Fox’s Costly Three Minutes

By: Eli Daniels

Fox’s three-minute commercial during Super Bowl 2017 might be more expensive than  originally intended, as Muhammad Ali Enterprises is suing Fox for using Ali’s name, image and likeness in the clip.[1] Muhammad Ali Enterprises is seeking more than $30 million in damages in the U.S. District Court for the Northern District of Illinois.[2] Muhammad Ali Enterprises derives its request for $30 million in relief from the assertion that Fox could have sold the three-minute promotional clip, which was seen by more than 100 million people, to advertisers for $30 million.[3]

Muhammad Ali Enterprises, which is owned by Authentic Brands Group, holds the trademark rights, copyrights, rights of publicity and all other intellectual property rights of Muhammad Ali.[4] Fox never asked for the company’s authorization before airing the video during the Super Bowl.[5] The lawsuit alleges that the advertisement is a false endorsement of Fox under the Lanham Act and a violation of the Illinois Right of Publicity Act.[6]  The commercial starts as a tribute to Ali, displaying the image of the boxer in a robe that reads “The Greatest” and “The Lip,” which are two common nicknames of the celebrated boxer.[7] Subsequently, actual footage of Ali is shown with audio of him shouting “I am the greatest!”[8]  The rest of the video highlights critical moments throughout Ali’s life, such as him objecting to being inducted in the U.S. Army during the Vietnam War, lighting the Olympic torch in Atlanta in 1996, and the Rumble in the Jungle.[9] The clip ends by presenting NFL greats such as Joe Montana, Vince Lombardi, Tom Brady, and Peyton Manning, portraying the Super Bowl as an opportunity to be called “The Greatest.”[10]

Muhammad Ali Enterprises first seeks relief under Illinois’ Right of Publicity Act. The relevant part of the act states that “If an individual’s death occurs after the effective date of this Act, a person may not use that individual’s identity for commercial purposes for 50 years after the date of the individual’s death without having obtained previous written consent from the appropriate person…”[11] In order for Muhammad Ali Enterprises to be successful on this claim, it needs to prove three elements.[12] First, it will need to prove that Fox used Ali’s Identity, defined by the act as “any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.”[13] Second, it needs to prove that Ali’s identity was used for commercial purposes, meaning “the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.”[14] Lastly, it must accurately support its claim for damages, seeing that the act allows for recovery of profits derived from unauthorized use.[15] Muhammad Ali Enterprises is doing this by asserting that the $30 million it seeks in relief is what Fox would normally charge another advertiser in that same slot.[16] The company should not only be able to prove Fox used Ali’s image, but Fox used Ali’s image for the purpose of promoting its  Super Bowl commercial.[17] However, there will be difficulty in trying to calculate the proper amount of damages.[18]

In the false endorsement claim, the company will need to prove that Fox used Ali’s intellectual property in commerce, made a false or misleading representation of fact, in connection with goods or services and that is likely to cause consumer confusion as to the sponsorship or approval of the goods or services in question. Muhammad Ali Enterprises’ Attorney Frederick J. Sterling, who filed the complaint, argues that “Fox obtained great value by using Muhammad Ali to promote itself and it should pay for what it took by falsely implying that Ali endorsed Fox.”[19] Take a look at the video below, and decide for yourself: https://www.youtube.com/watch?v=rURPF8C3GyY#action=share.

[1] Darren Heitner, Muhammed Ali Enterprises Sues Fox For $30 Million, Forbes https://www.forbes.com/sites/darrenheitner/2017/10/11/muhammad-ali-enterprises-sues-fox-for-30-million/#67ab04a2654c (Oct. 11, 2017, 7:30 AM).

[2] Diana Novak Jones, Muhammad Ali TM Owner Sues Fox Over Super Bowl Video, Law360 https://www.law360.com/articles/972811/muhammad-ali-tm-owner-sues-fox-over-super-bowl-video (Oct. 10, 2017, 1:23 PM).

[3] Id.

[4] Id.

[5] Darren Heitner, Muhammed Ali Enterprises Sues Fox For $30 Million, Forbes https://www.forbes.com/sites/darrenheitner/2017/10/11/muhammad-ali-enterprises-sues-fox-for-30-million/#67ab04a2654c (Oct. 11, 2017, 7:30 AM).

[6] Complaint at 6, Ali v. Fox Broadcasting Co., 1:17-cv-07273 (N. D. Ill. Oct. 12, 2017).

[7] Charlotte Carroll, Muhammad Ali Enterprises Sues Fox $30 Million Over Super Bowl Ad, Sports Illustrated  https://www.si.com/nfl/2017/10/10/fox-lawsuit-muhammad-ali-super-bowl-advertisment (Oct. 10, 2017).

[8] Diana Novak Jones, Muhammad Ali TM Owner Sues Fox Over Super Bowl Video, https://www.law360.com/articles/972811/muhammad-ali-tm-owner-sues-fox-over-super-bowl-video (Oct. 10, 2017, 1:23 PM).

[9] Id.

[10] Charlotte Carroll, Muhammad Ali Enterprises Sues Fox $30 Million Over Super Bowl Ad, Sports Illustrated https://www.si.com/nfl/2017/10/10/fox-lawsuit-muhammad-ali-super-bowl-advertisment (Oct. 10, 2017).

[11] 765 Ill. Comp. Stat. Ann. 1075/1 et seq. (1999).

[12] Darren Heitner, Muhammad Ali Enterprises Sues Fox For $30 Million, Forbes https://www.forbes.com/sites/darrenheitner/2017/10/11/muhammad-ali-enterprises-sues-fox-for-30-million/#67ab04a2654c (Oct. 11, 2017, 7:30 AM).

[13]  765 Ill. Comp. Stat. Ann. 1075/1 et seq. (1999).

[14] Id.

[15] Darren Heitner, Muhammed Ali Enterprises Sues Fox For $30 Million, Forbes https://www.forbes.com/sites/darrenheitner/2017/10/11/muhammad-ali-enterprises-sues-fox-for-30-million/#67ab04a2654c (Oct. 11, 2017, 7:30 AM).

[16] Id.

[17] Id.

[18] Id.

[19] Don Babwin, Muhammad Ali Enterprises Files $30M Lawsuit Against Fox, https://www.thestar.com/news/world/2017/10/10/muhammad-ali-enterprises-files-30m-lawsuit-against-fox.html (Oct. 10, 2017).

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