A Case to Watch: Muhammad Ali v. Fox
by Jerry Glover
October 11, 2017
We are going to be following this case:
A lawsuit has been filed in federal district court in Illinois by Muhammad Ali Enterprises, LLC (MAE) against Fox Broadcasting as the result of a Fox-produced video which was broadcast immediately prior to the 2017 Super Bowl. The video featured footage of Muhammad Ali as well as shots of actors apparently standing in for Ali but wearing robes with his name on them and compared him to “the greatest” NFL stars. You can view the video here: https://www.youtube.com/watch?v=rURPF8C3GyY. MAE claims this video violates the late fighter’s right of publicity under Illinois law and violates the federal Trademark Act by falsely implying Ali’s endorsement of the Super Bowl and/or Fox. Muhammad Ali Enterprises LLC v. Fox Broadcasting Co., No. 17 CV 7273 (N.D. Ill. October 10, 2017).
Ali died in 2016. MAE retained all publicity and endorsement rights that Ali had. The complaint filed in this case claims that MAE has entered into deals with various organizations that allowed those organizations to use Ali’s name/likeness in a way that, according to the plaintiff’s complaint, “enhanced and maintained the value of his legacy and endorsements” but they did not authorize any such deal with Fox. Fox did not ask for permission to use Ali’s name/likeness in this video. The three-minute promotional video was broadcast by Fox in February 2017 to an audience of over 111 million viewers.
The plaintiff claims Fox violated Section 43(a) of the federal Trademark Act which prohibits use of someone’s trademark (and that could include a person’s name, nickname, image, etc.) which “is likely to cause confusion, mistake or deception as to the affiliation, connection or association” of Fox with Ali/MAE or as to the “origin, sponsorship or approval” of Fox’s services. Because Fox did not get MAE’s consent, the plaintiff also claims a violation of Illinois’ Right of Publicity Act which prevents use of a person’s identity for commercial purposes without consent.
The right of publicity claim requires MAE to show that the Fox video was “commercial.” A similar right of publicity issue was presented by another athlete, Michael Jordan, in a case decided by the U.S. Court of Appeals for the Seventh Circuit in 2014. Jordan v. Jewel Food Stores, Inc., 743 F.2d 509 (7th Cir. 2014). Sports Illustrated devoted an entire issue to a look back on Jordan’s career. Jewel purchased space for an ad saluting Jordan but included its logo prominently in the middle of the ad (see the add reprinted below).
The appeals court held that the prominence of the Jewel logo and message turned a tribute ad into a commercial ad calling attention to the grocery chain’s commercial properties. Even though the ad did not tout a product found at Jewel stores, it nevertheless had a commercial purpose. This image ad, as the court called it, is commercial speech because it tries to patronize customers with the ads appeal to sports fans and Jewel’s supposed connection to Jordan. Therefore, the right of publicity statute applied.
Can the same be said of the Ali video produced by Fox? We’ll keep you informed as the case makes its way through the court.