Facenda v. N.F.L. Films, Inc.
| Decision Date | 03 May 2007 |
| Docket Number | Civil Action No. 06-3128. |
| Citation | 488 F.Supp.2d 491 |
| Parties | John FACENDA, Jr., executor of the estate of John Facenda and John Facenda, Jr., in his own right v. N.F.L. FILMS, INC., et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Paul A. Lauricella, Philadelphia, PA, Tracy P. Hunt, Timby Hunt LLC, Newtown, PA, for John Facenda, Jr.
Bruce P. Keller, Debevoise & Plimpton, New York City, Robert N. Spinelli, Kelley Jasons McGuire & Spinelli, LLP, Philadelphia, PA, for N.F.L. Films, Inc., et al.
In this action, John Facenda, Jr., in his own right and as executor of the estate of his father, John Facenda, (herein, "Facenda"), has sued NFL Films, Inc., The National Football League, and N.F.L. Properties, LLC, (collectively "NFL"), in connection with the use of recordings of the voice of the late Mr. Facenda in a film about the sports computer-simulation game, Madden NFL 06.1 Facenda has asserted a claim for invasion of privacy under Pennsylvania tort law, unauthorized use of name or likeness under 42 Pa.C.S.A. § 8316, and Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
The parties have filed cross-motions for summary judgment as to liability. For the reasons that follow, the court will enter judgment in favor of Facenda on his claim under 42 Pa.C.S.A. § 8316, and the Lanham Act, but in favor of the NFL on the tort claim.
A. John Facenda
John Facenda, who passed away in 1984, was a Philadelphia television news anchorman, and the narrator of NFL Films' game footage and highlight reels. Plaintiff has provided evidence showing Facenda's popularity in both roles, and the strength of the identification between his voice and NFL Films.
Barry Wolper, chief financial officer for NFL films conceded at his deposition that he had heard Facenda's voice described as "legendary", and that he, personally, would characterize Facenda's as a "legendary voice." Wolper Deposition Excerpt, attached to Facenda's Motion as Exhibit B, at 45. Further deposition testimony from Barry Wolper reads:
. . .
. . .
Id. a 42-44.
Robert Markopoulos, the NFL producer of the Madden film which is the subject of this lawsuit testified at his deposition:
Q: ... When did you first know who John Facenda was?
A. When I was probably a kid.
Markopoulos Deposition Transcript excerpt, attached to Facenda's Motion as Exhibit C at 19.
Moreover, certain lines of narration, as delivered by Facenda, "have achieved classic status," as NFL has expressed it, and are strongly associated not only with NFL Films, but with Facenda, personally. John Facenda, Jr., Deposition Transcript Excerpt, attached to the NFL's Response and Motion for Summary Judgment as Exhibit A at 148-150.
NFL presented Facenda's legacy to the public as something to be treated with reverence. In 1994, it released a video of compiled clips entitled "The Legendary John Facenda." or "The Legendary Voice of John Facenda." Sabol Deposition Transcript excerpt at ¶ Sabol's text in that video described Facenda as "touching the hearts of millions" Id. at 35. It is also stated in the video that Facenda's was "a voice that will forever be associated with pro football." Id. at 36.
Further, NFL released an audio CD entitled "The Power and the Glory", a compilation of "[NFL] music and sound effects and John's voice." Id. at 22-23; Wolper Deposition Testimony, supra, at 44-45. The largest writing on the back of the CD states: "Featuring the legendary voice of John Facenda and the music of Sam Spence." Reproduction of CD Cover, attached as Exhibit D to Facenda's motion.
Thus, although John Facenda is not a "legend" in the same category as, say, Hercules, or John Henry, Plaintiff has shown that he was, and remains, a very popular figure among football fans; that he was strongly associated with NFL Films; and that his voice/delivery is the major basis of his appeal.
Most of John Facenda's narration work for NFL Films was done pursuant to an oral agreement that he would be paid a certain amount for each program. In April, 1984, however, a few months before he passed away, Facenda entered a written agreement with NFL Films, which, as NFL wrote in the letter agreement, established a "blanket Release" for your work as a narrator within our various film and tape productions. Release, attached as Exhibit M to NFL's Response and Motion. The letter agreement was signed by John Facenda. Id.
Attached to the letter agreement was the form of a Standard Release, unsigned, but with John Facenda's initials in the upper left-hand corner. In relevant part, the Standard Release reads:
In consideration of [blank space with dollar sign], I hereby grant to NFL Films, Inc., the unequivocal rights to use the audio and visual film sequences recorded of me, or any part of them, on a worldwide basis, in perpetuity and by whatever media or manner NFL Films, Inc., sees fit, provided, however, such use does not constitute an endorsement of any product or service.
Id. at "Exhibit A."
It is not clear whether the Standard Release (which terminated with blank spaces for Mr. Facenda's signature, address, and Social Security Number, and for the date) was ever completed or signed. Nevertheless, the parties apparently agree that it establishes the permitted use for the recordings used in the Making of Madden. Although this is not an action for breach of contract, this Release has become significant for several reasons, as will appear in the discussion section of this Opinion.
In the summer of 2005, NFL Films created a 22 minute, 15 second production called "The Making of Madden NFL 06" ("The Making of Madden"). The subject of the production was the popular video game, Madden NFL 06, which simulates NFL football. The Making of Madden used 13 seconds of John Facenda's recorded voice, uttering three lines: (a) "Pro Football, the game for the ear and the eye"; (b) "This sport is more than a spectacle, it is a game for all seasons"; and (c) "Xs and Os on the blackboard are translated into imagination on the field." DVD of The Making of Madden, attached as Exhibit F to the NFL's Response and Motion.
In the production, Facenda's voice was somewhat distorted to sound computerized. Id. When Facenda recorded those lines, they were clearly intended to refer to NFL football itself. See Facenda, Jr., Deposition Transcript excerpt at 130-131. Nevertheless, the lines are juxtaposed against tape including video-game-like computer animation, as well NFL game footage.
The rest of The Making of Madden features endorsements by NFL football players, and interviews with creators of the Madden game. It describes the makers' efforts to reproduce electronically the motion of real football players, and the extensive use of NFL statistics to decide how each computerized player will perform, and well as the care taken in reproducing the appearance of elements such as the stadium and the players' uniforms. The production also describes the game's upbeat, youthful musical score, and includes interviews with musicians happy to be featured on the Madden soundtrack.
The Making of Madden aired on NFL's cable television station in August, 2006, shortly before the release date for Madden 06. At the end of the program, a "countdown" appeared on the screen, informing the viewer how many days were left before the game's release.
During the course of this litigation, NFL has described "The Making of Madden NFL 06" as a documentary. It has attached to its motion a large number of newspaper and magazine articles about Madden NFL, many of which reported the release of the 2006 version, and its enthusiastic reception by its fans. Appendix to NFL's Response and Motion.
Indeed, the articles tended to feature the game's realistic "motion capture" and use of player statistics, just as The Making of Madden did. See, e.g., Sam Farmer, Madden Obsession Turns NFL Pros into Real Garners, L.A. Times, Dec. 24, 2005, attached to NFL's Appendix as Exhibit 1 ( how Madden uses three-dimensional head scans of NFL players to create accurate likenesses); Nick Chordas, Mad about "Madden"; Hugely Popular Video Football Game Returns for its 17th Edition, Columbus Post-Dispatch, Aug. 21, 2006, attached to Appendix as Exhibit 2 ( how color commentary is added to review new plays each year); Kevin J. Delany, Is it Real ... or is it Madden?, Wall St. Journal, Sept. 20, 2004, attached to Appendix as Exhibit 5 (on motion capture and the creation of stadium settings). NFL has taken the position that, given the similarity in the material covered, the promotional aspects of The Making of Madden are no different from the promotional aspects of a positive newspaper review.
Facenda, however, has pointed out that, unlike the Wall Street Journal or the L.A. Times, the...
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