Is the paean to the Champ admiration, or just an ad?
The Northern District of California telegraphed what may be a body blow for Fox Broadcasting Company. During a May 2018 hearing, the court indicated that a case brought against the broadcaster by Muhammad Ali Enterprises (MAE) might be allowed to continue.
MAE, which owns the IP rights for the late boxing champ, sued Fox in the Northern District of Illinois, Eastern Division back in October 2017. The complaint dealt with an advertisement that aired immediately before the Super Bowl in February of that year. The ad featured major turning points in Ali’s life and career, juxtaposed with footage of NFL greats including Joe Montana, Jerry Rice and Troy Aikman.
The suit aimed false endorsement charges against Fox under the Lanham Act, and accused the broadcaster of violating Ali’s right of publicity under Illinois state law.
Shortly thereafter, the parties agreed to move the case to the Northern District of California. The California court didn’t indicate in the hearing if the case would be converted to a California claim, but Fox is hoping that it will: The company wants the case dismissed under California’s Strategic Lawsuit Against Public Participation law (AKA anti-SLAPP), which requires the judge to review if public-interest First Amendment activity is involved in the material.
So, how do things look for Fox? The court didn’t provide a definitive answer; it also rejected the company’s motion to dismiss based on the briefs alone.
“A lot of [the case] boils down to the question of whether the segment we are talking about was commercial speech or not,” said the court. “If it’s an ad, Fox has some problems.”
Fox argued that the video wasn’t advertising, but rather an “editorial message” about the Champ, and therefore protected by the First Amendment.
Given that the placement appeared during one of the most expensive advertising events of the year, there may be a lot for the court to think about. Further, several courts looking at brands’ media references to celebrities, (such as in the form of an ad congratulating the celebrity for a recent achievement), have found that the nature of the message served to associate the brand with the celebrities’ goodwill, a promotional purpose, and thus commercial rather than editorial speech. Advertisers should be wary of making any reference to celebrities without permission, or risk claims of implied false endorsement and misappropriation of rights of publicity.