John Frederick Dryer v. National Football League
814 F.3d 938
| 8th Cir. | 2016Background
- Appellants Dryer, Bethea, and White are former NFL players who appear in NFL Films’ archival game footage and also gave post-retirement interviews (which they do not challenge on appeal).
- They opted out of a class settlement between other former players and the NFL and sued individually claiming (1) violations of state right-of-publicity laws and (2) false endorsement under the Lanham Act based on NFL Films’ use of game footage featuring them.
- The district court granted summary judgment for the NFL on the publicity claims, reasoning that the Copyright Act preempted those claims (work is copyrighted and state claims were equivalent to copyright rights) and that the films are expressive speech protected by the First Amendment; it also relied on state newsworthiness safe harbors, implied consent, and laches as alternative grounds.
- The district court also granted summary judgment on the Lanham Act claim, finding no misleading or false statements and holding that the Lanham Act protects against commercial speech, which these films are not.
- On appeal the Eighth Circuit affirmed, holding the Copyright Act preempted the right-of-publicity claims because the films are copyrighted expressive works and the state claims sought rights equivalent to copyright; it separately affirmed dismissal of the Lanham Act false-endorsement claim for lack of any objectively misleading or false representation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether state right-of-publicity claims are preempted by the Copyright Act | Right to control use of players’ identities in footage is separate from copyright; players’ performances are personal identity, not fixed copyrighted works | Films are fixed copyrighted works; publicity claims seeking to restrict dissemination are equivalent to copyright exclusive rights and thus preempted | Preempted: Copyright Act applies because films are within copyright subject matter and state claims seek rights equivalent to copyright |
| Whether the films are commercial speech (affecting preemption/First Amendment) | Films function as advertisements for “NFL-branded football” and are commercially motivated | Films are expressive historical/creative works sold/licensed like independent products; economic motive alone does not make them commercial advertising | Films are expressive, noncommercial speech under Porous Media test; not converted to commercial speech by NFL’s economic motive |
| Whether NFL Films violated Lanham Act § 43(a) (false endorsement) | Survey evidence shows viewers believed players currently endorse or are affiliated with the NFL; creates a genuine issue of consumer confusion | No literal false statement or contextual implication that players currently endorse NFL; footage shows past performance only and interviews (not challenged) contain players’ own views | Dismissed: plaintiffs offered no evidence of objectively misleading or false statements; misunderstanding by some viewers insufficient to create triable issue |
Key Cases Cited
- Nat’l Car Rental Sys., Inc. v. Comput. Assocs. Int’l, Inc., 991 F.2d 426 (8th Cir. 1993) (two-part test for Copyright Act preemption of state-law claims)
- Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (U.S. 1985) (copyright purpose: incentivize creation and provide marketable rights in expression)
- Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997) (live athletic events not copyrightable but fixed recordings are)
- Porous Media Corp. v. Pall Corp., 173 F.3d 1109 (8th Cir. 1999) (three-factor test to distinguish commercial vs. expressive speech)
- Facenda v. NFL Films, Inc., 542 F.3d 1007 (3d Cir. 2008) (distinguishing publicity claims about expressive uses from commercial-advertising uses)
- United Indus. Corp. v. Clorox Co., 140 F.3d 1175 (8th Cir. 1998) (Lanham Act actionable statements: literally false or misleading in context)
- Am. Italian Pasta Co. v. New World Pasta Co., 371 F.3d 387 (8th Cir. 2004) (consumer misunderstanding alone cannot defeat summary judgment absent objectively misleading statement)
- Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (U.S. 1952) (motion pictures are protected speech)