Speaker 1: At the beginning of its broadcast of the Super Bowl.
Speaker 1: Earlier this year, Fox aired a video about what it
Speaker 1: means to be the Greatest, using footage from Muhammad Ali's career,
Speaker 1: including knockouts and uh and his lighting of the Olympic torch.
Speaker 1: But Muhammad Ali Enterprises, which owns the right to Ali's
Speaker 1: name and likeness, has now sued Fox for thirty million dollars.
Speaker 1: There are laws who is on the grounds that Fox
Speaker 1: did not obtain permission to use the footage of Ali
Speaker 1: in its promotional video. Here to talk about the cases,
Speaker 1: Chris Katropia, Professor of law at the University of Richmond
Speaker 1: School of Law. Chris, why don't we start by talking
Speaker 1: about what this Fox video actually was? What did they
Speaker 1: do here? Well, so the video is essentially a segue
Speaker 1: of talking about kind of Ali's career over time period
Speaker 1: sixties seventies up into the Olympic kind of lighting of
Speaker 1: the torch, and then it finally kind of segues into um,
Speaker 1: kind of the great um of the Super Bowl errors
Speaker 1: and so the the the constant segue is kind of
Speaker 1: Ali or a likeness of Ali walking down the tunnel
Speaker 1: like he's going to a fight in his different stages
Speaker 1: of his career, and then it eventually kind of transforms
Speaker 1: into the Packers, you know, and the Bears, um, et cetera.
Speaker 1: And Fox aired this um sometime prior to its actual
Speaker 1: Super Bowl coverage on Super Bowl Sunday. Chris, should Fox
Speaker 1: have known in this day where publicity rights are so
Speaker 1: closely guarded that it wouldn't get away with using actual
Speaker 1: footage of Muhammad Ali without being sued? Um So. So,
Speaker 1: first of all, we don't know if they've gotten away
Speaker 1: with it yet or not, because we just have a
Speaker 1: complaint being filed. But certainly, um, you can see different
Speaker 1: interests um in that someone like Muhammad Ali um or
Speaker 1: let's say Michael Jordan's is really concerned about the ability
Speaker 1: to control and commercialize their persona. But on the flip side,
Speaker 1: if I'm someone like Fox that wants to be able
Speaker 1: to have flexibility with different types of programming, um Uh,
Speaker 1: the interest don't align. So maybe Fox and I don't know,
Speaker 1: maybe Fox to kind of a calculated risk in the
Speaker 1: sense of saying, you know, there's a possibility of a claim.
Speaker 1: Maybe Ali's family or enterprises wasn't willing to fix on
Speaker 1: a certain price, and maybe Fox would like to start
Speaker 1: a trend to say that it can do certain things
Speaker 1: like this, that this is okay. There might be things
Speaker 1: that aren't okay, but this is okay, and so they
Speaker 1: kind of calculatedly said, you know what, we're gonna do
Speaker 1: this and and try to see if it's six. Well,
Speaker 1: what is the legal basis for suing Fox here? So
Speaker 1: it looks like from the complaint that was just filed
Speaker 1: there two kind of theories. Um. The first is a
Speaker 1: trademark based theory that the consumer would look at the
Speaker 1: ad and think incorrectly that Ali sponsors the Super Bowl
Speaker 1: or Fox or the NFL. So it's kind of a trademark,
Speaker 1: a likelihood of confusion as to endorsement. And then the
Speaker 1: second claim is a right to publicity claim. And this
Speaker 1: is the idea that I, as the holder of a
Speaker 1: persona can prevent it from being used commercially. Um. And
Speaker 1: if it is used commercially, you need to get my
Speaker 1: my permission. And that's a state law claim, this idea
Speaker 1: of right of publicity. So those are the two claims
Speaker 1: and what are potential defenses. So the big defense is
Speaker 1: probably going to be, first of all, that this was
Speaker 1: not a commercial use that it was this was merely
Speaker 1: kind of news reporting that we were kind of celebrating
Speaker 1: all these career after his death in two thousand and sixteen. UM.
Speaker 1: And so this non commercial use is protected and we're
Speaker 1: not improperly trying to monetize off of Ali. The second
Speaker 1: big defense is going to be a free speech defense. UM.
Speaker 1: That is that we have the freedom, even though we're
Speaker 1: a corporation, to speak about matters of public interest. And
Speaker 1: that's exactly what we were doing. We were just reporting
Speaker 1: on this great man and his great career, UM and
Speaker 1: thought it was a great way to segue into what
Speaker 1: the super Bowl is. Well. One thing, Chris, it seems
Speaker 1: interesting here is that you know a new if if
Speaker 1: a news show on Fox We're to show video of
Speaker 1: Muhammad Ali, certainly you wouldn't have a claim, a promotional
Speaker 1: claim like this from his estate. Is there any possibility
Speaker 1: Fox could say, you know that this we're covering a
Speaker 1: big sports event, this is effectively some kind of news documentary.
Speaker 1: I think that they will say that. I'm sure that
Speaker 1: will be one of their defenses. UM. And one of
Speaker 1: the big things that courts have a difficulty doing is
Speaker 1: that in some ways everything is commercial. Right, Even the
Speaker 1: news show on Foxes has a commercial nature to it
Speaker 1: because they're selling advertising spots, etcetera. Um. But um, there
Speaker 1: has to be some line. And so Fox will say
Speaker 1: this is merely news reporting. Molli will say, come on,
Speaker 1: this is all about promotion and advertising. Um. And this
Speaker 1: was essentially an ad Uh. There was an interesting case
Speaker 1: where Michael Jordan's sued a UM supermarket chain in Chicago
Speaker 1: that ran an add after he was inducted it into
Speaker 1: the NBA Hall of Fame that said congrats Michael um
Speaker 1: uh and Michael Jordan's sued for almost the exact same
Speaker 1: theories that munomad Ali is asserting here, saying that really
Speaker 1: was just an advertisement that was not news reporting and
Speaker 1: you can't trade off of my persona without paying me.
Speaker 1: Christ and about thirty seconds explain where Muhammad Ali Enterprises
Speaker 1: is getting the thirty million dollar number. They're getting it
Speaker 1: off of what the going market rate would be for
Speaker 1: the three minute spot. UM. So essentially you got a
Speaker 1: three minute spot from us, so you should have paid
Speaker 1: us um thirty million dollars. And that's where the theory
Speaker 1: is coming from. Our thanks to Chris Catropia, Professor of
Speaker 1: Law at the University of Richmond School of Law for
Speaker 1: being with us here on Bloomberg Law to discuss the
Speaker 1: Alia State's lawsuit against Fox for its Super Bowl video