“Voice of God” is the voice of the law

Posted by Gwyddia on September 14, 2008

The family of the late John Facenda, the NFL’s “voice of God”, has won another legal battle against EA and their Madden franchise. Facenda’s voice was featured in an advertisement for Madden ‘06, with the stated permission of the NFL. The Facenda family sued NFL Films, arguing that Facenda’s voice was so unique that any use of it for commercial purposes would create confusion about whether the Facendas endorsed the product.

A unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals* ruled Tuesday, September 9 that NFL Films violated Pennsylvania’s “right of publicity” statute. Further, the Court ruled that Facenda’s NFL “standard release” contract pertains only to his work calling NFL games, not to other uses of his voice or likeness. The Court also brushed aside NFL Films’ claims that the company’s use of Facenda’s voice is protected by the First Amendment. In his 60-page opinion, 3rd Circuit Judge Thomas L. Ambro writes that “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 wasn’t a total loss for EA, however. The Court did find the question of whether NFL Films had also violated the federal Lanham Act is a jury question due to the factual nature of the claims of confusion. That being said, the only issue left on the Pennsylvania statue side is the damages award.

The full text of the precedential opinion, styled Facenda v. NFL Films Inc., may be found here.

*My home Circuit, in which I am proud to practice.

Popularity: 4% [?]