v. Ames,
201 F.3d 654 (5th Cir. 2000) ............................................................................15, 36,37
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Brown v. Cassens Transp. Co.,
743 F. Supp. 2d 651 (E.D. Mich. 2010) .......................................................................55
Brown v. Elec. Arts, Inc.,
724 F.3d 1235 (9th Cir. 2013) ....................................................................20, 35, 36,37
Brown v. NFL,
219 F. Supp. 2d 372 (S.D.N.Y. 2002) ..........................................................................59
Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 (2010) .....................................................................................................53
C.B.C. Dist. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P.,
505 F.3d 818 (8th Cir. 2007) ......................................................................18, 20, 24, 56
Cardtoons, L.C. v. Major League Baseball Players Assn,
95 F.3d 959 (10th Cir. 1996) .................................................................................passim
CBS Interactive Inc. v. Natl Football League Players Assn, Inc.,
259 F.R.D. 398 (D. Minn. 2009) ............................................................................19,20
Celotex Corp. v. Catrett,
477 U.S. 317 (1986) .......................................................................................................8
Cepeda v. Swift & Co.,
415 F.2d 1205 (8th Cir. 1969) ......................................................................................58
Charles v. City of L.A.,697 F.3d 1146 (9th Cir. 2012) ......................................................................................33
Cheatham v. Paisano Publns, Inc.,
891 F. Supp. 381 (W.D. Ky. 1995) ...............................................................................55
Citizens & Landowners Against Miles City/New Underwood Powerline v. Secy,
U.S. Dept. of Energy,
683 F.2d 1171 (8th Cir. 1982) ......................................................................................40
City of Cincinnati v. Discovery Network, Inc.,
507 U.S. 410 (1993) .....................................................................................................26
Cliffs Notes, Inc. v. Bantam Doubleday Dell Publg Grp., Inc.,
886 F.2d 490 (2d Cir. 1989) .........................................................................................35
Conan Properties, Inc. v. Conans Pizza, Inc.,
752 F.2d 145 (5th Cir. 1985) ........................................................................................44
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Connick v. Myers,
461 U.S. 138 (1983) ...................................................................................18, 19, 21,22
Dex Media W., Inc. v. City of Seattle,
696 F.3d 952 (9th Cir. 2012) ........................................................................................33
Downing v. Abercrombie & Fitch,
265 F.3d 994 (9th Cir. 2001) ........................................................................................45
Dryer v. NFL,
689 F. Supp. 2d 1113 (D. Minn. 2010) .................................................................passim
Duncan v. Universal Music Grp. Inc.,
No. 11-CV-5654, 2012 WL 1965398 (E.D.N.Y. May 31, 2012) .................................49
Dwinell-Wright Co. v. White House Milk Co.,
132 F.2d 822 (2d Cir. 1943) .........................................................................................44
ETW Corp. v. Jireh Publg,Inc.,
332 F.3d 915 (6th Cir. 2003) .................................................................................passim
Facenda v. N.F.L. Films, Inc.,
542 F.3d 1007 (3d Cir. 2008) .......................................................................................30
Farkas v. GMAC Mortg., LLC,
737 F.3d 338 (5th Cir. 2013) ........................................................................................47
Glovaroma, Inc. v. Maljack Prods., Inc.,No. 96-cv-3985, 1998 WL 102742 (N.D. Ill. Feb. 26, 1998) ......................................54
Goodman v. McDonnell Douglas Corp.,
606 F.2d 800 (8th Cir. 1979) ........................................................................................41
Gore v. TWA,
210 F.3d 944 (8th Cir. 2000) ........................................................................................56
Grp. Health Plan, Inc. v. Philip Morris Inc.,
188 F. Supp. 2d 1122 (D. Minn. 2002) ..........................................................................8
Heidi Ott A.G. v. Target Corp.,
153 F. Supp. 2d 1055 (D. Minn. 2001) ........................................................................52
Hoepker v. Kruger,
200 F. Supp. 2d 340 (S.D.N.Y. 2002) ..........................................................................13
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Hoffman v. Capital Cities/ABC, Inc.,
255 F.3d 1180 (9th Cir. 2001) ......................................................................................34
Holmes v. NFL,
939 F. Supp. 517 (N.D. Tex. 1996) ..............................................................................59
Hot Wax, Inc. v. Turtle Wax, Inc.,
191 F.3d 813 (7th Cir. 1999) ............................................................................38, 41,42
Hubbard Feeds, Inc. v. Animal Feed Supp., Inc.,
182 F.3d 598 (8th Cir. 1999) ............................................................................38, 40,41
In re NCAA Student-Athlete Name & Likeness Licensing Litig.,
724 F.3d 1268 (9th Cir. 2013) ................................................................................10,12
Jarrow Formulas, Inc. v. Nutrition Now, Inc.,
304 F.3d 829 (9th Cir. 2002) ........................................................................................46
Jones v. Corbis Corp.,
815 F. Supp. 2d 1108 (C.D. Cal. 2011) .................................................................45,46
Jones v. Corbis Corp.,
489 F. Appx 155 (9th Cir. 2012) ............................. 45
Jordan v. Jewel Food Stores, Inc.,
743 F.3d 509 (7th Cir. 2014) ..................................................................................33,34
Joseph Burstyn, Inc. v. Wilson,343 U.S. 495 (1952) ...............................................................................................21,31
Jules Jordan Video, Inc. v. 144942 Can., Inc.,
617 F.3d 1146 (9th Cir. 2010) ................................................................................53,54
Lakewood v. Plain Dealer Publg Co.,
486 U.S. 750 (1988) .....................................................................................................31
Laws v. Sony Music Entmt,
448 F.3d 1134 (9th Cir. 2006) ................................................................................52,54
Lingle v. Norge Div. of Magic Chef, Inc.,
486 U.S. 399 (1988) .....................................................................................................56
Lutheran Assoc. of Missionaries and Pilots, Inc. v. Lutheran Assoc. of
Missionaries and Pilots, Inc.,
No. 03-cv-6173, 2004 WL 2730104 (D. Minn. Nov. 19, 2004) ..................................38
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Masters v. UHS of Del., Inc.,
631 F.3d 464 (8th Cir. 2011) ..................................................................................38,43
Matthews v. Wozencraft,
15 F.3d 432 (5th Cir. 1994) ..........................................................................................15
Meadows v. Hartford Life Ins. Co.,
492 F.3d 634 (5th Cir. 2007) ........................................................................................47
Miller v. Glenn Miller Prods., Inc.,
454 F.3d 975 (9th Cir. 2006) ......................................................................38, 39, 41,46
Minn. Mining & Mfg. Co. v. Beautone Specialties, Co., Ltd.,
82 F. Supp. 2d 997 (D. Minn. 2000) ............................................................................41
Murray Hill Publns, Inc. v. ABC Commcns, Inc.,
264 F.3d 622 (6th Cir. 2001) ........................................................................................53
NAACP v. NAACP Legal Def. & Educ. Fund., Inc.,
753 F.2d 131 (D.C. Cir. 1985)......................................................................................41
Natl Basketball Assn v. Motorola,
105 F.3d 841 (2d Cir. 1997) .........................................................................................52
Natl Car Rental Sys. Inc. v. Computer Assocs. Intl. Inc.,
991 F.2d 426 (8th Cir. 1993) ..................................................................................51,53
New Kids on the Block v. News Am. Publg, Inc.,971 F.2d 302 (9th Cir. 1992) ........................................................................................11
N.Y. Times v. Sullivan,
376 U.S. 254 (1964) .....................................................................................................27
Newton v. Thomason,
22 F.3d 1455 (9th Cir. 1994) ..................................................................................45,46
NFLPA v. NFL,
654 F. Supp. 2d 960 (D. Minn. 2009) (Magnuson, J.) .................................................58
Petrella v. Metro-Goldwyn-Mayer, Inc.,
134 S. Ct. 1962 (2014) .................................................................................................38
Porous Media Corp. v. Pall Corp.,
173 F.3d 1109 (8th Cir. 1999) ....................................................................27, 29, 30,31
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Preston v. Martin Bregman Prods., Inc.,
765 F. Supp. 116 (S.D.N.Y. 1991)..........................................................................25,49
ProFitness Physical Therapy Ctr. v. Pro-Fit Orthopedic & Sports Physical
Therapy P.C.,
314 F.3d 62 (2d Cir. 2002) .....................................................................................38,44
Ray v. ESPN, Inc.,
No. 13-cv-1179, 2014 WL 2766187 (W.D. Mo. April 8, 2014).......................51, 53,54
Reynolds v. Heartland Transp.,
849 F.2d 1074 (8th Cir. 1988) ......................................................................................41
Riley v. Natl Fedn of the Blind of N.C.,
487 U.S. 781 (1988) ...............................................................................................33,34
Rogers v. Grimaldi,875 F.2d 994 (2d Cir. 1989) ...................................................................................35,36
Romantics v. Activision Publg, Inc.,
574 F. Supp. 2d 758 (E.D. Mich. 2008) .......................................................................54
Sherwin v. Indianapolis Colts, Inc.,
752 F. Supp. 1172 (N.D.N.Y. 1990) .............................................................................59
Smith v. Houston Oilers,Inc.,
87 F.3d 717 (5th Cir. 1996) ..........................................................................................59
Snyder v. Phelps,
131 S. Ct. 1207 (2011) .................................................................................................19
Somerson v. World Wrestling Entmt,Inc.,
956 F. Supp. 2d 1345 (N.D. Ga. 2012) ..................................................................51,54
Stringer v. NFL,
474 F. Supp. 2d 894 (S.D. Ohio 2007) .........................................................................59
Tellado v. Time-Life Books, Inc.,
643 F. Supp. 904 (D.N.J. 1986) ...................................................................................17
Trs. of Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc.,
450 F.3d 324 (8th Cir. 2006) ........................................................................................56
U.S. Olympic Comm. v. Am. Media, Inc.,
156 F. Supp. 2d 1200 (D. Colo. 2001) .........................................................................31
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Univ. of Ala. Bd. of Trs. v. New Life Art, Inc.,
683 F.3d 1266 (11th Cir. 2012) ....................................................................................35
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748 (1976) .....................................................................................................31
Ventura v. Titan Sports, Inc.,
65 F.3d 725 (8th Cir. 1995) ..............................................................................54, 55,58
Vilma v. Goodell,
917 F. Supp. 2d 591 (E.D. La. 2013) ...........................................................................59
Wagner v. Gallup, Inc.,
989 F. Supp. 2d 782 (D. Minn. 2013) ..........................................................................16
Whitehurst v. Showtime Networks, Inc.,
No. 1:08-CV-47, 2009 WL 3052663 (E.D. Tex. Sept. 22, 2009) ................................15
Williams v. NFL,
582 F.3d 863 (8th Cir. 2009) ..................................................................................56,58
Zacchini v. Scripps-Howard Broad.,
433 U.S. 562 (1977) ...............................................................................................18,21
STATE CASES
Aronovitch v. Levy,
56 N.W.2d 570 (Minn. 1953) .......................................................................................48
Burdette Tomlin Meml Hosp. v. Estate of Malone,
845 A.2d 615 (N.J. Super. Ct. App. Div. 2003) ...........................................................50
Castro v. NYT Television,
851 A.2d 88 (N.J. Super. Ct. App. Div. 2004) .............................................................17
City of Oakland v. Oakland Police & Fire Ret. Sys.,
169 Cal. Rptr. 3d 51 (Cal. Ct. App. 2014) ...................................................................46
Costanza v. Seinfeld,719 N.Y.S.2d 29 (N.Y. App. Div. 2001) .......................................................................49
Danforth v. Star Tribune Holdings Corp.,
No. A10-128, 2010 WL 4286242 (Minn. Ct. App. Nov. 2, 2010) ...............................16
Delan ex rel. Delan v. CBS, Inc.,
458 N.Y.S.2d 608 (N.Y. App. Div. 1983) .....................................................................50
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Dora v. Frontline Video, Inc.,
18 Cal. Rptr. 2d 790 (Cal. Ct. App. 1993) .............................................................11,12
Ecumenical Task Force of Niagara Frontier, Inc. v. Love Canal Area Revitalization
Agency,
583 N.Y.S.2d 859 (N.Y. App. Div. 1992) .....................................................................50
Finger v. Omni Publns Intl, Ltd.,
566 N.E.2d 141 (N.Y. 1990) ........................................................................................14
Finnie v. Town of Tiburon,
244 Cal. Rptr. 581 (Cal. Ct. App. 1988) ......................................................................46
Fleet v. CBS, Inc.,
58 Cal. Rptr. 2d 645 (Cal. Ct. App. 1996) ...................................................................54
Garcia v. Garza,311 S.W.3d 28 (Tex. App. 2010) ..................................................................................47
Gautier v. Pro-Football, Inc.,
107 N.E.2d 485 (N.Y. 1952) ..................................................................................14,15
Gionfriddo v. Major League Baseball,
114 Cal. Rptr. 2d 307 (Cal. Ct. App. 2001) ...........................................................passim
Greenstein v. Greif Co.,
No. B200962, 2009 WL 117368 (Cal. Ct. App. Jan. 20, 2009) .............................45,46
Heuer v. Heuer,
704 A.2d 913 (N.J. 1998) .............................................................................................50
Howell v. N.Y. Post Co., Inc.,
612 N.E.2d 699 (N.Y. 1993) ........................................................................................13
Kimbrough v. Coca-Cola/USA,
521 S.W.2d 719 (Tex. Civ. App. 1975) ........................................................................15
Lake v. Wal-Mart Stores, Inc.,
582 N.W.2d 231 (Minn. 1998) .........................................................................16, 17,48
Lopez v. Munoz, Hockema & Reed, L.L.P.,
22 S.W.3d 857 (Tex. 2000) ..........................................................................................47
Messenger ex rel. Messenger v. Gruner
727 N.E.2d 549 (N.Y. 2000) ................................................................................. 13, 14
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Montana v. San Jose Mercury News, Inc.,
40 Cal. Rptr. 2d 639 (Cal. Ct. App. 1995) ...................................................................11
Nussenzweig v. diCorcia,
832 N.Y.S.2d 510 (N.Y. App. Div. 2007) .....................................................................49
Pesina v. Juarez,
181 N.W.2d 109 (Minn. 1970) .....................................................................................48
Pinkus v. Minneapolis Linen Mills,
67 N.W. 643 (Minn. 1896) ...........................................................................................48
Saratoga Cnty. Chamber of Commerce, Inc. v. Pataki,
798 N.E.2d 1047 (N.Y. 2003) ......................................................................................50
Sporn v. MCA Records, Inc.,
448 N.E.2d 1324 (N.Y. 1983) ......................................................................................49
Stephano v. News Grp. Publns, Inc.,
474 N.E.2d 580 (N.Y. 1984) ........................................................................................13
Stewart v. Rolling Stone LLC,
105 Cal. Rptr. 3d 98 (Cal. Ct. App. 2010) ...................................................................10
FEDERAL STATUTES
15 U.S.C. 1069 ...............................................................................................................38
15 U.S.C. 1125(a) ...........................................................................................................35
17 U.S.C. 102 .................................................................................................................52
17 U.S.C. 106 ...........................................................................................................51,53
17 U.S.C. 301(a) .............................................................................................................51
29 U.S.C. 185 ................................................................................................................. 56
STATE STATUTES
Cal. Civ. Code 3344 ............................................................................................10,12,56
N.Y. C.P.L.R. 215(3) .......................................................................................................49
N.Y. Civ. Rights Law 51 ...............................................................................13, 14, 49,50
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RULES
Fed. R. Civ. P. 56(c) .............................................................................................................8
CONSTITUTIONAL PROVISIONS
First Amendment ........................................................................................................passim
OTHER AUTHORITIES
2 J. Thomas McCarthy, The Rights of Publicity & Privacy(2014 ed.) .......................38,56
J. Thomas McCarthy,McCarthy on Trademarks & Unfair Competition
(4th ed. 2009) ...............................................................................................................43
Restatement (Second) of Torts ..............................................................................17,47,48
Restatement (Third) of Unfair Competition ......................................................................16
Vincent A. Palladino,Lanham Act False Advertising Claims: What is a Plaintiff to
Do?, 101 Trademark Rep. 1601 (2011) .......................................................................22
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Even if the relevant state laws did not protect the challenged programs, the First
Amendment would. In every case involving similar speech about sporting events, courts
have concluded that First Amendment interests outweighed any interests protected by
state publicity-right laws. The factual record shows that the same is true here. The
challenged programs use of NFL Films game footage showing Plaintiffs playing football
poses no threat to Plaintiffs ability to use their identities for commercial gain. To the
contrary, when Plaintiffs can be identified at all, they agree that the programs enhance
their ability to benefit from their identities. On the other side of the balance, the
programs are fully protected by the First Amendment as speech about a topic that is of
such great public interest that it commands coverage in every medium that covers sports,
whether newspapers, radio, television, or online. Plaintiffs state-law claims must
therefore give way to the protections afforded by the First Amendment.
Second, Plaintiffs decades-long delay in bringing suit and their active
participation in making the challenged programs bar their claims under the doctrines of
laches, acquiescence, and consent. Despite knowing that NFL Films programs contained
game footage in which they appeared, Plaintiffs never objected for more than 20 years
after they retired. To the contrary, they led the NFL to believe that they agreed it could
use game footage of them in NFL Films programs. In reliance on Plaintiffs conduct, the
NFL continued making programs, continued including Plaintiffs in those programs, and
continued relying on its player contracts as adequate statements of the parties rights.
Plaintiffs course of conduct, and the prejudice it caused the NFL, bar all of their claims.
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Third, the Copyright Act preempts Plaintiffs state-law claims. In discovery,
Plaintiffs admitted that their claims are based entirely on the NFLs uses of game footage
for its original purpose as sports programming, not in separate ads. In addition, two
recent federal decisions have dismissed identical right-of-publicity claims brought by
other professional athletes against the use of footage of their performances on the
grounds of copyright preemption. These two developments, one factual and one legal,
warrant granting summary judgment for the NFL.
Finally, in the alternative, Plaintiffs claims are preempted by Section 301 of the
Labor Management Relations Act (LMRA). If the Court does not grant summary
judgment for the NFL on any of the above grounds, it has recognized that each former
players contract must be examined to determine whether [publicity] rights are covered
by the terms of the contract as well as the extent and duration of such coverage. (Order,
Dkt. 431, at 14.) Because the player contracts were negotiated in Collective Bargaining
Agreements, only a labor arbitrator may interpret them. If the Court reaches that stage of
the analysis, it should dismiss Plaintiffs claims as preempted by LMRA.
FACTUAL AND PROCEDURAL BACKGROUND
I.
The History Of NFL Films
Since 1965, NFL Films has sent film crews to chronicle NFL football games and
the teams and players who play them. (Connolly Decl., Ex. U.1) NFL Films uses the
resulting footage to document the history of the National Football League. (Katz Dep.
(Ex. E) 38:1-4.) As explained by the Chief Operating Officer of NFL Films, Howard
1All exhibit citations refer to the exhibits attached to the Connolly Declaration.
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Katz, We are filmmakers at NFL Films. We go out and figure out whats the best story
we can tell. (Id.40:25-41:7.)
NFL Films altered forever the way sports is presented on film, with innovations
that virtually everyone in the sports and television business have been trying to copy
since. David Lidsky, This Is NFL Films, Fortune, Sept. 16, 2002 (Ex. V). For its work,
NFL Films has won more than 110 Emmys for Cinematography, Writing, Editing, Sound
and Sports Series, and Specials. (See, e.g., Exs. X, Y.)
II.
Plaintiffs
Each Plaintiff is a former NFL football player who retired more than 20 years ago.
John Frederick Fred Dryer played defensive end, wearing number 89, for the
New York Giants from 1969 to 1971 and for the Los Angeles Rams from 1972 to 1981.
(Second Am. Compl., Mar. 18, 2013, 6, Dkt. 258 (SAC).) Dryer has resided in
California since 1972. (See, e.g., SAC 6.)
Elvin Lamont Bethea played defensive end, wearing number 65, for the Houston
Oilers from 1968 to 1983. (SAC 9; Bethea Dep. (Ex. G) 14:24-15:7.) Bethea has
resided in Texas since 1972. (Bethea Dep. (Ex. G) 13:17-22.)
Edward Alvin Ed White played offensive guard for the Minnesota Vikings from
1969 to 1977, wearing number 62. He then played for the San Diego Chargers from 1978
to 1985, wearing number 67. (SAC 11.) White has resided in California since at least
1999. (White Dep. (Ex. H) 13:11-15.)
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III.
The Challenged Programs
In this case, Plaintiffs challenge as a violation of their publicity rights every
program that was shown, licensed, or sold by the NFL within one or more of the relevant
limitations periods in which one of them is shown playing football (the challenged
programs). Dryer appears in 47 such programs, Bethea in 32, and White in 91. In most
cases, Plaintiffs appear so incidentally that it is difficult to identify them. Lists of the
challenged programs indicating where Plaintiffs appeared and for how long are attached
as Exhibits AC.
Relatively few of the programs were distributed widely. Most were sold only to
individual consumers on DVDs. (See Ex. D, at App. 1; Ex. DD.) For example, a DVD
of Game of the Week 1973 Week #16: Vikings v. Cowboys, in which White briefly
appears, was purchased twice within the longest limitations period. (Ex. DD, at 2, 22.) A
smaller subset of programs was licensed as part of bundles to third-party distributors like
Warner Home Video and Hulu. (See Ex. D, at App. 2.) Finally, 35 programs were
shown on NFL Network and clips from 17 programs were posted on NFL.com. (Ex. D,
at App. 1.) Charts showing the challenged programs uses are attached as Exhibit D.
All of the challenged programs recount historic sporting events and use game
footage of Plaintiffs only to show them playing football. The programs can be roughly
divided into five categories. The first category is Historical Documentaries. This
category includes the Americas Game series, which tells the stories of Super Bowl
teamsprimarily the winning teams, but sometimes the other team, such as in Missing
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Before they filed this suit, Plaintiffs let more than 20 years pass after their
retirements without ever objecting to appearing in NFL Films programs. Instead, they led
NFL Films to believe that they consented to appearing in the challenged programs. Dryer
repeatedly sat, without objection, for interviews for programs that he knew would use
game footage of him and is shown on videotape watching and enjoying the completed
programs with NFL Films personnel decades after the programs were made. (See Dryer
Dep. (Ex. F) 92:21-93:5, 164:14-23, 173:8-174:1; Ex. A, No. 47, at 00:39:5400:41:04.)
Bethea likewise gave interviews to NFL Films, without objection, in 1994, 1997,
and 2007. (Bethea Dep. (Ex. G) 80:15-83:6, 83:24-87:4, 88:7-92:7, 112:1-16, 116:11-
117:4, 118:24-119:2.) His 1997 interview was incorporated into the film Pro Football
Hall of Fame: 85 Years of Greatness, (Ex. B, No. 31, at 00:11:0000:11:43), a copy of
which he received, (Bethea Dep. (Ex. G) 110:22-111:20, 113:1-4, 116:11-117:4).
White, from the time he retired in 1985 until the summer of 2009 when he was
approached by counsel to join the lawsuit, believed the NFL was entitled to show game
footage in which he appeared and never objected to it. (White Dep. (Ex. H) 129:12-
130:15, 137:16-138:10.) After his house tragically burned down in November 2003,
destroying all his papers, documents, and films, (id.31:22-32:6), White contacted NFL
Films to ask for copies of the programs in which he appeared. (Id.183:2-15, 184:22-
185:1.) The NFL sent him free copies of 25 to 30 films, which White still has. (Id.
183:5-15, 191:16-192:13, 193:4-11.) On March 24, 2009, five months before this lawsuit
was filed, White gave a new interview to NFL Films, (id.262:19-264:11), explaining that
he agreed to participate because I just enjoy football, being a part of it andand
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everything about it, (id.265:2-5). White never objected to the use of game footage
showing him when he gave this interview. (Id.274:1-275:10.)
V. The History Of The Litigation
This lawsuit began as a class action filed in August 2009 by, among others, the
three Plaintiffs who remain: Dryer, Bethea, and White. (See Dkt. 1.) In January 2010,
the Court denied the NFLs motion for judgment on the pleadings, giving Plaintiffs the
benefit of every reasonable inference. Dryer v. NFL, 689 F. Supp. 2d 1113, 1120-21 (D.
Minn. 2010). The Court also encourage[d] the parties to investigate a reasonable
settlement. Id.at 1123. The parties did just that, and the Court granted final approval of
a class settlement on November 1, 2013. (SeeDkt. 431.) Dryer, Bethea, and White opted
out of the settlement class to pursue their claims individually.
The factual record has been fully developed since January 2010 through extensive
merits discovery by both sides. The NFL has produced over 100,000 documents, and the
parties have taken 17 fact depositions and 9 expert depositions. The case is now ready for
the Courts decision based on a comprehensive factual record.
SUMMARY JUDGMENT STANDARD
Summary judgment should be granted when there are no disputed issues of
material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Grp. Health Plan, Inc. v. Philip
Morris Inc., 188 F. Supp. 2d 1122, 1125 (D. Minn. 2002).
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Programs showing Dryer California and New York law
1.
Dryer played in California (Rams) and New York (Giants), and he currently
resides in California. Thus, either California and New York law, or California law alone,
will govern his claims.
California law.a.
California recognizes both a statutory and a common law right of publicity. The
common law requires a plaintiff to prove four elements: (1) the defendants use of the
plaintiffs identity; (2) the appropriation of plaintiffs name or likeness to defendants
advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.
Stewart v. Rolling Stone LLC, 105 Cal. Rptr. 3d 98, 111 (Cal. Ct. App. 2010) (quotation
omitted). The statute requires two additional elements: a knowing use by the defendant
as well as a direct connection between the alleged use and the commercial purpose. Id.
at 111.
In two ways, California protects reporting of factual information under state
law. In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268,
1282 (9th Cir. 2013). First, the statute contains a safe harbor for uses in connection with
any news, public affairs, or sports broadcast or account, or any political campaign. Cal.
Civ. Code 3344(d). Second, the common law claim does not extend to the publication
of matters in the public interest. In re NCAA, 724 F.3d at 1282.
Although the protections under California law are animated by First Amendment
concerns, they are not coextensive with the Federal Constitution, and their application is
thus a matter of state law. Id.(internal citation omitted). California law provides extra
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which they appeared. 114 Cal. Rptr. 2d at 313-19. The court found that [t]he public has
an enduring fascination in the records set by former players and in memorable moments
from previous games, and hence that video footage from historic games commands a
substantial public interest. Id. at 315. This Court distinguished Gionfriddoat the
pleadings stage as it related to First Amendment law, but as to California state-law issues,
Gionfriddo,Montana, andDora are controlling.2
The NFL Films programs that Dryer challenges fall directly within the scope of
Californias state-law protections. Just as Gionfriddo,Montana, andDorafound with
regard to the sporting events they covered, the NFL football games covered by the
challenged programs involve matters of public interest under the California common
law and public affairs under 3344and that is putting it mildly, given the pervasive
media attention the games attract. See generally Brady v. NFL, 779 F. Supp. 2d 992,
1042 (D. Minn. 2011) (noting the strong investment that fans of professional football
have in the NFL season);Am. Needle Inc. v. NFL, 538 F.3d 736, 737 (7th Cir. 2008)
(noting that [a]s the most successful and popular professional sports league in American
today the NFL has inspired countless hours of heated and in-depth discussion about
the leagues professional-football history), revd on other grounds, 560 U.S. 183
(2012). To pick two examples from the challenged programs, the 23-minute-long
2The Ninth Circuits decision inIn re NCAA reaffirmed the application ofMontana,
Dora, and Gionfriddoto accounts of historic sporting events, but distinguished them in
the context of depictions of a college football player in a video game, reasoning that the
video game is not a means for obtaining information about real-world football games.
724 F.3d at 1283. The challenged uses of game footage, in contrast, all show real-world
football games and are thus controlled byMontana,Dora, and Gionfriddo.
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To succeed on a Texas right-of-publicity claim, a plaintiff must prove that:
(1) the defendant misappropriated the plaintiffs name or likeness for the value
associated with it and not in an incidental manner or for a newsworthy purpose; (2) the
plaintiff can be identified from the publication; and (3) the defendant derived some
advantage or benefit. Brown v. Ames, 201 F.3d 654, 658 (5th Cir. 2000) (citing
Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994)).
Texas law, like New Yorks, distinguishes between the use of a personality for
purposes of trade, on the one hand, and dissemination of news or information on the
other hand. Kimbrough v. Coca-Cola/USA,521 S.W.2d 719, 721 (Tex. Civ. App. 1975)
(quoting Gautier, 107 N.E.2d at 488); see also Matthews, 15 F.3d at 439 (a Texas right-
of-publicity claim cannot be based on newsworthy events); Whitehurst v. Showtime
Networks, Inc., No. 1:08-CV-47, 2009 WL 3052663, at *6 (E.D. Tex. Sept. 22, 2009)
(dismissing claim against a film depicting an event that was highly publicized in the
news media as a newsworthy event open to public observation).
All of the challenged programs involving Bethea are protected against right-of-
publicity claims in Texas because they all tell stories about the history of the Houston
Oilers, a topic of wide and legitimate public interest. Gautier,107 N.E.2d at 489. Of
the 32 programs in which footage of Bethea appeared during the limitations period, 16
are season highlight films that profile the growth and success of the Oilers franchise, (see,
e.g., Ex. B, No. 17,1978 Houston Oilers Season Highlight; Ex. B, No. 25, 1979
Houston Oilers Season Highlight Love Ya Blue), 11 are Game of the Week
productions that recap a specific NFL game, 2 are Americas Game programs telling
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the story of the Pittsburgh Steelers Super Bowl championship teams, (Ex. B, Nos. 28,
30), 2 describe the history of the Pro Football Hall of Fame, (Ex. B, Nos. 27, 31, Pro
Football Hall of Fame: 85 Years of Greatness), and 1 recounts the history of the
franchise and its eventual move to Tennessee, (Ex. B, No. 29, NFL Films Presents
Remember the Oilers). All of these stories are newsworthy within the meaning of
Texas law. The Court should therefore grant summary judgment to the NFL against all
of Betheas state-law claims.
Programs showing White California and Minnesota law.3.
White played in Minnesota (Vikings) and California (San Diego Chargers) and
lives in California. Thus, either California and Minnesota law, or California law alone,
will govern his claims.
Minnesotas tort of appropriation is committed when one appropriates to his
own use or benefit the name or likeness of another. Wagner v. Gallup, Inc., 989 F.
Supp. 2d 782, 791 (D. Minn. 2013) (quotingLake v. Wal-Mart Stores, Inc., 582 N.W.2d
231, 233-36 (Minn. 1998)). Minnesota has yet to address how to deal with matters in the
public interest under its nascent right-of-publicity doctrine, butDanforth v. Star Tribune
Holdings Corp., No. A10-128, 2010 WL 4286242, at *4-5 (Minn. Ct. App. Nov. 2,
2010), holds that reporting on matters of public interest is protected against privacy-
related claims. That proposition is summarized in the Restatement (Third) of Unfair
Competition (Restatement),which explains that right-of-publicity claims are limited to
uses for purposes of trade and do not ordinarily include using a persons identity in news
reporting, commentary, entertainment, works of fiction or non-fiction or in advertising
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B.
The challenged programs are fully protected by the First Amendment,
barring Plaintiffs right-of-publicity claims.
The First Amendment provides another independent ground for granting summary
judgment to the NFL. At the pleadings stage, the Court held that competing, reasonable
inferences arising from Plaintiffs allegations precluded it from dismissing their claims
under the First Amendment. Dryer, 689 F. Supp. 2d at 1121. But now, there is a
complete factual record regarding the challenged programs and the issue is ripe for
decision because the ultimate question of First Amendment protection is a question of
law for the Court to decide. Id. at 1119 (citing Connick v. Myers, 461 U.S. 138, 147-48
(1983)).
When a plaintiff asserts a state-law claim against expressive materials, courts must
balanc[e] the state law rights of publicity against first amendment considerations.
C.B.C. Dist. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d
818, 823 (8th Cir. 2007) (citingZacchini v. Scripps-Howard Broad., 433 U.S. 562
(1977).) In every previous case involving speech about professional sports, courts have
concluded that the economic interests served by state publicity-right laws were
outweighed by the interests in distributing newsworthy speech protected by the First
states mentioned above, exempts uses that relate to the dissemination of news and
information. Tellado v. Time-Life Books, Inc., 643 F. Supp. 904, 909-10 (D.N.J. 1986).To be actionable, a use must be mainly for purposes of trade, without a redeeming
public interest, news, or historical value. Id. at 910. [I]t is irrelevant to this inquiry
whether the use concerns a story about important public events or a subject that provides
only entertainment and amusementboth are equally protected. Castro v. NYT
Television, 851 A.2d 88, 97 (N.J. Super. Ct. App. Div. 2004). The NFLs uses fall within
these protections for the same reasons that they fall within similar safe harbors under
California, Texas, Minnesota, and New York law.
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coverage on TV, in newspapers, and elsewhere. In C.B.C., the Eighth Circuit noted that
sports command a substantial public interest, stating [t]he public has an enduring
fascination in the records set by former players and in memorable moments from
previous games. 505 F.3d at 823 (quoting Gionfriddo, 114 Cal. Rptr. 2d at 315). The
court therefore held that a commercial fantasy baseball website was entitled to full First
Amendment protection. Id.; see also CBS Interactive, 259 F.R.D. at 417-19 (applying
C.B.C. to claim brought against NFL fantasy football website).
The Tenth Circuit, in adecision addressing unauthorized parody baseball cards,
recognized that professional athletes are public figures and held that commentary on
an important social institution such as Major League Baseball constitutes protected
expression. Cardtoons, 95 F.3d at 969.
The Sixth Circuit, in a decision addressing an unauthorized painting of Tiger
Woods at the Masters, found that sports and entertainment celebrities have come to
symbolize certain ideas and values in our society and have become a valuable means of
expression in our culture. ETW, 332 F.3d at 937-38. The court therefore held that the
painting was expression which is entitled to the full protection of the First Amendment.
Id. at 937.
The Ninth Circuit, in a decision addressing the alleged unauthorized appearance of
Jim Brown, one of the NFLs all-time greatest players, in theMadden NFL video
game, found that the video game was an expressive work that was entitled to the same
First Amendment protection as great literature, plays, or books. Brown v. Elec. Arts,
Inc., 724 F.3d 1235, 1243-44, 1248 (9th Cir. 2013).
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To help apply these tests, the Eighth Circuit has identified three factors:
(1) whether the speech is an advertisement, (2) whether it refers to a specific product, and
(3) whether the speaker has an economic motivation. See Porous Media Corp. v. Pall
Corp., 173 F.3d 1109, 1121 (8th Cir. 1999); see also Bolger v. Youngs Drug Prods.
Corp., 463 U.S. 60, 66-67 (1983). Applied to the factual record that has been developed,
the Porous Mediafactors only reinforce the conclusion that the challenged programs are
expressive speech. As this Court previously held, only when speech combines all three
factors is there strong support for the conclusion that the speech is commercial. Id. at
1116 (quotingBolger, 463 U.S. at 66). Here, the challenged programs do not combine all
three factors and are not commercial speech. 4
The challenged programs are not advertisements.a.
First, the factual record shows that the challenged programs are not
advertisements within the meaning of Porous Media. In Porous Media, the Eighth
Circuit defined an ad as speech that propose[s] a commercial transaction. 173 F.3d at
1120. The contents of the challenged programs do not meet that definition. InNew York
Times v. Sullivan, 376 U.S. 254 (1964), whichBolger cited as the source for its
advertisement factor, see463 U.S. at 66, the Supreme Court defined ads by reference to a
case involving a commercial handbill offering paid admission to a submarine. See 376
U.S. at 265-66. The contents of the challenged programs do not meet that definition,
either. The programs do not offer anything for sale, and the NFL does not pay to
4Because the challenged programs do not meet the Supreme Courts definition of
commercial speech, the NFL believes that it is unnecessary to apply the Porous Media
factors. But as demonstrated above, the factors produce the same result.
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118:10-19, 184:4-187:1.) Frederick Fried, a sports marketing executive and former agent
for professional athletes in connection with the licensing of their publicity rights, stated
that NFL Films programs are not recognized as a form of advertisement or endorsement
and that professional athletes therefore neither expect to receive, nor do receive,
additional compensation post-retirement for their appearance in game footage in NFL
Films-like programs. (Fried Rep. (Ex. T) at 9-10, 16-20, 26-33; see also OMalley
Dep. (Ex. I) 103:13-17, 114:6-17, 116:1-17, 177:14-18, 202:18-22.)
Even Plaintiffs experts conceded these points. Although Mr. Fallon, Plaintiffs
advertising expert, contended in his report that the challenged programs are a type of
advertising, he revised his opinions at his deposition, admitting that the public does not
perceive NFL Films programs as advertising and conceding that, were he to suggest
otherwise outside of the context of this lawsuit, he would be told to go see a therapist.
(Fallon Dep. (Ex. J) 321:5-24.) As noted above, all three of Plaintiffs experts conceded
that the challenged programs are sports and entertainment programs. (Seeid.71:12-14,
385:3-17; Anson Dep. (Ex. L) 117:18-20; Kamins Dep. (Ex. K) 281:12-14, 284:15-17.)
The challenged programs do not meet the first Porous Media factor; they are not
ads.
The challenged programs do not refer to a specificb.
product that viewers can buy.
The challenged programs also do not meet the second Porous Media factor
because they do not refe[r] to a specific product apart from the speech that makes up
the programs themselves. Porous Media, 173 F.3d at 1120. Speech that is distributed for
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its own inherent contentthat is, speech that is itself the productis fully protected.
See, e.g.,Cardtoons, 95 F.3d at 970 (finding parody baseball cards fully protected
because they do not promote an unrelated product). Porous MediaandBolgerinstruct
courts to look for references to a specific product other than the speech that the viewer
can buy. In those cases, there was such a product, whether a filter, a contraceptive
device, or paid admission to a submarine. But here, the challenged programs do not refer
to any specific product for sale, whether game jerseys, game tickets, televised showings
of upcoming games, or video games. As the Court has previously recognized, the
challenged programs are thus not like the Making of Madden program at issue in
Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1017 (3d Cir. 2008), which focused on the
Madden NFL 06video game and feature[d] a clock at its ending that displayed the
number of days until the video games release for sale. See Dryer, 689 F. Supp. 2d at
1120 (commenting that [t]he films at issue here are not pure infomercials, as was the
film at issue in Facenda).
The programs that Plaintiffs challenge are themselves the product: they are
entertainment content addressing NFL football games.5 Plaintiffs previous argument
that NFL Football is the specific productis entirely wrong. A sport in the generic
sense is not a product that someone can buy, and treating speech about sports as
commercial on the theory that it necessarily mentions a product is not only inconsistent
with all the cases cited above, but would convert virtually all books, newspapers and
5This is what the NFL meant to convey in its briefing on its motion for judgment on the
pleadings: The NFL Videos do not use Plaintiffs identities to advertise a separate
product. They [the videos] are the product . See Dryer, 689 F. Supp. 2dat 1120 n.3.
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Under any of the tests that this Court or the Supreme Court has used to define or
identify commercial speech, the challenged programs are expressive rather than
commercial and thus entitled to full First Amendment protection.
The expressive content of the challenged programs is4.
inextricably intertwined with any brand-enhancing elements.
Plaintiffs have never disputed that the challenged programs contain at least some
elements of expressive speech. (See, e.g., SAC 37.) Instead, their expert argues that
they also function like advertisements because they have the effect of enhancing the
NFLs brand. (SeeFallon Dep. (Ex. J) 201:25-202:8, 229:4-230:12.) No court has ever
used this brand enhancement argument to turn expressive content into commercial
speechand the argument cannot be correct, or else every successful play and movie
would lose First Amendment protection because of its positive effect on its producers
brand. Every successful Disney film, for example, would lose First Amendment
protection because it bolsters Disneys reputation. (Keller Dep. (Ex. M) 53:12-54:7,
104:11-105:4.) Indeed, Plaintiffs licensing expert Anson admitted that his approach
would require that result. (Anson Dep. (Ex. L) 123:14-125:20.) Ansons incorrect
opinion about the First Amendment status of Disney movies shows that his opinion is
equally incorrect about the challenged NFL Films programs.
Even if the challenged programs did contain some element of commercial speech,
however, they would nonetheless retain their full First Amendment protection because
any commercial element is inextricably intertwined with the expressive speech. The
inextricably intertwined doctrine holds that any commercial aspect of speech does not
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C.
The Lanham Act does not apply to the challenged programs because
they are expressive works.
Just as courts have done with state laws, they have interpreted the Lanham Act, 15
U.S.C. 1125(a), to provide a safe harbor to expressive speech. To sustain a Lanham
Act false-endorsement claim, Plaintiffs must demonstrate that the challenged programs
made explicit misrepresentations that Plaintiffs endorsed them. Although Plaintiffs
alleged that the programs falsely represent Plaintiffs endorsement of the NFL and its
goods or services, (see SAC 89, 94, 95), the undisputed factual record now shows
that they do not. The NFL is therefore entitled to summary judgment.
The leading case establishing the Lanham Act standard isRogers v. Grimaldi, 875
F.2d 994, 999 (2d Cir. 1989). Rogersheld that when a plaintiff challenges expressive
works, he must show either (1) that his name or likeness has no artistic relevance to the
underlying work whatsoever, or, (2) if it has some artistic relevance, that the underlying
work explicitly misrepresents his sponsorship of it. Id. at 1000. Several circuits have
expressly adopted theRogerstest. See ETW, 332 F.3d at 924; Univ. of Ala. Bd. of Trs. v.
New Life Art, Inc., 683 F.3d 1266, 1278 (11th Cir. 2012);Brown, 724 F.3d at 1241-42.
The Eighth Circuit has not yet expressly adopted theRogers test, but there is no
reason to believe that it will decline to do so and thereby create a circuit split, especially
because it has appliedRogers progeny in related contexts. See Anheuser-Busch, Inc. v.
Balducci Publns, 28 F.3d 769, 776 (8th Cir. 1994) (repeatedly quoting and applying
Cliffs Notes, Inc. v. Bantam Doubleday Dell Publg Grp., Inc., 886 F.2d 490, 494 (2d Cir.
1989)). The Court should therefore applyRogersto Plaintiffs claims.
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argument that the use of his image in the game communicated an endorsement. Instead,
it reiterated that there must be an express misrepresentation such as, Jim Brown
approves of Madden NFL. See id.; see also ETW, 332 F.3d at 936-37 (holding that
explicit statement that Woods authorized the artwork would be required). Even if Brown
had submitted survey evidence demonstrating that consumers believedthat his
appearance in the videogame communicated an endorsement, the court held that that
would not be enoughan express falsehood is required. 724 F.3dat 1246 (citingETW,
332 F.3d at 937). Here, the challenged programs do not associate Plaintiffs with a new
product, as inBrown, much less make any express representation that Plaintiffs endorse
the programs. They use footage only to accurately show games in which Plaintiffs
played. On these undisputed facts, Plaintiffs have no claim for false endorsement under
the Lanham Act.
II.
Plaintiffs Claims Are Barred By The Doctrines Of Laches, Acquiescence,
And Consent Because Of Their Decades-Long Delay In Bringing Suit AndActive Participation In Creating The Challenged Programs.
Plaintiffs knowledge of their appearances in NFL Films programs, their over two-
decade delay in bringing suit, their failure to object to the NFLs use of its copyrighted
game footage at any time before they sued, and their active participation in creating the
programs they now challenge bar their claims under state and federal law.
A.
Laches and acquiescence bar all of Plaintiffs Lanham Act claims.
First, the doctrines of laches and acquiescence bar all of Plaintiffs claims under
the Lanham Act.
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2011), but where, as here, they are undisputed, the defenses can be applied as a matter of
law, seeMiller,454 F.3d at 980-81.
Plaintiffs inexcusably delayed in asserting their rights and1.
bringing suit.
The undisputed facts establish the first element of laches and acquiescence by
showing that Plaintiffs inexcusably delayed for years, even decades, in asserting their
rights and bringing suit.
Dryer retired from the NFL in 1981. (Dryer Dep. (Ex. F) 39:6-9.) During his
playing career, he knew that NFL Films personnel were recording footage at every
game, (seeid.100:17-21), and, by 1986 at the latest, he knew that the NFL was using
clips of this game footage in new NFL Films programs, (id.89:19-25, 92:21-93:5).
Rather than objecting, he regularly sat for NFL Films interviews after he retired, even
though he knew that NFL Films would intersperse his interview with game footage in
which he appeared. (See, e.g., id.92:24-93:5.) [T]he very first word Dryer said to the
NFL about those uses was this lawsuit in August 2009. (Id.52:22-53:5; see also id. 41:2-
10; 149:3-7; 161:25-162:4.)
Bethea retired from the NFL in 1983. (Bethea Dep. (Ex. G) 14:24-15:7.) During
his playing career, he saw NFL Films personnel on the sidelines and knew that NFL
Films [took] the game films and distribute[d] them. (Id.24:17-25:4.) Although his
memory was vague about the exact date, it is undisputed that he learned earl[y] in his
retirement that NFL Films used footage in which he appeared. (Id.33:16-21, 36:6-14.)
Between 1994 and 2007, Bethea sat for three NFL Films interviews. (Id.80:15-92:7;
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was infringing his rights until he began watching the newly-established NFL
Network).) Throughout this entire period, the NFL had no reason to change its practices
because, as each of the three Plaintiffs concedes, he never raised the issue with the NFL
before 2009, (id.52:22-53:5; Bethea Dep. (Ex. G) 74:16-22; White Dep. (Ex. H) 130:11-
15), and sports agent Fred Fried testified, without contradiction, that professional athletes
do not expect compensation for such uses, (Fried Dep. (Ex. O) 70:4-13, 109:18-110:20,
126:14-21, 231:20-25). Had Plaintiffs successfully pressed [their] claims in a timely
manner, the NFL could have avoided the substantial economic prejudice it now faces.
Hot Wax, 191 F.3d at 824.
Second, the NFL has also suffered substantial evidentiary prejudice due to the
loss of records, the death of a witness, [and] the unreliability of memories of long past
events. A.C. Aukerman Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1033 (Fed. Cir.
1992). One example is the untimely passing, in 2012, of Steve Sabol, the co-founder and
creative force behind NFL Films. Sabol, who spent decades at NFL Films, directly
interacted with Plaintiffs and other retired NFL players, including multiple conversations
with Dryer that go directly to the issue of consent. (See, e.g., Dryer Dep. (Ex. F) 175:10-
176-25, 177:13-24; 183:13-185:12; 190:21-191:8.) Another example is the house fire
that White suffered in 2003, when he lost potentially valuable evidence, including
correspondence and copies of NFL Films programs. (White Dep. (Ex. H) 31:22-32:6;
184:22-185:1.) Had Plaintiffs brought their claims when they arose, the NFL would have
been able to present a more effective and efficient defenseand Plaintiffs should not be
allowed to benefit from their delay.
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that you are using my name, everyone who Ive talked to about it thinks its exciting and
so do I. Id. at 1458. Although plaintiff never uttered the words I consent, the court
concluded that it is obvious that he did consent. Id. at 1461. In the same way, it is
obvious that Dryer and White consented to the use of game footage showing them in
challenged programs. See Jones, 815 F. Supp. 2d at 1114 (granting summary judgment
where plaintiff voluntarily posed for photographers, who she knew would display her
images to prospective buyers, for over 40 years without objection); Greenstein, 2009
WL 117368, at *10 (affirming dismissal based on implied consent where plaintiff knew
that his likeness was being captured on film and never objected).
Plaintiffs conduct also satisfies the California test for laches, which bars their
claims entirely. See Miller, 454 F.3d at 981, 997 (at summary judgment, nine-year delay
barred California right-of-publicity claim); see also Jarrow Formulas, Inc. v. Nutrition
Now, Inc., 304 F.3d 829, 842 (9th Cir. 2002) (at summary judgment, seven-year delay
barred California unfair competition and false advertising claims). In California, courts
consider a number of factors in applying laches, including delay, prejudice, and evidence
of the plaintiffs acquiescence in the challenged use. See City of Oakland v. Oakland
Police & Fire Ret. Sys., 169 Cal. Rptr. 3d 51, 83 (Cal. Ct. App. 2014); Finnie v. Town of
Tiburon, 244 Cal. Rptr. 581, 588 (Cal. Ct. App. 1988). For the same reasons that laches
bars Plaintiffs Lanham Act claims, it bars their claims under California law.
Implied consent, laches, and quasi-estoppel bar Betheas claims2.
under Texas law.
In Texas, the relevant doctrines are implied consent, laches, and quasi-estoppel.
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performances in sports programming. See Ray v. ESPN, Inc., No. 13-cv-1179, 2014 WL
2766187, at *2-5 (W.D. Mo. April 8, 2014); Somerson v. World Wrestling Entmt,Inc.,
956 F. Supp. 2d 1345, 1353-56 (N.D. Ga. 2012). Second, all three Plaintiffs have now
conceded that their claims are solely based on the NFLs uses of game footage for its
original purpose as sports programming, thus bringing the challenged uses within the
exclusive rights to perform, display, and prepare derivative works granted by the
Copyright Act. Plaintiffs state-law claims are therefore preempted.
There is no dispute that the NFL has a valid copyright in the video clips used in
the films. Dryer, 689 F. Supp. 2d at 1121. Because the NFL owns the copyrights, the
Copyright Act grants it the exclusive rights to reproduce, distribute, perform,
display, transmi[t], and prepare derivative works based on the game footage. 17
U.S.C. 106(1)-(6). The Copyright Act protects its grant of exclusive rights by
preempting state-law claims that attempt to limit those rights. See id. 301.8
In the Eighth Circuit, state-law claims are preempted if they meet a two-part test:
(1) they address a work within the subject matter of copyright; and (2) the state-law-
created right is equivalent to any of the exclusive rights set forth in 106. See Natl Car
Rental Sys. Inc. v. Computer Assocs. Intl. Inc., 991 F.2d 426, 428-31 (8th Cir. 1993);
Heidi Ott A.G. v. Target Corp., 153 F. Supp. 2d 1055, 1067 (D. Minn. 2001).
8Section 301 provides that all legal or equitable rights that are equivalent to any of the
exclusive rights within the general scope of copyright as specified by section 106 in
works of authorship that are fixed in a tangible medium of expression and come within
the subject matter of copyright are governed exclusively by this title. [N]o person is
entitled to any such right of equivalent right in any such work under the common law or
statutes of any State. 17 U.S.C. 301(a).
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Plaintiffs claims meet the two-prong test ofNational Car Rentaland thus are
preempted. First, although personas and athletic performances are not works within the
subject matter of copyright,Dryer, 689 F. Supp. 2d at 1121, recordingsof athletic
performances in a tangible medium such as video or film are such works, see, e.g.,17
U.S.C. 102 (listing motion pictures and other audiovisual works among the works for
which [c]opyright protection subsists);Natl Basketball Assn v. Motorola, 105 F.3d
841, 846-47 (2d Cir. 1997) (so holding for recordings of NBA games); Baltimore
Orioles, Inc. v. Major League Baseball Players Assn, 805 F.2d 663, 674-75 (7th Cir.
1986) (recordings of Major League Baseball games);Laws v. Sony Music Entmt, 448
F.3d 1134, 1144-45 (9th Cir. 2006) (recording of vocal performance).
At the pleadings stage, Plaintiffs alleged that the work at issue is not the
videos themselves, but rather Plaintiffs own identities. Dryer, 689 F. Supp. 2d at 1121.
But discovery has shown that this allegation was not correct. Instead, it is now
undisputed that Plaintiffs are not challenging any use of their identities other than in
recorded game footage, and it is further undisputed that the challenged programs use that
game footage only for its original purpose as sports programming. White, for example,
testified that his claim is that the NFL cant use its copyrighted game footage without
paying him. (See,e.g., White Dep. (Ex. H) 341:22-342:3, 342:18-25, 345:3-8.) Dryer
stated that the NFL can do what they want with their product as long as they pay
me. (Dryer Dep. (Ex. F) 147:14-17.) And Bethea testified that his claim was that any
NFL Films program that contains footage of him violates his right of publicity. (Bethea
Dep. (Ex. G) 103:16-20.) Plaintiffs claims thus meetNational Car Rentals first prong.
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Plaintiffs claims also meet the second prong of preemption because the state-law
rights they are assertingas applied to the facts of this caseare equivalent to several
of the exclusive rights granted by 106 of the Copyright Act. The relevant question in
assessing preemption is whether, upon the facts presented and the claims actually pled,
extra state-law elements make the claim qualitatively different from a copyright
infringement claim. Murray Hill Publns, Inc. v. ABC Commcns, Inc., 264 F.3d 622,
636 (6th Cir. 2001) (internal quotation omitted), abrogated on other grounds byReed
Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010); see also Natl Car Rental, 991 F.2d at
431 (applying the extra element test). When the entirety of the allegedly
misappropriated performance is contained within a copyrighted medium and is
displayed as a performance, the state-law claim is equivalent to copyright and preempted.
Jules Jordan Video, Inc. v. 144942 Can., Inc., 617 F.3d 1146, 1153 (9th Cir. 2010)
(citation omitted).
Plaintiffs claims are that state publicity laws preclude the NFL from using game
footage of their athletic performances even for its original purpose as an athletic
performance. (See,e.g., SAC 42, 49 (arguing that NFL violates their rights by
showing game footage on NFL Network); White Dep. (Ex. H) 341:22-342:3, 342:18-25,
345:3-8.) This is the same claim that the Western District of Missouri held preempted in
Ray. There, a professional wrestler sued ESPN under Missouri state publicity law for
replaying video footage of his wrestling performances without his consent. 2014 WL
2766187, at *1. The court held that Rays claim was preempted by the Copyright Act
because his wrestling performances were part of the copyrighted material, and his
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likenesses could not be detached from the copyrighted performances that were contained
in the films. Id., at *5.9 Because Ray complained simply about ESPN airing wrestling
performances that have been captured on video, his claim was subsumed by copyright
law and preempted.Id.(quotation marks omitted). The new Somerson decision holds
the same thing as to sales of DVDs of athletic performances, for the same reason. 956 F.
Supp. 2d at 1354. There is no distinguishingRayand Somersonhere.
Ray and Somersonare only the most recent of many decisions holding that
attempts to use state right-of-publicity laws to prevent a copyright owner from
performing, displaying, or distributing its copyrighted works are preempted by the
Copyright Act, regardless of whether the recorded performance involved sports,10
audio,11music videos,12adult films,13or other films.14 These holdings compel the
dismissal of Plaintiffs claims.
9In Ventura v. Titan Sports, Inc., 65 F.3d 725, 730 n.6 (8th Cir. 1995), another
professional wrestling case, the Eighth Circuit did not reach the issue of copyright
preemption because the defendant had not raised it, but noted that it was troubled by
the issue.10Baltimore Orioles, 805 F.2d at 674 (Major League Baseball);Ahn v. Midway Mfg. Co.,
965 F. Supp. 1134, 1138 (N.D. Ill. 1997) (martial arts).
11Laws, 448 F.3d at 1144-45 (song recording);Romantics v. Activision Publg, Inc., 574F. Supp. 2d 758, 766-67 (E.D. Mich. 2008) (song recording).12
Glovaroma, Inc. v. Maljack Prods., Inc., No. 96-cv-3985, 1998 WL 102742 , at *5-6
(N.D. Ill. Feb. 26, 1998);Armstrong v. Eagle Rock Entmt, Inc., 655 F. Supp. 2d 779,
788-90 (E.D. Mich. 2009).13Jules Jordan, 617 F.3d at 1152-53.14Fleet v. CBS, Inc., 58 Cal. Rptr. 2d 645, 650-51 (Cal. Ct. App. 1996).
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IV.
Plaintiffs Unjust Enrichment Claims Fall With Their Publicity-Rights
Claims.
Plaintiffs unjust enrichment claims are entirely derivative of their publicity-rights
claims and rest on exactly the same alleged unauthorized use of Plaintiffs identities.
(SAC 138.) All of the NFLs arguments in support of summary judgment against
Plaintiffs right-of-publicity claims apply equally to their claims for unjust enrichment,
and summary judgment should be entered for the NFL for the same reasons. Ventura v.
Titan Sports, Inc., 65 F.3d 725, 729-730 (8th Cir. 1995) (noting that plaintiffs unjust
enrichment claim may succeed only if defendant was not entitled to use the
performance without his consent); Cheatham v. Paisano Publns, Inc., 891 F. Supp. 381,
387 n.7 (W.D. Ky. 1995) (stating that, when coupled with a right-of-publicity claim,
unjust enrichment merely forms a measure of damages and is not a separate cause of
action).
V. In The Alternative, Plaintiffs State-Law Claims Are Preempted By The
LMRA.
If the Court grants summary judgment for the NFL on the preceding grounds, then
it will be unnecessary to address preemption under the LMRA. See, e.g.,Brown v.
Cassens Transp. Co., 743 F. Supp. 2d 651, 653-54 n.2 (E.D. Mich. 2010) (declining to
address the merits of [defendants] arguments regarding preemption under the LMRA
after dismiss[ing] Plaintiffs claims on other grounds), revd on other grounds, 675
F.3d 946 (6th Cir. 2012). But if the Court does not grant summary judgment on those
grounds, resolving Plaintiffs claims will require each former players contract [to] be
examined to determine whether [publicity] rights are covered by the terms of the contract
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requires a showing that [d]efendant, without permission, has used some aspect of
identity or persona .) (emphasis added).
Each Plaintiff signed standard player contracts consenting to the NFLs use of his
publicity rights. (SeeDryer Dep. (Ex. F) 21:10-27:5, 30:12-38:1; Ex. AA; Bethea Dep.
(Ex. G) 39:1-65:8; Ex. BB; White Dep. (Ex. H) 80:23-85:8, 87:15-88:2, 89:24-95:11,
96:23-97:25, 100:7-109:13; Ex. CC.) Before 1976, the first page of the standard player
contracts, paragraph 4, stated that the player agreed to comply with and be bound by:
the [NFL] Constitution and By-Laws, Rules and Regulations of the League. (See,
e.g., Ex. AA, at Dryer Dep. Ex. 6 4.) The then-current NFL Constitution and Bylaws
contained Section 10.7, captioned Broadcasting and Television, stated that each NFL
player:
grants to the club controlling his contract andto the League
severally and jointly, the privilege andauthority to use his
name and/or picture for publicity and/or advertising
purposes in m