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8th Circ. Finds for NFL in Suit Filed by Ex-Players

ST. LOUIS (CN) - The Eighth Circuit upheld a summary judgment ruling in favor of the National Football League in a right-of-publicity lawsuit filed by three former players.

The players - John Dreyer, Elvin Bethea and Edward White - were part of a class action consisting of 23 former players. The class claimed the NFL's use of their images in promotional films violated the common law and statutory rights of publicity in various states and violated the Lanham Act.

The NFL settled the class action by establishing a fund to assist former players and a licensing agency to assist those players in exploiting their publicity rights.

Dreyer, Bethea and White opted out of the settlement and pursued their individual right to privacy and Lanham Act claims.

A federal court granted the NFL summary judgment, finding that the Copyright Act preempted the players' claims because the NFL held a valid copyright to the disputed images.

The players appealed, claiming that their play in football games during their NFL careers constitute part of their identities rather than "fixed" works eligible for copyright protection.

A three-judge panel of the 8th Circuit cited precedent from National Basketball Association v. Motorola Inc. in 1997 in upholding the federal court's decision.

"Although courts have recognized that the initial performance of a game is an 'athletic event' outside the subject matter of copyright, the Copyright Act specifically includes within its purview fixed recordings of such live performances," Judge Raymond W. Gruender wrote. "Indeed, the same decision that the appellants cite to support excluding live sporting events from copyright law recognized that '[t]he Copyright Act was amended in 1976 specifically to insure that simultaneously-recorded transmissions of live performances and sporting events would meet the Act's requirement that the original work of authorship be 'fixed in any tangible medium of expression.'"

Judges Roger L. Wollman and Kermit E. Bye concurred.

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