## Facts

- John Facenda, a well-known sports broadcaster and narrator for NFL Films, recorded narration used in many NFL Films productions before his death in 1984.
- Facenda executed a release granting NFL Films rights to use recorded sequences of him, with an express limitation that the use could not “constitute an endorsement of any product or service.”
- In 2005, the NFL produced and aired “The Making of Madden NFL 06,” a television program about EA’s Madden NFL 06 video game.
- The program was produced under a promotional agreement connected to the game’s launch, for which EA paid the NFL $750,000, and it aired repeatedly during the days immediately preceding the game’s release.
- The program incorporated about 13 lines of Facenda’s recorded voice from earlier NFL Films productions, presented in a style similar to his well-known NFL narration.
- Facenda’s Estate alleged the use of his voice in a program tied to the game’s marketing created a misleading impression that he endorsed the video game, violating § 43(a) of the Lanham Act and Pennsylvania’s statutory right of publicity.
- The NFL contended the release authorized the use, the program was editorial/entertainment rather than advertising, and the state-law claim was preempted by federal copyright law because the underlying NFL Films works were copyrighted.

## Issues

1. Whether summary judgment for the Estate on a Lanham Act § 43(a)(1)(A) false-endorsement claim was proper given the evidence on likelihood of consumer confusion.
2. Whether applying the Lanham Act to the program violated the First Amendment because the program was noncommercial speech.
3. Whether federal copyright law (17 U.S.C. § 301) preempted the Estate’s Pennsylvania statutory right-of-publicity claim based on use of Facenda’s voice in the program.

## Decision

- The Third Circuit vacated summary judgment for the Estate on the Lanham Act false-endorsement claim and remanded for trial because disputed facts remained on likelihood of confusion.
- The court rejected the NFL’s First Amendment defense, concluding the program was commercial speech produced and timed to promote the video game.
- The court affirmed summary judgment for the Estate on the Pennsylvania right-of-publicity claim and held the claim was not preempted by copyright law.
- The court treated the use of Facenda’s voice as falling within protected identity interests under Pennsylvania’s “name or likeness” language for commercial-use prohibitions.

## Legal Principles

- A Lanham Act § 43(a)(1)(A) false-endorsement claim requires proof of likely consumer confusion, not actual confusion, though actual confusion evidence may be relevant.
- Likelihood-of-confusion analysis must be tailored to endorsement-by-identity claims, focusing on recognition of the identity, similarity of the challenged use, marketing context, purchaser care, intent, and the connection between the identity and the product.
- Content framed as documentary or behind-the-scenes may still be commercial speech when produced under a promotional contract and disseminated in a release-driven marketing window.
- Copyright preemption under 17 U.S.C. § 301 does not apply where the state claim includes an “extra element” that makes it qualitatively different from copyright’s exclusive rights; use of identity for commercial or advertising purposes can supply that element.
- Copyright ownership in a work containing a person’s performance does not, by itself, confer a right to exploit that person’s identity in advertising without consent.

## Conclusion

The Third Circuit required a trial on whether use of Facenda’s voice in a promotional program was likely to cause consumer confusion about endorsement under the Lanham Act, but upheld liability under Pennsylvania’s statutory right of publicity and held the state claim was not preempted by copyright because it targeted unauthorized commercial exploitation of personal identity rather than copying as such.


Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008)