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NFL Players Waited Too Long to Challenge Non-Commercial Protected Videos

By Jonathan R. Tung, Esq. on March 01, 2016 12:02 PM

In yet another Lanham Act controversy, the Eighth Circuit affirmed summary judgment on multiple theories brought by disgruntled football players who claimed the NFL had violated their privacy and misled the public through their films.

In a pithily worded opinion, the court quickly detailed why the players' suit should fail.

NFL Films

The NFL produces films that track and document significant games, seasons, and players in NFL history. According to the court's opinion "[t]he films consist of compilations of game footage and interviews with players, coaches, and other individuals involved in the game. A bunch of the NFL players brought a class action on behalf of themselves and several other players who were similarly situated. The grand majority of the players settled out, except for three (The Three).

The Three had played with the NFL during the 60s, 70s and 80s; and all three appeared in footage used in the NFL films. They brought suit on theories that the NFL films violated their privacy and that further, the use of their images in the films violated the Lanham Act by misleading the public.

The Circuit Affirms

At the circuit level, the issues turned on two basic questions. One, were the films a form of commercial speech rather than expressive? Because if it was commercial, then the state's regulatory rules on the speech would most likely support the player's cause of action.

And then two, if the speech was commercial, did it have the tendency to mislead viewers into beleiving that the players, through the imagery, had endorsed the NFL?

The circuit court found that the answers to both questions was "no." The circuit concluded the videos were expressive speech and thus protected by both federal and state free speech laws. In making its decision, the Court noted that the films did not endorse a call to commercial action (i.e., to buy something), rather they were more documentary in nature. Although the NFL has its commercial side, the films, taken together, did not reference the league as a "specific product." Thus, the totality pointed to the films being a protected form of free non-commercial speech.

As for the Lanham Act claims, the plaintiffs generally failed to present any evidence that the films contained "misleading or false statements" implicitly included to create a false impression or to mislead consumers. In fact, the films were completely devoid of any claims by either the NFL or The Three that they were endorsing the NFL or any NFL products.

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