WEBVTT - Cotropia on Ali Enterprises Suing Fox (Audio)

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<v Speaker 1>At the beginning of its broadcast of the Super Bowl.

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<v Speaker 1>Earlier this year, Fox aired a video about what it

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<v Speaker 1>means to be the Greatest, using footage from Muhammad Ali's career,

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<v Speaker 1>including knockouts and uh and his lighting of the Olympic torch.

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<v Speaker 1>But Muhammad Ali Enterprises, which owns the right to Ali's

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<v Speaker 1>name and likeness, has now sued Fox for thirty million dollars.

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<v Speaker 1>There are laws who is on the grounds that Fox

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<v Speaker 1>did not obtain permission to use the footage of Ali

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<v Speaker 1>in its promotional video. Here to talk about the cases,

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<v Speaker 1>Chris Katropia, Professor of law at the University of Richmond

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<v Speaker 1>School of Law. Chris, why don't we start by talking

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<v Speaker 1>about what this Fox video actually was? What did they

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<v Speaker 1>do here? Well, so the video is essentially a segue

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<v Speaker 1>of talking about kind of Ali's career over time period

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<v Speaker 1>sixties seventies up into the Olympic kind of lighting of

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<v Speaker 1>the torch, and then it finally kind of segues into um,

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<v Speaker 1>kind of the great um of the Super Bowl errors

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<v Speaker 1>and so the the the constant segue is kind of

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<v Speaker 1>Ali or a likeness of Ali walking down the tunnel

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<v Speaker 1>like he's going to a fight in his different stages

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<v Speaker 1>of his career, and then it eventually kind of transforms

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<v Speaker 1>into the Packers, you know, and the Bears, um, et cetera.

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<v Speaker 1>And Fox aired this um sometime prior to its actual

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<v Speaker 1>Super Bowl coverage on Super Bowl Sunday. Chris, should Fox

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<v Speaker 1>have known in this day where publicity rights are so

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<v Speaker 1>closely guarded that it wouldn't get away with using actual

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<v Speaker 1>footage of Muhammad Ali without being sued? Um So. So,

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<v Speaker 1>first of all, we don't know if they've gotten away

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<v Speaker 1>with it yet or not, because we just have a

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<v Speaker 1>complaint being filed. But certainly, um, you can see different

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<v Speaker 1>interests um in that someone like Muhammad Ali um or

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<v Speaker 1>let's say Michael Jordan's is really concerned about the ability

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<v Speaker 1>to control and commercialize their persona. But on the flip side,

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<v Speaker 1>if I'm someone like Fox that wants to be able

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<v Speaker 1>to have flexibility with different types of programming, um Uh,

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<v Speaker 1>the interest don't align. So maybe Fox and I don't know,

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<v Speaker 1>maybe Fox to kind of a calculated risk in the

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<v Speaker 1>sense of saying, you know, there's a possibility of a claim.

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<v Speaker 1>Maybe Ali's family or enterprises wasn't willing to fix on

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<v Speaker 1>a certain price, and maybe Fox would like to start

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<v Speaker 1>a trend to say that it can do certain things

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<v Speaker 1>like this, that this is okay. There might be things

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<v Speaker 1>that aren't okay, but this is okay, and so they

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<v Speaker 1>kind of calculatedly said, you know what, we're gonna do

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<v Speaker 1>this and and try to see if it's six. Well,

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<v Speaker 1>what is the legal basis for suing Fox here? So

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<v Speaker 1>it looks like from the complaint that was just filed

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<v Speaker 1>there two kind of theories. Um. The first is a

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<v Speaker 1>trademark based theory that the consumer would look at the

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<v Speaker 1>ad and think incorrectly that Ali sponsors the Super Bowl

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<v Speaker 1>or Fox or the NFL. So it's kind of a trademark,

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<v Speaker 1>a likelihood of confusion as to endorsement. And then the

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<v Speaker 1>second claim is a right to publicity claim. And this

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<v Speaker 1>is the idea that I, as the holder of a

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<v Speaker 1>persona can prevent it from being used commercially. Um. And

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<v Speaker 1>if it is used commercially, you need to get my

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<v Speaker 1>my permission. And that's a state law claim, this idea

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<v Speaker 1>of right of publicity. So those are the two claims

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<v Speaker 1>and what are potential defenses. So the big defense is

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<v Speaker 1>probably going to be, first of all, that this was

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<v Speaker 1>not a commercial use that it was this was merely

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<v Speaker 1>kind of news reporting that we were kind of celebrating

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<v Speaker 1>all these career after his death in two thousand and sixteen. UM.

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<v Speaker 1>And so this non commercial use is protected and we're

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<v Speaker 1>not improperly trying to monetize off of Ali. The second

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<v Speaker 1>big defense is going to be a free speech defense. UM.

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<v Speaker 1>That is that we have the freedom, even though we're

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<v Speaker 1>a corporation, to speak about matters of public interest. And

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<v Speaker 1>that's exactly what we were doing. We were just reporting

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<v Speaker 1>on this great man and his great career, UM and

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<v Speaker 1>thought it was a great way to segue into what

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<v Speaker 1>the super Bowl is. Well. One thing, Chris, it seems

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<v Speaker 1>interesting here is that you know a new if if

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<v Speaker 1>a news show on Fox We're to show video of

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<v Speaker 1>Muhammad Ali, certainly you wouldn't have a claim, a promotional

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<v Speaker 1>claim like this from his estate. Is there any possibility

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<v Speaker 1>Fox could say, you know that this we're covering a

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<v Speaker 1>big sports event, this is effectively some kind of news documentary.

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<v Speaker 1>I think that they will say that. I'm sure that

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<v Speaker 1>will be one of their defenses. UM. And one of

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<v Speaker 1>the big things that courts have a difficulty doing is

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<v Speaker 1>that in some ways everything is commercial. Right, Even the

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<v Speaker 1>news show on Foxes has a commercial nature to it

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<v Speaker 1>because they're selling advertising spots, etcetera. Um. But um, there

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<v Speaker 1>has to be some line. And so Fox will say

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<v Speaker 1>this is merely news reporting. Molli will say, come on,

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<v Speaker 1>this is all about promotion and advertising. Um. And this

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<v Speaker 1>was essentially an ad Uh. There was an interesting case

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<v Speaker 1>where Michael Jordan's sued a UM supermarket chain in Chicago

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<v Speaker 1>that ran an add after he was inducted it into

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<v Speaker 1>the NBA Hall of Fame that said congrats Michael um

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<v Speaker 1>uh and Michael Jordan's sued for almost the exact same

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<v Speaker 1>theories that munomad Ali is asserting here, saying that really

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<v Speaker 1>was just an advertisement that was not news reporting and

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<v Speaker 1>you can't trade off of my persona without paying me.

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<v Speaker 1>Christ and about thirty seconds explain where Muhammad Ali Enterprises

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<v Speaker 1>is getting the thirty million dollar number. They're getting it

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<v Speaker 1>off of what the going market rate would be for

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<v Speaker 1>the three minute spot. UM. So essentially you got a

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<v Speaker 1>three minute spot from us, so you should have paid

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<v Speaker 1>us um thirty million dollars. And that's where the theory

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<v Speaker 1>is coming from. Our thanks to Chris Catropia, Professor of

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<v Speaker 1>Law at the University of Richmond School of Law for

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<v Speaker 1>being with us here on Bloomberg Law to discuss the

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<v Speaker 1>Alia State's lawsuit against Fox for its Super Bowl video