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Dryer v. National Football League

United States District Court, D. Minnesota

October 10, 2014

John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White, Plaintiffs,
v.
National Football League, Defendant

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Arthur Boylan, Special Master: Arthur J Boylan, LEAD ATTORNEY, Minneapolis, MN USA.

For John Frederick Dryer, on behalf of themselves and all others similarly situated, Joseph Michael Senser, on behalf of themselves and all others similarly situated, Elvin Lamont Bethea, on behalf of themselves and all others similarly situated, Dante Anthony Pastorini, on behalf of themselves and all others similarly situated, Edward Alvin White, on behalf of themselves and all others similarly situated, Plaintiffs: Aaron R Fahrenkrog, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Jeffrey S Gleason, LEAD ATTORNEY, PRO HAC VICE, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Mark D Passin, LEAD ATTORNEY, PRO HAC VICE, Robins Kaplan Miller & Ciresi LLP, Los Angeles, CA USA; Michael V Ciresi, Thomas C Mahlum, William Bornstein, LEAD ATTORNEYS, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Brian C Gudmundson, Charles S Zimmerman, Zimmerman Reed, PLLP, Minneapolis, MN USA; Daniel S Mason, PRO HAC VICE, Zelle Hofmann Voelbel & Mason LLP, San Francisco, CA USA; Daniel S Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA; J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Jan M Conlin, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Thomas J Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA.

For Fred Barnett, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Michael ¶ Lehmann, LEAD ATTORNEY, PRO HAC VICE, Hausfeld LLP, San Francisco, CA USA; Brian C Gudmundson, Zimmerman Reed, PLLP, Minneapolis, MN USA; Charles S Zimmerman, Zimmerman Reed, PLLP, Minneapolis, MN USA; Daniel S Mason, PRO HAC VICE, Zelle Hofmann Voelbel & Mason LLP, San Francisco, CA USA; Daniel S Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Thomas J Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC, USA.

For Tracy Simien, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey S Gleason, Lead Attorney, Pro Hac Vice, Robins Kaplan Miller & Ciresi Llp, Mpls, Mn, Usa; Jeffrey Sullivan Gleason, Lead Attorney, Robins Kaplan Miller & Ciresi Llp, Mpls, Mn Usa; Michael ¶ Lehmann, Lead Attorney, Pro Hac Vice, Hausfeld Llp, San Francisco, Ca Usa; Brian C Gudmundson, Zimmerman Reed, Pllp, Minneapolis, Mn Usa; Charles S Zimmerman, Zimmerman Reed, Pllp, Minneapolis, Mn Usa; Daniel S Mason, Pro Hac Vice, Zelle Hofmann Voelbel & Mason Llp, San Francisco, Ca Usa; Daniel S Ward, Pro Hac Vice, Ward & Ward, Pllc, Washington, Dc Usa; J Gordon Rudd, Jr, Zimmerman Reed, Pllp, Minneapolis, Mn Usa; James J Pizzirusso, Pro Hac Vice, Hausfeld Llp, Washington, Dc Usa; Mark J Feinberg, Zelle Hofmann Voelbel & Mason Llp, Mpls, Mn Usa; Michael D Hausfeld, Pro Hac Vice, Hausfeld Llp, Washington, Dc Usa; Robert A Stein, Bob Stein LLC, Minnetonka, Mn Usa; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason Llp, Mpls, Mn Usa; Thomas J Ward, Pro Hac Vice, Ward & Ward, Pllc, Washington, Dc Usa.

For Darrell Alexander Thompson, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey Sullivan Gleason, Lead Attorney, Robins Kaplan Miller & Ciresi Llp, Mpls, Mn Usa; Michael ¶ Lehmann, Lead Attorney, Pro Hac Vice, Hausfeld Llp, San Francisco, Ca Usa; Brian C Gudmundson, Zimmerman Reed, Pllp, Minneapolis, Mn Usa; Charles S Zimmerman, Zimmerman Reed, Pllp, Minneapolis, Mn Usa; Daniel S Mason, Pro Hac Vice, Zelle Hofmann Voelbel & Mason Llp, San Francisco, Ca Usa; Daniel S Ward, Pro Hac Vice, Ward & Ward, Pllc, Washington, Dc Usa; J Gordon Rudd, Jr, Zimmerman Reed, Pllp, Minneapolis, Mn Usa; James J Pizzirusso, Pro Hac Vice, Hausfeld Llp, Washington, Dc Usa; Mark J Feinberg, Zelle Hofmann Voelbel & Mason Llp, Mpls, Mn Usa; Michael D Hausfeld, Pro Hac Vice, Hausfeld Llp, Washington, Dc Usa; Robert A Stein, Bob Stein LLC, Minnetonka, Mn Usa; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason Llp, Mpls, Mn Usa; Thomas J Ward, Pro Hac Vice, Ward & Ward, Pllc, Washington, Dc Usa.

For Jim Ray Smith, on behalf of themselves and all others similarly situated, Irvin Acie Cross, on behalf of themselves and all others similarly situated, Bruce Allan Laird, on behalf of themselves and all others similarly situated, Brian Duncan, on behalf of themselves and all others similarly situated, Plaintiffs: Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Daniel S Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA; J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, MN USA.

For Reginald Joseph Rucker, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey S Gleason, LEAD ATTORNEY, PRO HAC VICE, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Daniel S Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA; J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, MN USA.

For Billy Joe Dupree, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Daniel S Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA; J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, MN USA.

For Mark Gregory Clayton, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Daniel S Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA; J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC, USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, MN USA.

For Preston Pearson, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Daniel S Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC, USA; J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Thomas J Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA; Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, MN USA.

For Reginald Mckenzie, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Daniel S Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA; J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, MN USA.

For Joseph Barney Lemuel, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Thomas J Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA; Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, MN USA.

For Jackie Larue Smith, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC, USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, MN USA.

For Paul James Krause, on behalf of themselves and all others similarly situated, Plaintiff: Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Daniel S Ward, PRO HAC VICE, Ward & Ward, PLLC Washington, DC USA; J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA; James J Pizzirusso, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Mark J Feinberg, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Robert A Stein, Bob Stein LLC, Minnetonka, MN USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, MN USA.

For James Nathaniel Brown, on behalf of themselves and all others similarly situated, Michael James Haynes, on behalf of themselves and all others similarly situated, Plaintiffs: Jeffrey Sullivan Gleason, LEAD ATTORNEY, Robins Kaplan Miller & Ciresi LLP, Mpls, MN USA; Michael D Hausfeld, PRO HAC VICE, Hausfeld LLP, Washington, DC USA; Shawn D Stuckey, Zelle Hofmann Voelbel & Mason LLP, Mpls, MN USA; Thomas J Ward, PRO HAC VICE, Ward & Ward, PLLC, Washington, DC USA; Daniel E Gustafson, Gustafson Gluek PLLC, Mpls, MN USA.

For National Football League, Defendant: Bruce P Keller, PRO HAC VICE LEAD ATTORNEY, Michael Schaper, PRO HAC, Debevoise & Plimpton, LLP, New York, N.Y. USA; Aaron D Van Oort, Faegre Baker Daniels LLP, Mpls, MN USA; VICE, Debevoise & Plimpton, LLP, New York, N.Y. USA; Daniel J Connolly, Faegre Baker Daniels LLP, Mpls, MN USA; Eileen M Hunter, Faegre Baker Daniels LLP, Mpls, MN USA.

For Bob Stein LLC, Defendant: Robert A Stein, Bob Stein LLC, Minnetonka, MN USA.

For Zimmerman Reed Pllp, Movant: J Gordon Rudd, Jr, Zimmerman Reed, PLLP, Minneapolis, MN USA.

For Hausfeld Llp, Movant: Michael D Hausfeld, LEAD ATTORNEY, Hausfeld LLP, Washington, DC USA.

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MEMORANDUM AND ORDER

Paul A. Magnuson, United States District Court 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,

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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 Rams[1] from 1972 to 1981. Footage of games in which Dryer played appears in 47 different NFL Films productions. Bethea played for the Houston Oilers[2] 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 whet 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

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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; 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

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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 press.'" (quoting Gill v. Hearst Publ'g Co., 40 Cal.2d 224, 228, 253 P.2d 441 (Cal. 1953)).

Put another way, this Court must determine whether the protection due the NFL Films productions under the First Amendment is outweighed by Plaintiffs' interest in their own publicity rights. There are two different approaches to this balancing test. First, some courts examine whether the work being challenged is commercial or non-commercial speech. See, e.g., Jordan, 743 F.3d at 515. Plaintiffs do not dispute that if the Court determines that the productions at issue are expressive, non-commercial works, their claims against those films fail. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (content-based restrictions on non-commercial speech are appropriate " only in the most extraordinary circumstances" ).

The second approach is to examine the challenged use of the plaintiff's likeness or persona and determine whether that use supersedes the asserted right of publicity. See, e.g., C.B.C., 505 F.3d at 823-24. Courts following this approach review the challenged use's value under the First Amendment but do not engage in the more detailed commercial-speech inquiry.

The parties have extensively argued and briefed whether the productions at issue are commercial speech, and the Court has previously undertaken a preliminary commercial-speech analysis. (See Jan. 28, 2010, Mem. & Order (Docket No. 35) at 9-13.)

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Thus, the Court will begin by determining whether the challenged productions are commercial speech.

1. Commercial Speech

To determine whether the speech at issue is commercial speech, a court must evaluate the " content, form, and context" of the speech " as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The ultimate question of whether speech is commercial is a question of law. Id. at 148 n.7. In the Order on the Motion for Judgment on the Pleadings, the Court determined that Plaintiffs had sufficiently and plausibly alleged that the programs at issue were commercial speech. (Jan. 28, 2010, Mem. & Order at 13.)

The Court must revisit that determination here in light of the fully developed record. The Court's previous discussion of the commercial-speech analysis noted that the Supreme Court has carefully avoided any precise definition of commercial speech. (Id. at 3.) But despite the Supreme Court's warnings about " the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category," City of Cincinnati, 507 U.S. at 419, most discussions of commercial speech in this Circuit use the three-part test set forth in Porous Media Corp. v. Pall Corp.: whether the speech is an advertisement, whether it refers to a specific product, and the speaker's economic motivation for the speech. 173 F.3d 1109, 1120 (8th Cir. 1999) (citing Bolger, 463 U.S. at 66). None of these factors, standing alone, renders the speech at issue commercial, but the " combination of all these characteristics, however, provides strong support" for the conclusion that the speech is commercial. Bolger, 463 U.S. at 66 (emphasis in original). The Bolger Court warned that it did not " mean to suggest that each of the ...


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