A trio of former National Football League players who elected not to participate in the $42 million settlement deal in a prior publicity rights suit against the league lost their appeal to the Eighth Circuit Court of Appeals when the federal appellate panel affirmed dismissal of their suit.

John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White played for the NFL in the 1960s, 70s, and 80s. The three were part of a putative class action lawsuit filed by former professional players against the league's NFL Films, claiming that the defendant violated the players' rights under right of publicity laws found in various states as well as the Lanham Act.

That case settled in 2013 with the NFL agreeing to provide $42 million for a "common good fund" to help create an agency to license players' publicity rights. But Dryer, Bethea, and White opted out of the deal and elected to pursue their own claims instead. A district court judge in Minnesota granted summary judgment in favor of the NFL and the Eighth Circuit affirmed.

The players argued that the district court incorrectly determined that the Copyright Act preempted their right of publicity claims. The plaintiffs' performances in football games and interviews constituted part of their identities, they told the court, not works eligible for copyright protection.

Section 301(a) of the Copyright Act provides that federal copyright law preempts "all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright … in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright."

The NFL films at issue easily met this definition, the panel said, and the statute specifically includes fixed recordings of live performances within its purview. "The appellants do not argue that NFL Films lacked permission to record appellants' live performances in NFL games," the court said. "Nor do they dispute that the NFL maintains an enforceable copyright in the footage that NFL Films gathered during those games. Because the appellants do not challenge the NFL's use of their likenesses or identities in any context other than the publication of that game footage, we hold that the appellants' right-of-publicity claims challenge a 'work … within the subject matter of copyright.'"

Commercial speech falls outside the scope of copyright law, the players countered, and the films represent advertisements for "NFL-branded football" to promote the league for its economic benefit.

Again, the court was not persuaded. The films do not propose a commercial transaction and do not reference the NFL as a specific product, the panel said. "The films tell stories of past contests featuring NFL teams and players, and they reference the league as part of those historical events rather than as a present-day product," the court wrote. "Moreover, consumer demand for the films demonstrates that they exist as 'products' in their own right."

Consumers pay to view the films, either by purchasing copies or via subscriptions to the broadcasters that license the films to air on their networks, the panel explained. "Because the films represent speech of independent value and public interest rather than advertisements for a specific product, the NFL's economic motivations alone cannot convert these productions into commercial speech," the court said, determining the films are "expressive speech" and the Copyright Act therefore preempts the plaintiffs' right of publicity claims.

Turning to the Lanham Act, the former players contended that the films leave the impression they currently endorse or associate themselves with the NFL. The plaintiffs relied upon survey evidence showing that a statistically significant number of survey participants concluded upon viewing the films that the depicted players endorsed the NFL.

However, the plaintiffs did not claim that any statements in the films were literally false or that the films implicitly conveyed a false impression, the panel said. "Although the films as a whole may portray the NFL in a positive light, nothing in the films implies that the appellants share that perspective," the court wrote. "To the contrary, the appellants had the opportunity to share their own views when they willingly participated in interviews with the films' creators, and they do not challenge the NFL's inclusion of those interviews in the films."

While some viewers of the content may misunderstand the extent to which the appellants continue to associate with or endorse the league, "this misunderstanding alone is insufficient" to overcome the NFL's motion for summary judgment, the Eighth Circuit concluded.

To read the decision in Dryer v. NFL, click here.

Why it matters: The decision is a resounding victory for the NFL, which settled the initial publicity rights and Lanham Act litigation for $42 million only to be on the receiving end of dozens of new suits from former players that opted out of the settlement deal. Given the court's affirmation that the Copyright Act preempts the former players' claims, the films were expressive works in their own right, and that consumer misunderstanding about the extent of the players' continued association with the league was insufficient, the federal appellate panel may have signaled unlikely success for any remaining player lawsuits.