OAKLAND, Calif. (CN) – A federal judge indicated on Thursday that she will advance a lawsuit accusing Fox of using boxing legend Muhammad Ali’s likeness without permission in a 2017 Super Bowl promotional video.
U.S. Magistrate Judge Donna Ryu said in a hearing in downtown Oakland that she wanted a full record before making any rulings and would reject Fox’s motion to dismiss the case based on the parties’ briefs alone.
“A lot of it boils down to the question of whether the segment we are talking about was commercial speech or not,” Ryu said. “If it’s an ad, Fox has some problems.”
Muhammad Ali Enterprises LLC, which owns Ali’s intellectual-property rights, sued Fox Broadcasting Company in Chicago federal court last October. MAE accused the broadcaster of capitalizing on Ali’s death eight months prior by airing a promotional video immediately before the Super Bowl equating football players like Tom Brady with Ali to entice people to watch the game.
The video “informs or reminds the viewer of the characteristics and accomplishments that made Ali ‘The Greatest,’ repeatedly defining ‘greatness’ with examples Ali set in his life,” MAE’s complaint says. The video then transitions to imagery of star football players, such as Joe Montana, John Elway and Vince Lombardi, “to compare the NFL legends to Ali and thus to define them and the Super Bowl as ‘greatness’ too.”
MAE is seeking $30 million plus punitive damages for Fox’s failure to seek or obtain permission to use footage of Ali in the video, claiming false endorsement and violation of the Illinois Right of Publicity Act. MAE says Fox could have sold the video’s three minutes of airtime to advertisers for that amount.
“For many athletes, the most valuable asset they own – due to their lifetime of work and accomplishment – is their right of publicity,” the complaint states. “To allow someone else to exploit those rights without authorization or compensation would constitute a confiscation that would deprive an athlete of any control over the use of their identity, including the ability to monetize the value of the use of their identity by license or assignment.”
Fox attorney Nathan Siegel with Davis Wright Tremaine in San Francisco pushed back on Thursday. He argued that the video constituted an “editorial message” about Ali and was therefore protected speech under the First Amendment.
In a court brief, Fox describes the video as “part tribute, part history, and part editorial commentary on what makes an athlete truly ‘great.'”
Siegel acknowledged that the video was intended to make people watch the game and therefore had “promotional value.” But he argued that didn’t make it commercial speech.
Siegel tried to convince Ryu the Bolger test for determining whether something is commercial speech only applies when it is difficult to separate commercial elements from non-commercial ones.
“What is special about the Super Bowl is the Super Bowl itself is protected speech,” he told Ryu. “Fox has a First Amendment right to broadcast the Super Bowl.”
Ryu countered that the video constituted a “close call” in differentiating commercial and non-commercial speech, which makes it subject to the Bolger test. She noted that it encouraged viewers to equate Super Bowl players with Ali’s status as a legend.
MAE’s attorney, Fred Sperling of Schiff Hardin in San Francisco, agreed.
“The only meaningful nexus between the Super Bowl and Muhammad Ali is one that Fox manufactured,” he said. “Shortly after his [Ali’s] death, they took his great fame and celebrity and used it to promote the Super Bowl.”
Siegel took issue with Sperling’s argument. “The notion that coverage of the Super Bowl is only limited to football players really is a constitutional anathema,” he said. “There is no such restriction on peoples’ ability to tell stories.”
Fox also wants Ryu to convert MAE’s Illinois claim to a California claim and dismiss it under California’s Strategic Lawsuit Against Public Participation law.
Better known as the anti-SLAPP statute, the law is meant to curtail frivolous or malicious lawsuits with the potential to chill free speech.
Ryu did not indicate whether she would convert the claim.
Ali died in June 2016 at the age of 74. His birth name was Cassius Clay, but he changed it to Muhammad Ali when he converted to Islam in 1964.