Muhammad
Ali Enterprises, which owns the trademark rights, copyrights, right of
publicity, and all other intellectual property rights of Muhammad Ali, filed on
October 10 a false endorsement and right of publicity suit against Fox in the
United States District Court for the Northern District of Illinois. The case is
Muhammad Ali Enterprises LLC v. Fox Broadcasting Company, 1:17-cv-07273.
The
complaint alleges that Fox used Muhammad Ali’s identity without permission for
commercial purposes in a three-minute promotional video that the television network
broadcasted just before the start of the 2017 Super Bowl, which was also broadcasted
by Fox.
The
complaint further explains that, during his lifetime, Muhammad Ali endorsed “carefully selected products and services”
in order to “enhanc[e] and maint[ain] the
value of his legacy and endorsements” and thus was able to financially
profit from his identity and persona, while maintaining his integrity.
Muhammad
Ali’s most famous nicknames were The Greatest, The Louisville Lip and The
Champ. The complaint relates why Muhammad Ali was indeed “The Greatest.” His
accomplishments include an Olympic gold medal, several heavyweight titles, and
even two Grammy Award nominations. He was awarded the Presidential Medal of
Freedom in 2005, and was a human rights champion, speaking fiercely about
racial prejudice, a theme unfortunately still in the headlines. The BBC named
him the Sports Personality of the Century.
The Fox
video had “greatness” as its theme. The narrator urged viewers to watch it to
see “what it means to be the greatest.”
It showed the back of a boxer entering a tunnel, going to the ring, wearing a
robe with “The Greatest” and “The Lip,” two of Muhammad Ali’s nicknames,
written on the back. The boxer was not Muhammad Ali, but the video intersected
real footage of the boxing legend with images of a boxer wearing a robe with
Muhammad Ali’s nicknames.
Plaintiff
claims that such unauthorized use violates Section 43(a) of the Lanham Act as the video is likely to cause confusion
to consumers as to the affiliation of Fox with Muhammad Ali, and also claims
that this unauthorized use of Muhammad Ali’s likeness is a violation of his
right of publicity as protected by the Illinois Right of Publicity Act (IRPA) (765 Ill. Comp. Stat. 1075/1
to 1075/60°). The Act replaced the Illinois common-law tort of appropriation of
likeness when it entered into force on January 1, 1999. Muhammed Ali died in
2016, but the IRPA extends its protection to individuals for 50 years after the
date of their death.
IRPA
defines “commercial purposes” as “public
use or holding out of an individual's identity (i) on or in connection with the
offering for sale or sale of a product, merchandise, goods, or services; (ii)
for purposes of advertising or promoting products, merchandise, goods, or
services; or (iii) for the purpose of fundraising”. It could be argued that
the video was used to promote the broadcast of the 2017 Super Bowl. It showed
images of famous football players, also entering a tunnel, to go to the field.
It ended by displaying the Super Bowl LI logo – it was the 51st
Super Bowl – and ended with a screen showing the name of Muhammad Ali with his
year of birth and of death.
The
identity of a person under IRPA can be “any
attribute of an individual that serves to identify that individual to an
ordinary, reasonable viewer or listener, including but not limited to (i) name,
(ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.”
The video made use of Muhammad Ali’s identity, by using the nicknames on the
back of the robe, by making direct references to Mohammad Ali, by using of “The
Greatest” throughout the video.
Fox is
likely to claim that IRPA does not apply if the use of identity has been made
to “portray, describe, or impersonate
that individual [on]…television, or other audio, visual, or audio-visual work,
provided [it]…does not constitute in and of itself a commercial advertisement
for a product, merchandise, goods, or services.”
Therefore,
whether the video is or is not an advertisement for the Super Bowl is likely to
be at the center of the debate between the parties. Plaintiff claims that the
video is “far more than a tribute to
Muhammad Ali”, but that instead it “uses
Ali to define greatness…and thus to define the Super Bowl as “greatness” too.”
Fox may also
assert a First Amendment defense, claiming that the video is an artistic and
creative expression protected by speech, meant to be an homage to a sports
legend and providing news and information to the public.
This case
will probably settle out of court and is not likely to go the distance to
trial.
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