On June 3, 2016, boxing legend Muhammad Ali passed away from sepsis in an Arizona hospital, after a long fight with Parkinson’s disease. Ali was known for his brash, braggadocious banter before bouts, as much as he was known for his fighting style in the ring. Many, including (and especially) Ali himself, regard him as the greatest boxer ever. After winning an Olympic Gold medal, becoming the then-youngest ever heavyweight champion at the age of 21, losing and regaining the heavyweight title twice more, and inventing both the “Ali shuffle” and the “rope-a-dope,” he was probably right.
Aside from being a great boxer, Ali was also an entrepreneur. In 2006, Ali sold 80 percent of his company, G.O.A.T. LLC (Greatest of All Time), for $50,000,000. G.O.A.T. LLC, which was subsequently renamed Muhammad Ali Enterprises LLC (MAE), controlled the use of Ali’s intellectual property, including his name, image, likeness, and rights of publicity.
Super Bowl LI aired Sunday, Feb. 5, 2017 on Fox. During that broadcast, Fox ran a three-minute-long commercial about greatness and being the greatest. The commercial contained many images of people that appeared to look like Ali in his younger years, nicknames associated with Ali, clips of Ali fights, and the in-ring interview of Ali after he defeated Sonny Liston the first time. On Oct. 10, 2017, MAE sued Fox, alleging that Fox violated Ali’s rights of publicity under both the Lanham Act of 1946 and the Illinois Publicity Act of 1999.
“The right of publicity is a property right,” and that property right can be transferred even after an athlete such as Muhammad Ali dies. The publicity rights of athletes are protected under Section 43(a) of the Lanham Act, also known as the Trademark Act, which forbids “false designations of origin, false descriptions, and dilution” by:
[a]ny person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which–
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.
Trademarks are a form of intellectual property, and they are protected from “misleading representation” under the federal statute above. In order to enforce the property rights of the Lanham Act, a plaintiff must show the underlying tort that violated the property right above. In this case, MAE is alleging that Fox commercially misappropriated its intellectual property. The idea of commercial misappropriation comes from the historical enforcement of tort law against the violation of the common law right to privacy.
In order to successfully show commercial misappropriation by Fox, MAE “must prove: ‘(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.’” MAE brought the claim in Illinois, so there are additional statutory protections under their alternative cause of action. Of note, Illinois’ Publicity Act positively recites an individual’s right of publicity and the transferability of those rights, and persons found to violate the statute are liable for the greater of damages or profits and punitive damages if the violation was willful. In addition to the damages, profits, and punitive damages to which MAE may be entitled, the court may enjoin Fox from using the commercial, and award court costs.
Ultimately, the court’s decision will be based on the four elements of commercial misappropriation cited above. If MAE can show that Fox used Ali’s identity, then the commercial advantage of a three-minute Super Bowl advertisement about greatness should be relatively easy to prove. Super Bowl LI commercials were valued at approximately $5,000,000 for one 30 second advertisement. MAE’s claim in the amount of $30,000,000, for a commercial 6 times as long as a $5,000,000 commercial, seems like a reasonable calculation. The fact that MAE brought this complaint suggests a lack of consent. Finally, the resulting injury is clear just based on the value of the commercial; whether Fox acted willfully, or profited more than the value of the commercial, may increase the amount of damages that MAE is entitled to recover.
Since elements (2)-(4) of commercial misappropriation appear to be present based on the value of the commercial, apparent lack of consent, and clear injury, the court will almost certainly focus on whether Fox actually used Ali’s identity. Fox used a combination of previous television broadcasts of Ali and people of a similar height, build, wearing monikered robes. Courts have held an athlete’s stance, skin color, and a similar number can be used to “rationally find” the athlete “was readily identifiable, even though his facial features were not entirely visible.”
Fox may seek safe harbor in one of the limitations to the right of publicity. Courts have found that incidental or informational uses associated with an athlete do not necessarily violate the athlete’s right of publicity. However, even a newsworthy commercial may still qualify as unauthorized commercial misappropriation of the athlete’s persona or publicity rights. Additionally, Fox can assert that the expressive nature of the commercial is constitutionally protected expression under the First Amendment. The First Amendment prohibits “abridging the freedom… of the press,” which gives the media the right to publish newsworthy information. However, courts have limited this right when it is commercially exploitive of a performer.
Based on the Super Bowl LI commercial and the facts supporting MAE, Fox will have a hard time avoiding a court decision finding that it violated the publicity rights of Muhammad Ali.
Jonathan Lewis is a 3L at UNC-Chapel Hill School of Law.
 Matthew J. Mitten et al., Sports Law and Regulation Cases, Materials, and Problems, pp. 1014-16 (4th ed. 2017) (citing Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890)).
Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998) (quoting Eastwood v. Superior Court of Los Angeles County, 149 Cal. App. 3d 409, 417, 198 Cal. Rptr. 342).
https://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBARBLOGhttps://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBARBLOG2018-02-07 11:37:342018-02-07 11:37:34Current Legal Issue: Muhammad Ali Sues Fox