When does a television program cease to be a documentary, and instead become an infomercial hawking a product? This question will likely be posed to a jury following the recent Third Circuit opinion in the case of Facenda v. N.F.L. Films, Inc. On September 9, 2008, the Third Circuit unanimously ruled that NFL Films violated Pennsylvania’s “right of publicity” statute by using the voice of sports announcer John Facenda in a twenty-two minute program entitled “The Making of Madden NFL 06.” On a separate claim arising under the federal Lanham Act, however, the panel remanded the case to the district court for a jury to determine whether viewers of the program were likely to interpret the use of Facenda’s voice as an endorsement of the Madden 06 video game.

The NFL claims its program The Making of Madden NFL 06 was a documentary, rather than a commercial endorsement.

The NFL claims its program "The Making of Madden NFL 06" was a documentary, rather than a commercial endorsement.

This legal battle between the NFL and the estate of John Facenda stems from a mere thirteen seconds of the program that features Facenda’s distinct voice. A legendary broadcaster in Philadelphia, John Facenda narrated several NFL Films productions, including “The Autumn Wind,” and was known by many football fans as the “Voice of God.” Prior to his death in 1984, Facenda signed a standard release contract that allowed NFL Films to use his voice in future programs, provided that such use would not endorse any product.

NFL Films argued that “The Making of Madden NFL 06” was a documentary, and should be afforded First Amendment protection as a product of artistic expression. Facenda’s estate, however, asserted that the program was simply an infomercial for the Madden 06 video game. One of the most popular video game series in history, the Madden games have been a significant source of revenue for the NFL. While the NFL certainly has the right to use Facenda’s voice in its programs, it seems to be limited by the trademark of Facenda’s estate as well as the release contract’s prohibition of any use that endorses a product.

The author of the Third Circuit’s opinion, Judge Thomas L. Ambro, agreed with Facenda’s estate:

“Like an infomercial, the program focuses on one product, explaining both how it works and the source of its innovations, all in a positive tone . . . [it] was only broadcast eight times in a three-day span immediately before the release of the video game to retail stores . . . .”

Judge Ambro rejected the argument that the program was protected as an artistic expression under the First Amendment, but nevertheless concluded that a violation of the federal Lanham Act was a factual issue for the jury.

There is little doubt that NFL Films wanted to provide media exposure that would “promote” the release of Madden 06, but did its program cross the line and “constitute an endorsement” of the game? It remains to be seen if jurors will deem thirteen seconds of a twenty-two minute program sufficient for a Lanham Act violation. But the fact that the issue is being litigated could have important implications for television networks seeking to promote secondary products in the future. The nature of advertising is changing– some have suggested that the traditional 30-second commercial may soon be extinct— and the rise of digital video recorders has shifted the focus to other forms of advertising such as product placement. Issues like the one on remand will affect the direction that advertising takes as it continues to evolve.

What qualifies as an endorsement? Must a television program include some critical element or negative tone to be classified as a documentary? To be sure, “The Making of Madden NFL 06” went beyond mere product placement, and put a twenty-two minute spotlight on a video game in which the NFL has a direct financial interest. On the other hand, the key issue concerns the likelihood that viewers perceive an implied endorsement by Facenda (or his estate), and his voice was only featured in thirteen seconds of the program. There seems to be no simple answer to this problem. The fact-dependent nature of “what constitutes an endorsement” could potentially spawn a substantial amount of litigation in the future.

Ethan Flatt

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