8th Circuit Clarifies Reach Of Copyright Act In Preempting Right Of Publicity Claims

8th Circuit affirms summary judgment in favor of NFL on former NFL players' right of publicity claim, finding the claim to be preempted by the Copyright Act.

Courts around the country have long struggled to define and articulate, with any uniformity, whether and in what circumstances the Copyright Act preempts a state-created right of publicity claim. The case law varies significantly in both the reasoning courts adopt and the results they reach. But in a recent opinion, Dryer v. Nat'l Football League, No. 14-3428, 2016 WL 761178 (8th Cir. Feb. 26, 2016), the 8th Circuit, in affirming disposal of a right of publicity claim against the NFL brought by three former NFL players over use of their images in game footage, delivered a much-needed dose of clarity on the subject.

The Dryer v. Nat'l Football League Dispute

Dryer involved three former NFL players who appeared in game footage that the NFL included in a number of films created by one of its affiliates, NFL Films. All three of the former players also contributed interviews for the films after their retirement. Dryer, 2016 WL 761178, at *1. As the Court explained, "NFL Films has produced hundreds of these films, and many have won awards for the creative elements they employ." Id. The three appellant players originally joined a putative class action against the NFL consisting of other former NFL players, but opted out of a settlement with the NFL to pursue their individual right of publicity claims for use of their images in the films. The appellant players also asserted a Lanham Act claim, not discussed here, also rejected by the district court and affirmed by the 8th Circuit.

The district court granted summary judgment in favor of the NFL on the players' right of publicity claim on a number of alternative grounds, including preemption under the Copyright Act. On appeal, the 8th Circuit reached only the copyright preemption issue.

The 8th Circuit began by acknowledging that Section 301 of the Copyright Act provides the boundaries for claims governed exclusively by the Copyright Act, preempting "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright... ." 17 U.S.C. § 301; Dryer, 2016 WL 761178 (quoting § 301). The Court then set forth the two-part test for determining whether federal copyright law preempts a state law cause of action: the "court asks (1) whether 'the work at issue is within the subject matter of copyright as defined in §§ 102 and 103 of the...