In Dryer v. The National Football League, three former gridiron gladiators who played in the NFL had their claims for right of publicity under state law tossed out by the Eighth Circuit Court of Appeals.  These three players (and twenty others who initially joined them) took on the NFL for its reproduction of “NFL Films” featuring game footage, commentary, and various interviews with these players.  Most of the plaintiffs settled their claims with the NFL, which established both a fund for the benefit of all former professional players and a licensing agency to assist those players in exploiting their publicity rights.  John Dryer, Elvin Bethea, and Edward Alvin opted to stay in the game and fight for victory, which proved to be elusive.

The Eighth Circuit held that the right of publicity claims were “preempted” by Section 301 of the Copyright Act.  According to the Court, a state law claim is preempted when two elements are met:  (1) the work at issue is “within the subject matter of copyright;” and (2) the state law creates a right that is “equivalent to any of the exclusive rights within the general scope of copyright as specified in § 106.”  The Court had no trouble finding that the offending films easily fell within the subject matter of copyright under the first element.  With respect to the second element, the Court held that the films were pure “expressive works” not “commercial speech.”  This distinction was important.  Because the NFL players were attempting to control the NFL’s use of their “expressive works,” the claims were intruding on the exclusive rights of the copyright holder under Section 106 of the Copyright Act.   Had the NFL been using the players’ images for purely “commercial purposes” (such as to hawk coffee mugs or t-shirts, for example) the result may well have been different.

So, why is the Court’s decision noteworthy?  For at least a couple of reasons.  First, the Court’s preemption holding is seemingly at odds with at least the 5th Circuit and the 7th Circuit–both of which came out the other way on the preemption issue and appear to use a different analytical framework.   Second, and perhaps more significantly, the Eight Circuit’s decision adds another layer to the already complicated tapestry involving the scope of right of publicity claims.  As was recently pointed out by a group of 31 law professors who have urged the U.S. Supreme Court to grant review of another case involving the right of publicity, there are multiple tests used by the lower courts in assessing how state right of publicity laws should be assessed, at least in the context of the First Amendment.  Perhaps it is time for the eight “replay officials” on the high court to step in for further review.