Sure, in the sense that you can sue anyone for anything, no more how frivolous and legally unsupported, and it’ll make it at least a tiny way through the legal system before it lands in front of someone with the authority to throw it out. But I figured that was trivially obvious, and didn’t warrant a special disclaimer.
That’s not quite what I was getting at; you can sue in civil court without anyone having broken any laws- it’s about damages and redress, not the breaking of laws.
You would almost certainly not win, and you’d probably get your case thrown out of court, but you could sue for it.
Typical caveats about limited research, not legal advice, and the law changes greatly depending on the location.
I’m unsure what the OP is looking for, but here’s some very general information:
California has a “right to publicity” law that “prohibit[s] any other person from using a celebrity’s name, voice, signature, photograph, or likeness for commercial purposes without the [celebrity’s] consent.” That law was upheld against a First Amendment challenge in Zacchini v. Scripps–Howard Broadcasting Co. The Court found that the 1st Amendment rights of the TV show that broadcast Mr. Zacchini’s complete human cannonball act were outweighed by Mr. Zacchini’s right to the economic value of his performances. The courts also have consistently held that " speech which either appropriates the economic value of a performance or persona or seeks to capitalize off a celebrity’s image in commercial advertisements is unprotected by the First Amendment against a California right-of-publicity claim."
However, in non-commercial cases (such as movies) the moviemakers have a 1st Amendment right to create their “art” that will defeat a right to publicity claim. One example is The Hurt Locker. The soldier the book/movie was based on sued because they did not have his permission (and it damaged is reputation). The court found that the moviemakers’ right to free speech outweighed the soldier’s right to publicity.
“The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays. If California’s right of publicity law applies in this case, it is simply a content-based speech restriction. As such, it is presumptively unconstitutional, and cannot stand unless Sarver can show a compelling state interest in preventing the defendants’ speech. Because Sarver cannot do so, applying California’s right of publicity in this case would violate the First Amendment.”
There are, of course, other concerns (who the fuck would go see a Billy Joel pic that didn’t have any Billy Joel’s music in it? There are libel/defamation concerns also) that stop unauthorized biopics from being made. The 1st Amendment isn’t a defense to a movie that loses money.
I’m just not sure how far the OP expects the First Amendment to be an absolute right.
For instance, OP, someone takes your picture without your knowledge or permission, and then puts up a billboard with it, claiming that you are endorsing a brand of ice cream as your favorite (and it’s not.)
Do you think that you should have some legal remedy there?
I’m not sure it’s even that much of an overreach - I think the full statement is “This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited,”
It doesn’t seem to be even trying to prohibit anyone else from commenting on the game - it appears they are trying to prohibit the use of the commentary that appears on their telecast. That’s not the same thing as trying to prevent sports reporter or columnists from saying anything about the game.
I think there’s a bit of overreach as they can’t prohibit all use of their own commentary - there’s fair use and I think a TV station or newspaper can absolutely quote commentary. In fact I’m 100% certain I’ve seen it when controversial remarks were made. But the NFL is not the only entity that ignores fair use in copyright statements - some books basically say nobody can reproduce or quote anything without written permission.
The part that says “[…] descriptions, or accounts of the game” seems pretty unambiguously to go too far, to me. Certainly I don’t need their consent to describe what happened when the Dolphins played the Jaguars in 1999 or anything.
You very likely can describe it, in your own words, without running afoul of that disclaimer. What it’s saying, IMO, is that you can’t use the description that was created by the telecast’s announcers.
Unless the consequences in questions are direct sanctions from the government (either criminal or civil), in which case they are absolutely impinging on freedom of speech.
It seems pretty plain on its face to me. I don’t know what other function the OR in the sentence could have–you can’t use the telecast OR accounts or descriptions of the game, that are also the telecast?
Since the government didn’t initiate the civil action, but just provides the framework to enforce it, this doesn’t apply.
One possible way to read it is, “You can’t just play the telecast, you can’t play the telecast with the volume turned off and only the pictures present, you can’t play the audio with no pictures, you can’t sit there with a full script of what was said in the telecast and read it out loud.” Possibly, the NFL intends it to mean, “You can’t tell anyone what happened in the game without paying us, not even the score or who won,” but if so, that’s clearly not legally enforceable, which I’ll cite by pointing to the existence of sports journalism as a viable industry.
The government also can’t set up a framework that allows private citizens to prevent other private citizens from exercising their First Amendment rights by threatening government coercion.
Again, look at the Larry Flynt case. The government didn’t initiate the civil action, Jerry Falwell did. But the court still found that Falwell’s case could not prevail, because Flynt’s publication was protected by the First Amendment.
But only insofar as no reasonable person would be confused about the truthfulness of the publication’s claim.
There’s what’s legally enforceable, and then there’s what they are attempting to get away with. The NFL has higher paid and better attorneys than me; if they wanted their warnings to be clear their warnings would be clear.
Instead, they make extremely broad claims to implied copyright and then bully people over them.
See how they DMCA’d a video of their copyright disclaimer and got it taken down.
Or see the FTC complaint filed against them and various leagues and organizations over the same issues.
There’s no question that there’s a common sense limit to what they’re entitled to protect. But they are willing to take people on for much more than that, and I think they want people to be afraid of doing things well past their actual right to limit it.
That doesn’t have anything to do with the thing that people keep arguing over, though. The fact is, what happens in a civil trial has First Amendment significance and is subject to First Amendment protections. It’s government action.
Yes, I think everyone in the thread is familiar with the concepts of limits to free speech rights, such as libel, false advertising, threats, etc, and it’s probably not necessary to point these exceptions out every fifth post.
Yeah, good point. The enforcement mechanisms around copyright protections are incredibly broken right now, especially with digital and web content. But when you have two entities with similar clout to throw around (NFL versus, say, ESPN) you can see what the law actually says, and not what outcomes you can buy with sufficient resources.
True enough, but I thought that what we were arguing about is How is stopping someone making a film about very famous public figure not a 1A violation?
The OP makes a magnificent leap from biopics about Cobain and Joel to government oppression.
I would assume that those biopics are not obvious satire or parody, so Hustler v Falwell would not apply.
The point of bringing up Hustler v. Falwell was to demonstrate that, even in suits between two non-governmental entities, the state still has to pay attention to First Amendment concerns when rendering it’s verdict. The specific grounds under which the court reached that conclusion (in this case, clear satire) isn’t relevant here - I’m just demonstrating that First Amendment protections are still considered by the government even in civil cases initiated by a private citizen against another private citizen.
Saying “absolutely” eleven times in a row certainly makes your argument more convincing.
Fair enough. In short, everybody has rights, and it is the court’s job to weigh those rights against each other to arrive at an equitable solution.
Well just using it once didn’t work 
As every time I pointed out that civil sanctions by the government are absolutely covered by the 1st amendment, just as criminal sanctions are, someone popped up to tell me that I’m using “absolutely” wrong, and they aren’t.