Appeals Court Tosses Lawsuit Against Broadcasters For Violating Publicity Rights During Football Game Broadcasts

from the legal-fantasies-are-the-worst-fantasies dept

Javon Marshall -- a former college athlete spearheading a putative class action against several broadcasters for uncompensated use of his likeness -- has just seen the Sixth Circuit Appeals Court send him (and everyone "similarly situated") back home without a parting gift.

Marshall -- like many others who believe the mere existence of intellectual property protections entitles them to a paycheck -- sued a long list of broadcasters for allegedly violating the Lanham Act and the Tennessee "right of publicity" law by not paying him and other athletes for using his name and "image" in game broadcasts and advertising. Marshall also claimed the NCAA's waiver student-athletes sign is "vague and unenforceable." That may very well be, but that claim was never addressed by the plaintiff and the NCAA was never a defendant. It only served as an introduction to a long list of alleged violations [PDF] that the lower court determined to be baseless accusations.

The Appeals Court makes short work [PDF] of Marshall's attempt to have the lawsuit revived, pointing out in a wonderful opening paragraph just how unrealisitic his claims are. The first sentence alone indicates how far from legal reality Marshall's class action lawsuit strayed.

To state the plaintiffs’ theory in this case is nearly to refute it.

Going on, the court punches a dramatic hole in Marshall's flawed logic.

The theory begins with the assertion that college football and basketball players have a property interest in their names and images as they appear in television broadcasts of games in which the players are participants. Thus, the plaintiffs conclude, those broadcasts are illegal unless licensed by every player on each team. Whether referees, assistant coaches, and perhaps even spectators have the same rights as putative licensors is unclear from the plaintiffs’ briefs (and, by all appearances, to the plaintiffs themselves).

Very briefly addressing the plaintiff's arguments, the court waves them away in two sentences, offering its wholehearted support of the lower court's decision.

In any event, the plaintiffs seek to assert claims under Tennessee law, the Sherman Act, and the Lanham Act on behalf of a putative class of collegiate players nationwide. The defendants—various college athletic conferences and television networks, among others—responded in the district court with a motion to dismiss, which the court granted in a notably sound and thorough opinion.

The court goes on to call the plantiffs' claims under Tennessee law "legal fantasy," pointing out that the state's "right of publicity" specifically exempts sports broadcasts. The plaintiffs' common-law claim asserts a right never granted by the state. The Sherman Act antitrust claim fails because if a right doesn't exist, it can't be licensed in a noncompetitive fashion. The court saves its best comment for Marshall's trademark claim.

That leaves the plaintiffs’ claim under the Lanham Act, whose relevant provision bars the unauthorized use of a person’s name or likeness in commerce when doing so “is likely to cause confusion” as to whether the person endorses a product. 15 U.S.C. § 1125(a)(1)(A). The theory here is that if, say, ESPN shows a banner for “Tostitos” at the bottom of the screen during a football game, then consumers might become confused as to whether all the players on the screen endorse Tostitos. Suffice it to say that ordinary consumers have more sense than the theory itself does.

This futile lawsuit was perhaps encouraged by the relative success of a similar lawsuit against Electronic Arts for using the "likenesses" of players in its sports videogames. However, there's a crucial difference that factored into the Ninth Circuit Appeals Court's decision on behalf of the players: California's oft-abused "right of publicity" law which doesn't contain the same exemptions as Tennessee's. And in that case, there's still hope of a rehearing which might tilt the court towards finding California's law must defer to the First Amendment, rather than the other way around.



Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: broadcasters, broadcasts, football, javon marshall, publicity rights, sports


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. icon
    crade (profile), 22 Aug 2016 @ 10:05am

    It was certainly worth a try. If I.P. lawsuits failed because common sense tells us they are being ridiculous, we wouldn't have any I.P. lawsuits left.

    link to this | view in thread ]

  2. icon
    nasch (profile), 22 Aug 2016 @ 10:34am

    EA suit

    However, there's a crucial difference that factored into the Ninth Circuit Appeals Court's decision on behalf of the players [against EA]: California's oft-abused "right of publicity" law which doesn't contain the same exemptions as Tennessee's.

    Isn't the fact that it's about a video game and not a game broadcast significant also?

    And I think the decision was "in favor of" the players, not "on behalf of" the players.

    link to this | view in thread ]

  3. identicon
    Norahc, 22 Aug 2016 @ 10:35am

    Publicity Rights

    How about we give everyone who wants to control how their name and image is used what they want? Everyone else will stop talking about them, mentioning them, or referring to them in any way. Every time their name would be mentioned, it is replaced with a censor beep...their face would be covered with a blackout dot.

    Kinda hard to get sponsorship money if nobody knows who you are.

    link to this | view in thread ]

  4. identicon
    Anonymous Coward, 22 Aug 2016 @ 11:33am

    Snack food

    Tostidos....mmmmmm

    link to this | view in thread ]

  5. icon
    crade (profile), 22 Aug 2016 @ 2:48pm

    Re:

    Hey Brian. My name is Gord. I'm a lesser known Prince in Nigeria. I am having some issues because fish and have 27.4 million U.S. Dollar that I need to store temporarily. If you want to help I can spend 10% for you! Could you please post your bank account and I will transfer money immediate! Thank fish!

    Gord

    link to this | view in thread ]


Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Discord

The latest chatter on the Techdirt Insider Discord channel...

Loading...
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.