Fox Moves for a TKO in Lawsuit Brought by Muhammad Ali Estate
Earlier this week Fox filed motions for judgment on the pleadings and an Anti-SLAPP motion to strike in the case brought last fall against it for airing a tribute to the recently deceased boxing great Muhammad Ali before its broadcast of the 2017 Superbowl.
I previously expressed the view that the lawsuit should be tossed on free speech grounds, as well as being exempt under Illinois law. Fox has now brought a motion making those exact arguments.
Notably, the case was first filed in a federal district court in Illinois, but it has since been transferred to the Northern District of California.
Fox contends that the Ali estate’s complaint should be dismissed. First, Fox contends that the right of publicity claim (brought under Illinois law) does not extend to “artistic and creative works” which it contends do not constitute a use for a “commercial purpose” under the Illinois statute. As I have written, such commercial purpose provisions are unclear and do not usually require that a use be only in advertising or promotion. Nevertheless, there are decent arguments—as Fox makes—that applying the statute to expressive works, such as the tribute video aired by Fox, would make the statute unconstitutional. Current case law points in conflicting directions as to interpreting Illinois law.
But those debates should be a sideshow here, as the governing Illinois statute expressly excludes application to “audio-visual work[s]” like television shows and films, which this use clearly is. In addition, Fox appropriately claims that this is also exempted as a noncommercial use under the exemption for such uses, expressly including uses in news, public affairs, and sports broadcasts or accounts. 765 ILCS 1075/35. (I note that California’s postmortem provision would also bar a claim from a deceased personality on similar grounds given its express exemption for audiovisual works.)
No doubt the Ali estate will continue to claim that the use was an advertising and promotional use and should not benefit from those exemptions. Given the actual video created, however, this should be an uphill (and losing) battle for the estate. But the ability to make such an argument highlights the dangers of putting too much weight on the commercial/noncommercial speech distinction when the two are so often combined.
Fox contends that even absent the use being expressly exempt from Illinois law—which it is—the First Amendment would bar such a claim. Citing to Sarver v. Chartier (9th Cir. 2016), Fox contends that strict scrutiny applies and protects storytellers like Fox. This argument is compelling, but as I have mentioned, Sarver, presents a challenge to this argument given its distinction between those with commercially valuable personalities and those who do not have such personalities. No question that Ali—in contrast to the army veteran plaintiff in Sarver—would be understood to qualify for such an economically valuable personality.
Given how some of these cases have come out of late, it is no wonder that Fox’s motion continues forward with the kitchen sink of defenses. It also argues that copyright preemption applies, citing Maloney v. T3 Media (9th Cir 2017). This is a less convincing argument given the facts—which do not focus on the use of licensed copyrighted works. The argument really boils down to another free speech defense.
As to the false endorsement claim, Fox rightly contends that the Rogers v. Grimaldi test should apply. Given that the use was artistically relevant and not explicitly misleading about sponsorship from the estate, those claims should be dismissed as well as the right of publicity claims.
I suspect the court will agree with Fox on this one, but given the recent outcomes in De Havilland v. FX, and Porco v. Lifetime, both on appeal, it is hard to be 100% certain. The estate’s claim should be a nonstarter here, and hopefully the district court will agree--it certainly has many routes to get to that conclusion.
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.