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Is scope of publicity rights being put to the test in Ali case?

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Even if you aren't a boxing fan, you likely know who is being talked about when the words, "I am the greatest" are heard. Heavyweight legend Muhammad Ali is the man identified with that phrase, even 40 years after he first uttered the words. Ali died last year.

Ali established himself as a monumental, international figure over the course of his lifetime, and that didn't just vanish when he died. His name and image still carry a great deal of commercial clout, which is why it is not surprising that Fox Broadcasting featured Ali prominently in a three-minute video as part of the pre-game promotion of this past year's Super Bowl. What Fox apparently didn't anticipate was the legal fallout that has surfaced.

A complaint filed recently in a federal court in another state by Muhammad Ali Enterprises claims Fox never received publicity rights permission to use any Ali representation in the self-promoting production. Further, it claims that Fox profited from the tactic, estimating that it derived about $30 million in value - gauged by the amount it could have charged commercial advertisers for the time.

To date, Fox hasn't commented on the matter.

To those unfamiliar, the case might seem to be a slam-dunk. At least one legal observer notes that Muhammad Ali Enterprises be able to easily prove that Fox did in fact use several Ali attributes - his name, his image, and voice - in the video. It might also not be much of a stretch, the observer says, to show that Fox used Ali for commercial purposes - though it might be harder to show that the use was promotional. Fox, however, will likely argue that the video is an "expressive work" with insight and commentary about Ali's life, and it is entirely protected under the First Amendment, just as books, movies, magazine articles or an ESPN profile about Ali are entirely protected. As such, under the First Amendment it doesn't matter if such works are commercial and make money.

The purpose of this post is not to take a side in this case. Rather, we use it to show that intellectual property matters, including defense of publicity rights, can create complicated litigation situations. Before launching a case, it's always best to seek a review of your situation from an experienced attorney.

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