Fox Broadcasting Co. has come out swinging against a $30-million lawsuit by the estate of Muhammad Ali for unauthorized use of the late boxing legend’s image in a 2017 Super Bowl promotional spot entitled “The Greatest.”
Last October, Muhammad Ali Enterprises, LLC (MAE), filed a complaint against Fox in the Northern District of Illinois alleging violation of Ali’s publicity rights under Illinois and federal law. The parties later agreed to transfer the case to the Northern District of California, where both parties are located.
In its motion to dismiss filed January 16 in Oakland federal court, Fox claims the suit is barred by the First Amendment, Illinois and California statute, and preempted by the federal Copyright Act. Its primary defense is that the Super Bowl, and Ali himself, are matters of public interest and therefore exempt from statutory publicity protections, and also that the spot is exempt as part of a sports broadcast.
Fox argues that Illinois has no meaningful relationship to the case, therefore its law should not apply. Further, Fox asserts that Illinois choice-of-law rules allow it to invoke California anti-SLAPP law, which prohibits legal actions designed to chill exercise of free speech. (SLAPP stands for Strategic Lawsuit Against Public Participation.)
“[MAE]’s right of publicity claim in this case asserts a broad right to control how a television network like [ ] Fox Broadcasting may introduce and cover an event of enormous public interest like the Super Bowl,” the motion states. “[T]here can be little doubt that Ali is a figure of legitimate public concern and that [a] television biography [about him] is a subject of public interest,” [quoting a 1996 New York federal court opinion]. “More broadly, it is well-established that media content about sports is a matter of intense public interest.”
California’s right of publicity for deceased personalities is governed by state civil code, which Fox argues precludes MAE’s publicity claim on its face by broadly exempting both expressive works and advertising for those works. “[E]ven if The Greatest segment was an advertisement for Fox’s services, which it clearly is not, it would not be actionable because the “services” it allegedly advertises is a television broadcast (of the Super Bowl)” that is itself protected by the same statute as “newsworthy,” nonfictional entertainment.
In the alternative, Fox argues the court should reject the Illinois Right of Publicity Act claims because: 1) IRPA specifically exempts a “news, public affairs, or sports broadcast,” 2) the segment was not a commercial advertisement for a product, good, or service, and 3) even if it were deemed an advertisement for the Super Bowl, it is exempt as an advertisement for a sports broadcast.
Fox also argues its “Greatest” segment is constitutionally protected as a film docudrama about the life of a public and prominent person and an expressive work about a matter of public interest.
Finally, Fox argues that MAE’s claim for damages is independently barred because the California publicity statute requires that any claim to a deceased personality’s rights be registered at the time of the alleged infringement in order to allow standing to sue for damages. MAE registered its claim to Ali’s publicity rights on October 20, 2017, eight months after Fox’s Super Bowl broadcast, the motion charges.
A hearing is scheduled for March 22.
Super Lawyers named Chicago right of publicity attorney Peter Lubin a Super Lawyers and Illinois business dispute attorneys Patrick Austermuehle and Andrew Murphy Rising Stars in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. Lubin Austermuehle’s Illinois business trial lawyers have over thirty years of experience in litigating complex class action, copyright, noncompete agreement, trademark and libel suits, consumer rights and many different types of business and commercial litigation disputes. Our Lake Forest and Evanston business dispute lawyers, civil litigation lawyers, and copyright attorneys handle emergency business lawsuits involving copyrights, trademarks, injunctions, and TROS, covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist Chicago and Oak Brook area businesses and business owners who are victims of fraud. You can contact us by calling (630) 333-0333 or our toll-free number (833) 306-4933. You can also contact us online here.