Dryer v. NFL: Right of Publicity

The Eighth Circuit held that the Copyright Act preempts retired players' right-of-publicity claims over NFL Films productions, treating the historical highlight reels as expressive speech rather than ads.

Old game footage is a goldmine, and retired athletes have long argued they deserve a cut when leagues package their on-field exploits into glossy retrospectives. In Dryer v. National Football League, 814 F.3d 938 (8th Cir. 2016), decided February 26, 2016, the Eighth Circuit told a group of former players that their state right-of-publicity claims could not survive. The court held that the federal Copyright Act preempts those claims because NFL Films’ historical productions are expressive works within copyright’s subject matter, and the rights the players asserted were equivalent to the exclusive rights copyright already grants. The decision is a leading statement on how copyright preemption limits athletes’ control over footage of their own performances.

At a glance

Case: Dryer v. National Football League, No. 14-3428, 814 F.3d 938 (8th Cir. 2016).
Court: U.S. Court of Appeals for the Eighth Circuit; opinion affirming the District of Minnesota.
Posture: Appeal from summary judgment for the NFL by three retired players who opted out of a class settlement to pursue individual claims.
Holding: The Copyright Act preempts the players’ right-of-publicity claims over NFL Films productions; their separate Lanham Act false-endorsement claim also fails for lack of evidence the films were false or misleading.
Significance: A landmark application of copyright preemption to athletes’ publicity claims, confirming that expressive uses of game footage owned by the league are governed by copyright, not state publicity law.

Background: opting out to sue NFL Films

The litigation began as a putative class action by twenty-three former NFL players challenging NFL Films’ use of their images in productions that compile historical game footage into theme-based programs: documentary-style films about memorable games, seasons, and players. Twenty of those players settled, on terms that established a fund for the benefit of former players and a licensing agency to help them exploit their publicity rights. John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White opted out and pressed individual claims under various states’ right-of-publicity laws and under the federal Lanham Act for false endorsement.

The films at issue used real footage of the appellants’ actual performances in NFL games, narrated and edited into retrospective programs. The players argued that the league could not exploit their identities this way without consent and compensation. The district court granted summary judgment to the NFL, and the Eighth Circuit affirmed, resolving the appeal on two grounds: copyright preemption of the publicity claims and insufficient proof on the Lanham Act claim.

Copyright preemption of the publicity claims

Section 301 of the Copyright Act preempts state-law rights that are (1) equivalent to the exclusive rights within the general scope of copyright and (2) in works of authorship fixed in a tangible medium that fall within copyright’s subject matter. The Eighth Circuit found both conditions met. The films are audiovisual works, plainly within copyright’s subject matter, and the NFL owned the copyright in the footage and the productions assembled from it.

The harder question was whether a right-of-publicity claim is “equivalent” to copyright. The court reasoned that where the publicity claim seeks to control the use of one’s identity as embodied in a copyrighted expressive work, it is functionally a claim to control reproduction and distribution of that work, which are rights copyright reserves. The players were not complaining that their identities had been used to sell some separate product; they were complaining about the films themselves. Because the films were expressive works, and the asserted right amounted to controlling those works, the publicity claims were preempted.

Central to this analysis was the conclusion that the films were expressive speech, not commercial speech. The court applied the three-factor test from Porous Media Corp. v. Pall Corp., 173 F.3d 1109, 1120 (8th Cir. 1999): whether the speech is an advertisement, whether it refers to a specific product or service, and whether the speaker has an economic motivation for the speech. The productions were documentary-style accounts of football history, not advertisements for a product: they proposed no commercial transaction, and they referenced the NFL as part of a historical narrative rather than as a present-day product. Consumers paid to watch the films rather than the league paying outlets to show them, so the films had independent value as speech, and the NFL’s economic motivation alone could not convert them into commercial speech. That reinforced the conclusion that publicity claims over them gave way to copyright.

The Lanham Act false-endorsement claim

The players also argued that the films falsely implied they endorsed or were currently associated with the NFL, violating the Lanham Act’s bar on false or misleading commercial representations. The Eighth Circuit affirmed summary judgment here too. The appellants offered no evidence that any statement in the films was literally false; they did not dispute that the footage accurately depicted their real performances in NFL games. Nor did they identify any statement in the films’ audio commentary that might mislead viewers about their relationship with the league. The appellants did point to survey evidence that a statistically significant share of viewers came away believing the depicted players endorsed the NFL, but the court held that consumer misunderstanding alone cannot defeat summary judgment where the statements themselves are not objectively false or misleading. Absent evidence of a false or misleading statement, the false-endorsement theory failed.

The two holdings work together. Copyright preemption disposes of the attempt to control the expressive works through state publicity law, and the Lanham Act analysis forecloses recharacterizing the same complaint as a deception about endorsement. Together they leave little room for retired athletes to claim publicity-based control over truthful, expressive uses of league-owned game footage.

Open questions

How far does “expressive work” reach? The films were documentary-style retrospectives; closer cases involving mixed promotional content could test where expressive speech ends and advertising begins.
What about footage outside the copyright owner’s control? Preemption turned on the NFL owning the works; the analysis could differ where a third party’s use of an athlete’s identity is not anchored in a copyrighted work it holds.
Do other circuits agree? Right-of-publicity preemption doctrine varies, and the balance between copyright and publicity in expressive uses remains contested across jurisdictions.

Implications

For athletes and unions: Truthful, expressive uses of game footage owned by a league are hard to monetize through right-of-publicity claims; bargaining for footage rights belongs at the contract and collective-bargaining table, not in publicity litigation.
For leagues and media producers: Documentary and historical programming built from owned footage sits on firm ground when framed as expressive speech rather than advertising.
For litigators: The advertisement/expressive-speech line drives the result. Whether content is an ad, refers to a specific product, and is economically motivated determines whether publicity claims survive preemption.
For brand and endorsement deals: Using an athlete’s identity in an actual advertisement is a different matter; false-endorsement and publicity claims remain viable when the use is commercial speech, not an expressive work.

Frequently asked questions

Did the players win the right to control their game footage? No. The Eighth Circuit affirmed summary judgment for the NFL, holding that the Copyright Act preempts the players’ state right-of-publicity claims because the films are expressive works that fall within copyright’s subject matter, and the rights asserted were equivalent to copyright rights.

Why weren’t the films treated as advertisements? The court applied a three-factor test and concluded the films were not commercial speech: they were documentary-style productions about historic games rather than ads for a product. As expressive speech, they could not be controlled through publicity claims that copyright preempts.

Does this mean athletes never have publicity rights in footage? No. The holding is about productions that are expressive works incorporating game footage the league owns. Using a player’s identity in a true advertisement or endorsement, or outside the scope of a copyrighted work, can still raise viable right-of-publicity and false-endorsement claims.