‘The Autumn Wind’ and the Right of Publicity

by Jackson Walker
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As a child of the 60’s and 70’s and an insatiable NFL football fan, I can still hear the swaggering voice of narrator John Facenda in the now-iconic 1974 NFL Films production “The Autumn Wind,” which has been dubbed The Battle Hymn of the Oakland Raiders Nation:

“The Autumn Wind is a raider,

Pillaging just for fun.

He’ll knock you ’round and upside down,

And laugh when he’s conquered and won.”

The principle stars of this and hundreds of other such NFL Films were the players themselves, running, passing and colliding in action-packed scenes expertly edited and accompanied by rousing narrations and musical scores.

Twenty-three of those players brought a class action against the NFL, claiming their “right of publicity” — which purports to protect against the uncompensated commercial exploitation of one’s likeness or identity by another – was violated by the licensing of these films to distributors such as Warner Home Video, Hulu and ESPN, and by featuring the films on the NFL’s television network and website.  The NFL entered into a class-wide settlement with all but three of the plaintiff players – John Dryer, Elvin Betha and Edward White – who opted out to pursue their claims individually.  Summary judgment on their claims was subsequently granted in the NFL’s favor, and those three players appealed.

In Dryer v. Nat’l Football League, No. 14-3428, 2016 WL 761178 (8th Cir. Feb. 26, 2016), the Eighth Circuit affirmed the summary judgement below, finding that the players’ state law right of publicity claims were preempted by Section 301(a) of the federal Copyright Act.  Acknowledging that some courts have recognized that the initial performance of a game itself is outside the subject matter of copyright, the Dryer court noted that 17 U.S.C. § 101 “includes within its purview fixed recordings of such live performances.”  Dryer at 5 (citations omitted).  “Because the [players] do not challenge the NFL’s use of their likenesses or identities in any context other than the publication of that game footage,” the Dryer court held that their “right of publicity claims challenge a ‘work . . . within the subject matter of copyright,’” Id. (citation omitted).

The Eighth Circuit agreed with the district court’s conclusion that the films are “expressive, rather than commercial, speech,” observing that they are not advertisements because (1) they do not propose a commercial transaction, and (2) although the films refer to the NFL, they do not reference the league as a “specific product.”  Id. at 6-7.  “To the contrary, customers pay to view the films, either by purchasing copies or through subscriptions to broadcasters like ESPN . . . . Because the films represent speech of independent value and public interest rather than advertisements for a specific product, the NFL’s economic motivations alone cannot convert these productions into commercial speech.”  Id. at 7.

Having found that the films are not commercial speech but are instead expressive works, the Dryer court held that “[t]he Copyright Act therefore preempts the [players’] attempt to control dissemination of the films and thereby exercise a right equivalent to ‘exclusive rights’ granted by copyright.”  Id. at 7 (citations omitted).  “When a right-of-publicity suit challenges the expressive, noncommercial use of a copyrighted work, . . . that suit seeks to subordinate the copyright holder’s right to exploit the value of that work to the plaintiff’s interest in controlling the work’s dissemination.”  Id. (citations omitted).

Dryer is one of the latest in a group of cases pitting those asserting their right of publicity against media, video game and other entertainment companies, with mixed results.  In those suits in which the defendant has prevailed, the rights afforded to those engaged in creative expression by the First Amendment have often proved decisive.  The Dryer decision teaches that the protections afforded to producers of content by the copyright laws can provide an equally effective bulwark against such suits.  For fans of football and quality entertainment, it is good to know that the Autumn Wind will continue to gust unimpeded.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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