Dryer v. Nat'l Football League, Civil No. 09–2182 PAM/FLN.

• Decision Date: 10 October 2014
• Docket Number: Civil No. 09–2182 PAM/FLN.
• Citation: 55 F.Supp.3d 1181
• Parties: John Frederick DRYER, Elvin Lamont Bethea, and Edward Alvin White, Plaintiffs, v. NATIONAL FOOTBALL LEAGUE, Defendant.
• Court: U.S. District Court — District of Minnesota

55 F.Supp.3d 1181

John Frederick DRYER, Elvin Lamont Bethea, and Edward Alvin White, Plaintiffs

v.NATIONAL FOOTBALL LEAGUE, Defendant.

Civil No. 09–2182 PAM/FLN.

United States District Court, D. Minnesota.

Signed Oct. 10, 2014.

Jeffrey S. Gleason, Thomas C. Mahlum, Mathew R. Korte, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis, MN, Robert A. Stein, Bob Stein, LLC, Minnetonka, MN, for Plaintiffs.

Bruce P. Keller, Michael Schaper, Debevoise & Plimpton, LLP, New York, NY, Aaron D. Van Oort, Daniel J. Connolly, David J.F. Gross, Eileen M. Hunter, Faegre Baker Daniels LLP, Minneapolis, MN, for Defendant.

MEMORANDUM AND ORDER

PAUL A. MAGNUSON, District Judge.

This matter is before the Court on the parties' Motions for Summary Judgment. Plaintiffs seek partial summary judgment on several of Defendant National Football Leagues's affirmative defenses. The NFL asks for summary judgment on all of Plaintiffs' claims. For the reasons that follow, Plaintiffs' Motion is denied and the NFL's Motion is granted.

BACKGROUND

Plaintiffs John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White played professional football for Defendant National Football League. In this lawsuit, initially brought as a class action, Plaintiffs allege that NFL Films' use of video footage of them playing football violates their publicity rights, causes consumer confusion, and unjustly enriches the NFL.

Dryer played for the New York Giants from 1969 to 1971, and for the Los Angeles Rams¹ from 1972 to 1981. Footage of games in which Dryer played appears in 47 different NFL Films productions. Bethea played for the Houston Oilers² from 1968 until 1983. Thirty-two NFL Films productions include game footage in which Bethea appears as a player. White played for the Minnesota Vikings from 1969 to 1977, and for the San Diego Chargers from 1978 to 1985. Footage from games in which White played appears in 91 NFL Films productions. Dryer and White currently live in California; Bethea lives in Texas.

NFL Films productions are essentially compilations of clips of game footage into theme-based programs describing a football game or series of games and the players on the field. But the productions are more than just highlight reels; as one magazine put it, the productions' “artistry” “altered forever the way sports is presented on film.” David Lidsky, This is NFL Films, Fortune, Sept. 16, 2002 (Connolly Aff. Ex. V). The productions do not use footage from the television cameras that broadcast the game, but rather use NFL Films-dedicated cameras, with camera operators who choose what and whom to feature, in order to “ ‘best tell the story of the game.’ ” Id. (quoting Steve Andrich, Vice President of Cinematography for NFL Films). Most of the productions at issue here describe a single football game or football season, creating a 20– to 30–minute dramatic narrative featuring music, narration, and clips of important plays from the game itself in real time and slow motion.

Some productions also contain interviews with players, further enhancing the narrative. Plaintiffs each participated in these interviews after they retired: Dryer gave four post-retirement interviews to NFL Films, Bethea gave three interviews, and White gave one interview. In each case, they willingly participated in the interview and understood that the interview would be incorporated into NFL Films productions. (See, e.g., Bethea Dep. (Connolly Aff. Ex. G) at 93 (“I guess the thing was, I just was glad to be interviewed.”).) And in at least some cases, they signed waivers related to NFL Films' use of their interviews. (See, e.g., Dryer Dep. (Connolly Aff. Ex. F) at 173 (discussing “Guest/Performer Release” for Dryer's interview for the 2006 program, “What's in a Number”); Bethea Dep. at 102 (discussing release for 2007 interview).) Although not clear at the outset of this litigation, Plaintiffs do not challenge NFL Films' use of these interviews in its productions. Instead, they challenge only the use of the video footage of them playing football, whether for a single second or several seconds, in NFL Films productions.

Plaintiffs' Second Amended Complaint claims that the NFL's use of game footage in which they appear violates the Lanham Act, 15 U.S.C. § 1125, Minnesota's common-law right of publicity, California's statutory and common-law rights of publicity, and Texas's common-law right of publicity. (2d Am. Compl. (Docket No. 258), Counts 1–5.) They also purport to raise a claim for violation of publicity rights under the common-law or statutes of all 50 states (id. Count 8), and finally bring a claim for unjust enrichment against the NFL. (Id. Count 9.)³

As noted above, this case originated as a putative class action brought by 23 former professional football players on behalf of all similarly situated former players. Most of the original plaintiffs, however, resolved their differences with the NFL in a settlement that established a fund for the benefit of all former professional football players as well as a licensing agency to assist those players in exploiting their publicity rights. (Docket No. 431.) Dryer, Bethea, and White opted out of the settlement class and chose to pursue their individual claims. Thus, the only claims at issue in these Motions are the individual claims of Dryer, Bethea, and White.

DISCUSSION

A. Standard of Review

Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The Court must view the evidence and inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir.1996). However, “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action.”Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 323, 106 S.Ct. 2548 ; Enter. Bank, 92 F.3d at 747. A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials, but must set forth specific facts in the record showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Before the Court can turn to the merits of the parties' arguments, it must address a misconception evident in Plaintiffs' submissions. Throughout their briefing, Plaintiffs insist that Defendants' Motion impermissibly seeks to revisit this Court's legal analysis in the Order denying Defendants' Motion for Judgment on the Pleadings. (Docket No. 35.) But Plaintiffs overlook two important differences between the Court's previous analysis and that to be undertaken here.

In the prior Order, the Court was constrained by Plaintiffs' allegations and could only determine whether, based solely on those allegations, Plaintiffs had succeeded in stating a claim. Here, on the other hand, discovery is complete and now the Court must examine whether the record establishes any genuine issues of fact material to those claims. Thus, Plaintiffs are incorrect in arguing that the Court's preliminary determinations control here.

In addition, there is another important difference between the case as it stands now and as it stood in January 2010. In 2010, this case was a class action involving the claims of thousands of former football players. Today, this case involves the claims of three former football players. The analysis required to evaluate whether any of the thousands of original Plaintiffs could maintain their claims is much different from that required to determine whether these three individuals have established genuine issues of fact as to their claims.

B. First Amendment

The NFL principally argues that the First Amendment protects its use of game footage in NFL Films productions and outweighs Plaintiffs' interests in their rights of publicity. Most cases involving the First Amendment pit a specific government regulation against the freedom of speech. See, e.g., City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) (challenging city's ban on commercial publications in newspaper boxes on city-owned property). This case does not involve a government regulation, but rather involves a judicially enforced right of publicity, vindicated between private parties. The free-speech issues here are considerably more nuanced than those present in the regulatory context. Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 514 (7th Cir.2014). Indeed, “there is no judicial consensus on how to resolve conflicts between intellectual-property rights and free-speech rights.” Id.

But despite the lack of consensus, the task in this case is to balance Plaintiffs' rights to profit from their own likenesses and the NFL's freedom of expression. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1241 (9th Cir.2013) (courts must find “the appropriate balance between [Plaintiffs' publicity rights], on the one hand, and First Amendment rights, on the other”); see also C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 823 (8th Cir.2007) (“The Supreme Court has directed that state law rights of publicity must be balanced against first amendment considerations.”); Gionfriddo v. Major League Baseball, 94 Cal.App.4th 400, 409, 114 Cal.Rptr.2d 307 (Cal.Ct.App.2001) (“The First Amendment requires that the right to be protected from unauthorized publicity ‘be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the...