Legal News

?Voice of God? Case Yields Lively Argument Down in Philly

By Dan Slater

Documentary? Commerical? Infomercial? Documercial? That was the language being parsed by by the Third Circuit Court of Appeals on Thursday when it heard oral arguments in Facenda v. NFL Films, known, informally, as the “The Voice of God” case. In the suit, the estate of John Facenda, the oft-mocked and emulated sports announcer who died in 1984, claims that NFL Films improperly used Facenda’s distinctive voice in a promotional film for a John Madden video game, called “The Making of Madden.” Here’s a story from the Legal Intelligencer.

In the lower court, U.S. Magistrate Judge Jacob P. Hart granted summary judgment in favor of the plaintiff on two claims: a federal Lanham Act claim of “false endorsement” and a Pennsylvania state law claim of “unauthorized use of name or likeness.” Hart, in rejecting the NFL Films’ argument that Facenda’s suit (filed by his estate) failed due to a release he signed in 1984, ruled that the case hinged on whether the film — which aired on the NFL Network nine times in the days leading up to the August 2006 release of the Madden video game — was a documentary, as NFL Films claimed, or a promotional tool for the video game “Madden NFL 06.”

Hart concluded that it was not a documentary because it “lacks the journalistic independence typical of the maker of a documentary” and because NFL Films had a “direct financial interest” in the success of the video game.

But the court of appeals didn’t think the case was so cut and dried. “Before we get to any of the merits, how is it that summary judgment was proper in this case?” Third Circuit Judge Thomas L. Ambro asked the NFL’s lawyer, Debevoise & Plimpton’s Bruce P. Keller. Keller reportedly argued that NFL Films was entitled to judgment in its favor because Facenda never mustered any evidence that the use of his voice for 13 seconds in a 22-minute film would be perceived as an endorsement of the video game, and therefore there was no likelihood of confusion that Facenda was endorsing the videogame.

Facenda’s lawyer, The Beasley Firm’s Paul A. Lauricella (who appears particularly confident in his firm picture) argued that NFL Films’ central argument was premised on a faulty reading of the Lanham Act that would effectively require a plaintiff to show actual confusion when the statute calls only for proof of a likelihood of confusion.

Full post as published by Law Blog - WSJ.com on June 09, 2008 (boomark / email).