MEMORANDUM AND ORDER
This mаtter is before the Court on Defendants’ Motion- to Dismiss. For the reasons that follow, the Motion is granted.
BACKGROUND
This case is very similar to the Dryer case currently pending before this Court, Dryer v. Nat’l Football League, 09cv2182 (D. Minn, filed Aug. 20, 2009). As in Dryer, Plaintiffs are former professional football players who seek to represent a class of similarly situated individuals. Here, they contend that Defendants are violating the antitrust laws by allegedly constraining the sale of their images and likenesses. Defendants are the National Football League (“NFL”), NFL Ventures, L.P., NFL Productions, LLC, NFL Enterprises, LLC, and each of the 32 NFL teams.
The allegations in Dryer are that the players have commоn-law and statutory rights of publicity in their own images. The Dryer plaintiffs want the NFL to pay for the use of video footage featuring their images in NFL Films’ promotional videos. Here, the fоrmer players contend that by not allowing them the rights to game films and images from the games in which they played, Defendants are monopolizing the market for former players’ likenesses, in violation of the Sherman Act, 15 U.S.C. § 1 et seq.
DISCUSSION
For purposes of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court takes all facts alleged in the complaint as true. See Westcott v. Omaha,
A. American Needle, Inc. v. NFL,
Plaintiffs rely heavily, almost exclusively, on this recent Supreme Court decision. Indeed, Plaintiffs go so far as to claim that the reason these antitrust allegations were not included in the Dryer matter is because the Supreme Court ruling in American Needle came out after the deadline to amend pleadings in Dryer, and that before American Needle Plaintiffs could not have pursued antitrust claims such as those here.
American Needle involved allеgations by a former licensee of NFL team merchandise that the NFL and its member teams conspired to illegally restrain trade by agreeing that NFL Properties could liсense all NFL-related merchandise, including individual team logos and so forth, to a single entity. The lower courts found that the NFL could not conspire with itself. Am. Needle, Inc. v. New Orleans La. Saints,
But other than the holding that the NFL and its teams might, in some instances, be capable of concerted action in violation of the Sherman Act, American Needle does not support Plaintiffs’ contentions here in the least. First, American Needle involved intellectual property that each team owned separately from the NFL: team logos, team colors, and the like. As the Court stated, NFL Properties’ “licensing decisiоns are made by the 32 potential competitors, and each of them actually owns its share of the jointly managed assets.”
Here, unlike in American Needle, the intellectual property involved is historical football game footage, something that the individuаl teams do not separately own, and never have separately owned. Rather, the NFL owns the game footage, either alone or in conjunction with the tеams involved in the game being filmed. These entities must cooperate to produce and sell these images; no one entity can do it alone. See id. at 2216 (noting that the NFL tеams “must cooperate in the production and scheduling of games, [which] provides a perfectly sensible justification for making a host of collective deсisions.”). Indeed, the Supreme Court recognized as much, stating that its decision was only that teams in the NFL could not be treated as a single entity under the Sherman Act “when it comes to the marketing of the teams’ individually owned intellectual property.” Id. at 2217. Thus, Plaintiffs’ assertion at the hearing that the Supreme Court has determined that the NFL and its teams cаn “act in concert for the purpose of marketing their collective intellectual property” (Tr. at 9) is fundamentally incorrect. The NFL and its teams can conspire to market each teams’ individually owned property, but not property the teams and the NFL can only collectively own. Thus, Plaintiffs have in the first .instance failed to establish any concerted action that is illegal under the Sherman Act.
B. Sherman Act
Even more basically, however, the Complaint does not state a claim for a violation of the Sherman Act. The Sherman Aсt provides in relevant part that “[e]very contract, combination ..., or conspiracy, in restraint of trade or commerce ... is declared to be illegal.” 15 U.S.C. § 1. Similarly, the Act makes it illegal to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any party of the trade or commerce among the several States____"Id. § 2. A violation of § 1 or § 2 is a felony punishable by a fine of up to $100 million and imprisonment up to 10 yеars. And, of course, a person bringing a civil antitrust action is eligible for treble damages.
Plaintiffs attempt to explain their claims by asserting that the relevant market is the market of “footage of NFL games and players” (Compl. ¶ 20), and the consumers in that market are the NFL and, perhaps, television networks. (Pis.’ Opp’n Mem. at 11, 17.) But Plaintiffs do not exрlain how the NFL can be both a consumer and a trade-restrainer at the same time. Moreover, the alleged “restraints” about which Plaintiffs complain arise beсause the NFL owns a copyright in the game footage. A copyright is nothing more than legal authorization to restrain trade in that intellectual property. See Chess Music, Inc. v. Sipe,
Plaintiffs also contend that, because the game footage involved here is owned collectively, the antitrust laws somehow prescribe how the collective can market and sell the intellectual property it owns. But this is precisely what the antitrust laws do not prohibit. And Plaintiffs’ assertion at the hearing that a copyright holder does not have the right to exclude the “right of someone else within the technology” to sell their own likeness that is contained in thаt technology (Tr. at 12) is nonsensical to say the least. If this statement were true, then an actor in a film could sell his or her image from the film for his or her own purposes; so, for example, Tom Cruise could sell the portions of the “Mission: Impossible” franchise that feature him and Paramount Pictures could not restrain him from doing so. The mere fact that the copyright in the “Mission: Impossible” franchise is owned by a single entity and the copyright in historical NFL game footage is owned collectively is simply irrelevant to the rights conferred by the copyright.
CONCLUSION
Plaintiffs have failed to plausibly allege any antitrust violation from Defendants’ conduct. Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Docket No. 13) is GRANTED and the Complaint is DISMISSED with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.