Save NFL Films? Andrew Conflict Preemption Under Copyright Law Brandt May Be the Best Defense from the Gridirons of Barcelona and by Larry A

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Save NFL Films? Andrew Conflict Preemption Under Copyright Law Brandt May Be the Best Defense from the Gridirons of Barcelona and by Larry A Issues at the Circumventing Book Review: In Defense Recent Cyber-Terrorism XXI Olympic the NBA’s An Athlete’s of Fairey Developments Winter Games vs. Cyber-Warfare in Music Video 3 11 Salary Cap 14 Guide to Agents 16 and Fair Use 22 25 Games A PUBLICATION OF THE ABA FORUM ON THE ENTERTAINMENT AND SPORTS INDUSTRIES VOLUME 28, NUMBER 1 SPRING 2010 Dryer v. NFL: Can the “Voice PROFILE of God” Save NFL Films? Andrew Conflict Preemption Under Copyright Law Brandt May Be the Best Defense From the Gridirons of Barcelona and BY LARRY A. SILVERMAN FL Films has become a ubiquitous presence on the sports landscape. Using its Green Bay to the vast stockpiles of archival footage and its distinctive production style, it has Blogosphere Nproduced countless television programs, feature films, documentaries, and pro- motional spots that have helped to ingrain the National Football League (“NFL”) into America’s consciousness. However, a recent court decision in a class action suit brought BY EMMANUEL ROHAN by retired players raises serious questions about the NFL’s right to market and sell these films without compensating the thousands of players whose images and likenesses play he National Football Post CONTINUED ON PAGE 27 (“NFP”) burst online at T nationalfootballpost.com in Au- gust 2008, positioning itself in the highly competitive space of “up to the minute” The RIAA and Online Piracy football analysis and opinion. Attempt- ing to bring readers a unique, insider Why Bundling Access to Digital Music with perspective on all aspects of National Football League (“NFL”) front office Other Products and Services Would Give the dealings, it has quickly become known as one of the most credible sources of Industry Greater Control over Downloading analysis and news, frequently cited in the mainstream by ESPN, Sports Business BY MATTHEW HOFMEISTER Journal, and Football Outsiders, among others. Andrew Brandt is the president The following essay is the overall winner of the GRAMMY Foundation®’s 11th annual Enter- of NFP and provides some insights on a tainment Law Initiative (“ELI”) writing competition, open to students of all ABA-accredited career that has ranged from player agency law schools. The competition invites students to research, analyze, and submit essays regarding to team administration and now the helm a compelling issue facing the music industry and propose a solution. It promotes future careers of an emerging digital property where he in entertainment law by seeking out the nation’s top law students and giving them invaluable is flanked by some of the most respected networking and educational opportunities. A national panel of legal experts judges the papers in a minds in the football business that blind process and selects five finalists, including an overall winner. The ELI writing competition include former General Manager Mike awards over $20,000 in scholarships, including all-expense-paid trips for the contest winners to Lombardi and player-agent Jack Bechta. attend GRAMMY Week events, including the GRAMMY Telecast. And, the competition is co- Brandt’s path is one that can be truly 1 • Published in Entertinment & Sports Lawyer, Volume 28, Number 1, Spring 2010. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. ENDNOTES 9. Activision’s Answer, supra note 6, at Exhibit A. 20. Id. 1. Mark Savage, Bon Jovi Supports Cobain 10. Model Rules of Prof’l Conduct R. 1.1. 21. Id. Protest, BBC.com, Sept. 17, 2009, http://news.bbc. 11. Id. at cmt. 2. 22. Bruno, supra note 15. co.uk/2/hi/entertainment/8259846.stm. 12. Id. R. 1.3, cmt. 1. 23. Id. 2. Id. 13. No Doubt Wins Round in Activision Lawsuit, 24. Id. 3. Complaint at ¶¶ 11–22, No Doubt v. Activi- Company Town, http://latimesblogs.latimes.com/ 25. Id. sion Publ’g Inc., No. BC425268 (Cal. Super. Ct. Nov. entertainmentnewsbuzz/2010/04/no-doubt-wins-round- 26. Ethan Smith, MTV Games Seeks Buzz for 4, 2009). in-activision-lawsuit.html (Apr. 15, 2010, 18:47 PDT). “Rock Band,” WSJ.com, Jan. 19, 2010, http://on- 4. Id. at ¶ 3. 14. Id. line.wsj.com/article/SB10001424052748703626604 5. Id. 15. Antony Bruno, MTV to Launch New Track 575011000646263636.html. 6. Activision’s Answer to Complaint 1 and Upload Program for “Rock Band,” Billboard.biz 27. Id. Counterclaim at ¶ 10, pp. 3–4, No Doubt v. Activi- (July 17, 2009). 28. David Jenkins, RedOctane: Aerosmith’s sion Publ’g Inc., No. 2:09-cv-08872-SVW-VBK 16. Id. Guitar Hero Take Bigger Than Recent Albums, (C.D. Cal. Dec. 3, 2009). 17. Rock Band Network site, http://www. Gamasutra.com (Dec. 23, 2008). 7. Id. at pp. 14–18. rockband.com/rock-band-network. 29. Chris Remo, MTV Exec: Music Game Decline 8. No Doubt Sues Activision over Band Hero, 18. Id. “Not As Steep as You Might Think,” Gamasutra. Pop & Hiss, http://latimesblogs.latimes.com/music_ 19. Get Your Music in the Game, Rock Band, com, Jan. 25, 2010, http://www.gamasutra.com/view/ blog/2009/11/no-doubt-sues-activision-over-band- http://creators.rockband.com (last visited June 14, news/26944/MTV_Exec_Music_Game_Decline_ hero.html (Nov. 4, 2009, 14:25 PST). 2010). Not _As_Steep_As_You_Might_Think.php. Dryer v. NFL: Can the “Voice of God” Save NFL Films? test for express preemption under CONTINUED FROM PAGE 1 § 301(a), which provides that a state law claim is preempted if (1) the work at issue starring roles in these productions. is “within the subject matter of copyright,” This article will examine that decision (Dryer v. National Football League) and its and (2) the state law right is “equivalent potential impact on the ability of all professional sports leagues and teams to ex- to any of the exclusive rights” within the ploit its copyrighted archival video footage. It also will suggest that the inconsistent general scope of the copyright.9 interpretations by the courts of the express preemption doctrine under copyright law The court concluded that the NFL limits that doctrine’s usefulness as a defense to these types of right of publicity claims. had failed to establish either prong of this Finally, the article will argue that the conflict preemption analysis in a 2008 opinion two-part test. First, the court held that the from the Court of Appeals for the Third Circuit that, ironically, involved a success- “work” at issue was not the films them- ful right of publicity claim brought by the so-called Voice of God against NFL Films, selves; rather, it was the retired players’ may provide the clearest path toward avoiding the collision course between right of own identities. Accordingly, “the work at publicity claims and copyright law that is epitomized by the Dryer decision. issue” (the players’ persona) was not with- in the subject matter of the NFL’s copy- THE DRYER CASE right.10 Second, the court held that state On January 26, 2010, the U.S. District Court for the District of Minnesota denied law rights of publicity are not “equivalent” the NFL’s Motion for Judgment on the Pleadings in a class action suit brought by several to the exclusive rights afforded the NFL retired NFL players on behalf of retired players from all 50 states.1 The retired players, under its copyright. The court reasoned including Fred Dryer, a defensive end who played 13 years in the NFL (1969–81) and that rights of publicity protect “the right who later starred as Detective Hunter in the television show Hunter, alleged that for years of an individual to reap the rewards of his the NFL had earned substantial revenue and had enhanced the NFL’s brand awareness by or her endeavors,”11 while copyright law producing and selling hundreds of promotional films and videos that featured the images “protects the author’s exclusive right to and likenesses of the retired class member players.2 The retired players argued that while reproduce, distribute, perform or display the NFL “reaps record breaking revenues,” the players featured in these films and videos expressive works.”12 Because rights of have not been compensated for the use of their likenesses and images.3 The retired play- publicity “protect very different rights” ers claimed that this commercial exploitation of their identities and likenesses through than the copyright laws, those claims were the marketing and sale of these films and videos violated their rights of publicity afforded not “equivalent” to the exclusive rights by state statutes or the common law of all 50 states.4 afforded by the Act.13 The NFL’s motion asked the court to dismiss the right of publicity claims on First Importantly, in its memorandum in Amendment grounds and/or that the claims were barred by express preemption under the support of its motion, the NFL, in a Copyright Act.5 one-sentence footnote, referenced the The district court in Minnesota denied the NFL’s motion. The bulk of the opinion additional copyright preemption de- analyzed the First Amendment issue.6 This article, however, will focus on the copy- fense afforded by the doctrine of conflict right preemption issue. On that issue, the court, while recognizing “there is no dispute preemption, but stated, “the court need that the NFL has a valid copyright in the video clips used in the films,” nevertheless not reach this alternative basis to grant rejected the NFL’s claim that the retired players’ right of publicity claims were expressly this motion.”14 As a result, the conflict preempted by § 301 of the Copyright Act.7 preemption defense to the right of pub- At the outset of its decision, the court recognized that the Copyright Act “provides licity claims asserted by the retired class the exclusive source of protection for all legal rights that are equivalent to any of the ex- member players was never addressed in clusive rights under the general scope of the copyright.”8 It then referenced the two-part the Dryer opinion.
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