United States Third Circuit

In a suit by the estate of a broadcaster claiming that defendant's use of the broadcaster's voice in a program about the video game "Madden NFL 06" constituted false endorsement and unauthorized use of name or likeness, summary judgment for plaintiff is affirmed in part and vacated in part where: 1) the program was commercial speech made to promote the game, and no First Amendment defense applied; 2) evaluating false-endorsement claims under the Lanham Act required the use of a factors test to determine the likelihood of confusion; 3) a standard-release contract between plaintiff and defendant regarding the use of voice recordings was not a complete bar to plaintiff's claim; 4) there were triable issues of fact on the false-endorsement claim as to whether there was a likelihood of confusion; and 5) federal copyright law did not expressly or impliedly preempt plaintiff's state-law right-of-publicity claim.

Appellate Information

• Argued 06/06/2008
• Decided 09/09/2008
• Published 09/09/2008

Judges

• Before:  AMBRO, CHAGARES and COWEN, Circuit Judges.

Court

• United States Third Circuit

Counsel

• For Appellant:
  
• Bruce P. Keller, Esquire (Argued), S. Zev Parnass, Esquire, Debevoise & Plimpton, New York, NY, Robert N. Spinelli, Esquire, Catherine N. Jasons, Esquire, Kelley Jasons McGowan Spinelli & Hanna, Philadelphia, PA, for Appellants.


• For Appellees:
  
• Tracy P. Hunt, Esquire, Newtown, PA, Paul L. Lauricella, Esquire (Argued), The Beasley Firm, Philadelphia, PA, for Appellee.