Thursday, October 12, 2017

Company that Owns Muhammad Ali sues Fox over Tribute to Late Boxer

By Professor Jennifer E. Rothman

This post originally appeared on Rothman's Roadmap to the Right of Publicity.

The company that owns and manages former boxing great Muhammad Ali's right of publicity and trademarks has sued Fox Broadcasting in federal district court in Illinois. The complaint filed today claims that Fox's broadcast of a memorial to Muhammad Ali leading up to the broadcast of the 2017 Super Bowl violated Ali's right of publicity under Illinois law and the federal Lanham Act. The Lanham Act claim is that the broadcast falsely suggested that Muhammad Ali Enterprises (the plaintiff company) endorsed the short film.

The edited spot runs approximately 3 minutes in length and uses newsreel and sports footage of Ali, combined with footage of football greats, like Joe Montana and Tom Brady, to celebrate the spirit of legendary athletes and to honor the deceased Ali. Although some journalists have characterized the short as an advertisement, and one could see it as promoting the feel-good-spirit of the Super Bowl and Fox's upcoming broadcast, it is clearly styled as a tribute to Muhammad Ali who had died the year before. As such, I think there are strong arguments that it is not an advertisement and is not commercial speech. It therefore should receive full First Amendment protection.

Muhammad Ali Enterprises, now reportedly owned by Authentic Brands, was no doubt emboldened by Michael Jordan's victory against two supermarkets that used his name and jersey number in an issue of Sports Illustrated to celebrate his induction into the Basketball Hall of Fame. Jordan won more than $9 million in those cases. But those cases are quite different than this one. There was little dispute that the use of Jordan's name promoted the markets, and one of the one-page spreads included a coupon for a steak underneath the message about Jordan. It is not clear that this longer form celebration of Ali and athletics is so clearly directed at selling a product or show. (I also note, as I have written elsewhere, that greater latitude should have been given to the supermarkets to simply congratulate Jordan, though perhaps not to sell steaks with his name above them.)

Separate from a likely First Amendment defense, there are other likely hurdles to the claims. Under Illinois's statutory right of publicity law, Ali's right of publicity survives his death, but the law has numerous exceptions to liability, some of which likely apply here. The use was in a television program that is not a commercial advertisement. It also was part of a news, public affairs or sports broadcast. All of these uses are expressly exempted under Illinois law, as are advertisements for these broadcasts and other audiovisual works.

The false endorsement claim also should have a strong defense under the Rogers test that allows references to individual's names in expressive works if the use is artistically relevant and nothing is done to explicitly mislead as to sponsorship. Here the video seems to fit the bill for this defense--there is no suggestion of endorsement and the use is geared toward honoring a recently deceased athlete on the occasion of a major sporting event.

Undoubtedly Fox could have used Ali's name fewer times in the video, but if such spots honoring our deceased heros can be barred in such contexts, there is very little left of our First Amendment and speech protections to shore up a feature-length film or documentary about Ali. Such uses are for profit and arguably promote the networks, movies studios, and other people behind them. Such a conclusion would place at risk public engagement with public figures. Not only would celebratory portrayals like the one at issue in this lawsuit be placed at risk, but critical ones as well. Such an outcome would give the heirs and companies that own the rights to dead people the power to control history and shut down commentary about the deceased.

The court should therefore view this complaint with great concern and skepticism.

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