Tackling the Right of Publicity | Practical Law

Tackling the Right of Publicity | Practical Law

The US Court of Appeals for the Eighth Circuit recently affirmed the grant of summary judgment in favor of the National Football League in a right of publicity lawsuit filed by three former professional football players. This case highlights the need for counsel to understand the scope of state law rights of publicity and key defenses, including federal copyright law preemption. This Update includes links to Practical Law resources to assist counsel in advancing their client's right of publicity claims over the goal line.

Tackling the Right of Publicity

Practical Law Legal Update w-001-4854 (Approx. 3 pages)

Tackling the Right of Publicity

by Practical Law Intellectual Property & Technology
Published on 02 Mar 2016 • USA (National/Federal)
The US Court of Appeals for the Eighth Circuit recently affirmed the grant of summary judgment in favor of the National Football League in a right of publicity lawsuit filed by three former professional football players. This case highlights the need for counsel to understand the scope of state law rights of publicity and key defenses, including federal copyright law preemption. This Update includes links to Practical Law resources to assist counsel in advancing their client's right of publicity claims over the goal line.
In Dryer v. Nat'l Football League, the US Court of Appeals for the Eighth Circuit held that federal copyright law preempted the state law right of publicity claims of three former professional football players against the National Football League (NFL) ( (8th Cir. Feb. 26, 2016)).
The three players, John Dryer, Elvin Bethea, and Edward White, were the remaining plaintiffs in a class-action lawsuit initially brought by 23 former NFL players; 20 of the players opted to settle with the NFL. This week the US Supreme Court declined to review the settlement agreement, in which, among other things, the NFL agrees to establish a licensing agency to assist all former professional football players in exploiting their publicity rights.
In their suit against the NFL, the three players claimed that the NFL's use of their likenesses in films produced, broadcast, and distributed by the NFL violated their rights of publicity. The NFL films covered past football games as historical events and included footage from games in which the players participated. The players did not dispute that the NFL had permission to record their live performances in NFL games but claimed that the NFL's publication of the game footage in films violated their rights of publicity.
The US District Court for the District of Minnesota granted the NFL's motion for summary judgment on these and other claims, finding that the Copyright Act preempts the players' right of publicity claims based on the NFL game footage. The Eighth Circuit affirmed, applying a two-prong test under which federal copyright law will preempt a right of publicity claim where:
  • An individual's likeness, voice, or other protected aspect of his or her identity has been fixed in a work of authorship that is within the subject matter of copyright, for example, a film, television program, or sound recording.
  • The individual's right of publicity claim challenges the expressive, non-commercial publication, reproduction, or other use of a copyrighted work, which in essence amounts of a claim of copyright infringement.
The Eighth Circuit in Dryer found that:
  • The players' identities were fixed in the NFL's recordings of their live performances in football games, and the recordings were within the subject matter of copyright.
  • The players' right of publicity claims challenged only the NFL's use of their identities in the NFL game films, which the court found to be expressive and non-commercial use, and therefore were asserting rights equivalent to the exclusive rights granted by copyright.
This case highlights the need for counsel to understand the scope of state law rights of publicity as well as the principal exemptions and defenses to right of publicity claims. For an overview of right of publicity law in the US, including a discussion of federal copyright preemption and other defenses, see Practice Note, Right of Publicity: Overview.
Practical Law's Right of Publicity State Q&As are comprehensive guides to state right of publicity laws. Practitioners can use the surveys as a kickoff for research when counseling clients on or litigating state right of publicity claims. The terminology, legal elements of a claim, and scope of protection associated with the right can significantly vary in states recognizing the right.
Each State Q&A addresses:
  • The types of persons and aspects of identity protected by the right of publicity.
  • Remedies for violations of the right.
  • Defenses to right of publicity claims.
  • Personal jurisdiction and choice of law considerations.
  • Transfer and licensing of the right.
The Right of Publicity Laws: State Q&A Tool compares the information in Practical Law's Right of Publicity Laws State Q&A resources across multiple jurisdictions.
For an overview of the elements of a copyright infringement claim and related remedies and defenses, see Practice Note, Copyright Infringement Claims, Remedies and Defenses.