The NFL’s Worst Nightmare: Bringing the Concussion Controversy to the Big Screen
Photo credit: https://www.flickr.com/photos/ajguel/
By Janet Akinola*
“You’ve turned on the lights and given their biggest bogeyman a name.”[1]
Sony Pictures Entertainment’s recently released trailer for the movie Concussion, due in theaters in December, has sparked some controversy.[2] Concussion is based on the true story of forensic pathologist Dr. Bennet Omalu’s discovery of a link between football and head trauma in players, as well as the NFL’s reaction to this discovery.[3] Dr. Omalu gave a name to a degenerative brain disease found in NFL players, chronic traumatic encephalopathy (CTE), which he first diagnosed in former Pittsburgh Steelers center Chris Webster.[4] The movie focuses primarily on the NFL’s seeming willful blindness to the issues that Dr. Omalu presented to them, painting the NFL in a negative light. Although Dr. Omalu’s story was not unknown before the production of this film, there is no doubt that Concussion will highlight the continuing concussion controversy – to the NFL’s sorrow.[5]
The Concussion Controversy
The NFL concussion controversy surrounds a class action lawsuit, brought by retired players, their representatives and family members, against the NFL for the concussion related health issues that develop as a result of playing football.[6] Federal Judge Anita Brody of the Eastern District of Pennsylvania recently approved the settlement agreement.[7] The settlement agreement proposes to provide former players with baseline medical expenses, such as neurological exams, monetary compensation for those diagnosed with a degenerative disease, and educational programs.[8] The settlement agreement approval means the NFL “may never have to disclose what it knew when about the risks and treatment of concussions.”[9] With such a benefit, it is not hard to imagine why the NFL would be frustrated with the information they have tried so hard to protect being disclosed on the big screen.
The main controversy surrounding the movie is the NFL’s role in changing the script.[10] Some critics maintain that the NFL pressured Sony Pictures into changing the direction of the movie with legal threats.[11] The basis for these accusations came with the practical necessity of film verisimilitude: “[t]he problem was Sony Pictures did not have the rights to use NFL team logos, press room footage or any other NFL copyrighted properties.”[12] On the other hand, other camps believe that Sony Pictures made the changes to the script in order not to “kick[] the hornet’s nest.”[13]
The NFL is not new to pressuring change in areas that make the league look less flattering by taking advantage of its extensive influence.[14] In 2004, ESPN cancelled its original drama series “Playmakers,” which followed a fictional professional football team, the Cougars, through the journey of the player’s less-than-perfect private lives and extensive health issues faced by an unnamed league.[15] Again in 2013, the NFL laid down its iron fist causing ESPN to back out of supporting “League of Denial,” a documentary with Frontline intended to expose the league’s response to the concussion controversy.[16] Sony Pictures however does not have major business affiliation with the NFL, which could explain their production of this controversial movie.[17]
The Protection of the Law
Another question facing Sony Pictures is whether the studio was required to make any changes to the film under the law. The executives at Sony Pictures took note of other movies about real events, including “Zero Dark Thirty,” “Moneyball” and “The Social Network,” “all of which were later criticized to varying degrees for veering from accuracy.”[18]
Unraveling the tangled world of intellectual property law can be tricky. The NFL cannot have any copyright infringement claims because they cannot copyright the events of the concussion controversy. In Feist Publications v. Rural Telephone Service Co., the United States Supreme Court makes it clear that facts are not copyrightable.[19] The facts of true-life events can be used as an artist chooses because history cannot be limited to a single person’s use.[20] Even if the events of the controversy were somehow copyrighted, Concussion falls within the fair use exception to copyright infringement which allows “criticism,” “comment,” “news reporting,” “teaching,” “scholarship,” and “research” of copyrightable works.[21]
Courts tend to side with the allowance of artistic expression, because “even without permission, those engaged in noncommercial expression, such as filmmakers, are at liberty to reference, disparage, ridicule, or otherwise use a trademark or trademarked product in their expressive work without undue fear of trademark liability.”[22] Trademark law developed in hopes to prevent confusion regarding “the origin, sponsorship, or approval of their goods by another person” and prevent misrepresentation of the source of the trademarked good or service.[23] The use of NFL trademarks in Concussion will not cause confusion because the NFL is a staple company and the telling of a story that involves the NFL, especially in a negative light, cannot easily be confused with something that the NFL would endorse. In theory, the First Amendment gives filmmakers the right to make a movie about any living person, so long as it doesn’t defame the person or violate his/her privacy rights.[24]
Peter Lansdale, Director of Concussion stated in uncovered emails to the movie’s executives, “[w]e might have gotten away with it legally, but it might have damaged our integrity as filmmakers.” [25] So don’t fret; your “based on a true story” movies are safe within the eyes of the law. However, how true to they story they are is entirely up to the production teams.
* Staff Writer, Jeffrey S. Moorad Sports Law Journal; J.D. Candidate, May 2017, Villanova University School of Law.
[1] Nancy Armour, Armour: Trailer for ‘Concussion’ movie only start of headache for NFL, USA Today Sports (Sept. 1, 2015), http://www.usatoday.com/story/sports/2015/08/31/concussion-movie-bad-nfl–smith-alec-baldwin/71468796/. (quoting a scene from the Concussion movie). This line was said by Alec Baldwin, portraying former Pittsburgh Steelers physician Dr. Julian Bailes, to Will Smith, portraying Dr. Bennett Omalu in the movie
[3] See Ken Belson, Sony Altered ‘Concussion’ Film to Prevent N.F.L. Protests, Emails Show, N.Y. Times (Sept. 1, 2015), http://www.nytimes.com/2015/09/02/sports/football/makers-of-sonys-concussion-film-tried-to-avoid-angering-nfl-emails-show.html?_r=0.
[4] See Amar Toor, Sony Changed Concussion to Avoid Legal Problems With the NFL, The Verge (Sept. 2, 2015, 5:01 AM), http://www.theverge.com/2015/9/2/9243879/sony-concussion-movie-nfl-will-smith-email; see also Armour, supra note 1.
[5] See Armour, supra note 1 (discussing who will see the movie). Some will see the movie because they are avid football fans, while some “do not know the Browns from the Bengals” and will watch because of the star presence in the movie with actors such as Will Smith and Alec Baldwin. See id.
[6] See Maryclaire Dale, Judge Approves Plan To Resolve NFL Concussion Lawsuits; Could Cost League $1 Billion Over 65 Years, Huffington Post (June 22, 2015, 5:59 AM), http://www.huffingtonpost.com/2015/04/22/nfl-concussion-lawsuits_n_7120016.html.
[8] See Welcome to the NFL Concussion Settlement Program Website, NFL Concussion Settlement, https://www.nflconcussionsettlement.com (last visited Sept. 29, 2015).
[10] See NFL Forced Sony to Make Changes to Will Smith’s ‘Concussion’, Project Casting (Sept. 2, 2015), http://www.projectcasting.com/news/concussion-nfl/ (discussing reports of NFL intimidating Sony Pictures into changing script for movie).
[11] See id. (discussing reasons for change of movie script).
[13] See Mark Sandritter, Sony changed aspects of ‘Concussion’ to avoid ‘kicking the hornet’s nest’ of the NFL, SB Nation (Sept. 2, 2015, 6:55 PM), http://www.sbnation.com/nfl/2015/9/1/9242627/concussion-movie-sony-leaks-nfl-will-smith.
[14] See Belson, supra note 3 (“The N.F.L. had previously pressured business partners to step back from issues that are potentially embarrassing to it.”).
[15] See Larry Stewart, ‘Playmakers’ Is Sacked by ESPN, LA Times (Feb. 5, 2004), http://articles.latimes.com/2004/feb/05/sports/sp-espn5.
[17] See Toor, supra note 4 (“Unlike other Hollywood studios, Sony Pictures has no major business ties to the NFL . . .”).
[18] See Belson, supra note 3 (describing leaked July 2014 e-mails from Sony executive).
[19] See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344 (1991).
[20] Cf. id. at 350-51 (“[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work—termed ‘expression’—that display the stamp of the author’s originally.” (quoting Harper & Row Publ’rs, Inc. v. Nation Enterprises, 471 U.S. 539, 547-48 (1985)).
[21] See 17 USC § 107 (prescribing “fair use” limitations on exclusive rights under United States copyright law).
[22] See Pratheepan Gulasekaram, Policing The Border Between Trademarks and Free Speech: Protecting Unauthorized Trademark Use in Expressive Works, 80 Wash. L. Rev. 887, 888 (2005) (citing Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 428 (2003)).
[23] See See id. at 895 (“As a subset of unfair competition laws in general, the Lanham Act provides causes of action against persons who (1) use trademarks in a manner that is likely to cause confusion as to the origin, sponsorship, or approval of their goods by another person or (2) misrepresent the source of the trademarked product or service in commercial advertising.” (footnote omitted)).
[24] Cf. N.Y. Times v. Sullivan, 376 U.S. 254 (1964) (holding that First Amendment bars damages for defamatory falsehood relating to public official’s official conduct absent proof that statement was made with “actual malice”).
