In a decision issued Friday,February 26, 2016 the Eighth Circuit affirmed a summary judgment ruling against NFL athletes John Frederick Dryer, Elvin Lamont Bethea, and Edward Alvin White.

The dispute dates back to 2009 when a number of ex-NFL athletes sued the NFL, alleging in part that the NFL misappropriated their “names, images, symbols, and likenesses, to promote the NFL, sell NFL-related products, and otherwise generate revenue for the NFL” in violation of state right of publicity law and the Lanham Trademark Act of 1946. The complaint further alleged that the NFL used the material to “trade on the ‘glory days’ of the NFL as a marketing and advertising technique to convey authenticity, enhance the NFL’s brand awareness and increase its revenue” via promotional videos and other things of that nature.

In 2013, the NFL settled with the vast majority of plaintiffs, and in doing so agreed to pay $42 million to establish a “common good” trust. The purpose of the trust was to help retired players with issues such as medical expenses, housing, and career transition. It further created a licensing agency to ensure that players would be compensated for promotional use of their identities following retirement.

Dryer, Bethea, and White opted out of the $42 million settlement, but the district court ultimately issued an order granting summary judgment against them. On appeal, the Eighth Circuit agreed, opining that the players’ claim that their performances should be protected by individual publicity rights lacked merit, thereby upholding the lower court’s ruling. Specifically, the opinion stated that “[a]lthough courts have recognized that the initial performance of a game is an ‘athletic event’ outside the subject matter of copyright … the Copyright Act specifically includes within its purview fixed recordings of such live performances.”

By Joseph M. Hanna of Goldberg Segalla