PHILADELPHIA — Legendary football-film announcer John Facenda's son can pursue a lawsuit against NFL Films over the use of Facenda's voice in a show about the John Madden video game, a federal appeals court has ruled.
Facenda's contract barred the use of his distinctive baritone for product endorsements.
The NFL argued that the 22-minute show on the making of the 2006 Madden game — which aired eight times on the NFL Network just before the game's release — was an artistic endeavor protected by the First Amendment.
But the 3rd U.S. Circuit Court of Appeals, in a 60-page ruling, called the program a clearly commercial work akin to an infomercial.
The case now appears headed for trial.
"It's now fourth and long and the clock is running out on the NFL," said lawyer Paul Lauricella, who represents John "Jack" Facenda Jr., a retired poverty-program worker who lives on a farm in northeastern Pennsylvania.
The son has fiercely protected his father's wishes, and settled a similar suit against the Campbell's Soup Co., which used a Facenda-sound-alike in radio and television ads.
The 3rd Circuit also rejected the league's argument that its copyright of the Facenda recordings trumps state contract law.
However, in its Sept. 9 opinion Facenda v. NFL Films, Inc., the appeals court granted the NFL a partial victory on the issue, reversing the lower court finding that there was a likelihood of confusion about whether Facenda was endorsing the game and leaving the question for jurors.
The 22-minute program includes three lines from Facenda that last a combined 13 seconds.
The NFL, in a one-sentence statement, said it looked forward to trial.
"We are pleased that the summary judgment was reversed and that we now have an opportunity to present the facts at trial," the NFL said.
Facenda, who died in 1984, was a prominent Philadelphia TV anchorman whose deep tone was dubbed the "voice of God." He was the voice of NFL Films for two decades.