Based on the undisputed facts, the NFL’s films in this case are noncommercial speech; their profit-seeking and brand-building nature are standard features of noncommercial speech. Truthful, nondefamatory noncommercial speech deserves full First Amendment protection, and there is no justification for allowing Appellants to control speech about them in this case.
Separately, Appellants’ right of publicity claims are preempted by the Copyright Act, which allows owners of copyrighted works to exploit those works by reproduction, distribution, creation of derivative works, and public performance—precisely the conduct at issue here.
Finally, Appellants’ trademark claims are also precluded by the First Amendment, given that their appearance in the films at issue is relevant to the films’ subject matter and not explicitly misleading as to any possible endorsement.
Brief of Amici Curiae Law Professors in Support of Defendant-Appellee National Football League, Dryer v. National Football League (8th Cir. 2015)