In 2015, Weil obtained two significant victories for CBS and its affiliates that will redefine the contours of publicity and privacy law in the United States involving the use of student-athlete names, images, and likenesses in the media.
In June 2015, Weil persuaded a Tennessee federal court to dismiss with prejudice a putative nationwide class action (Marshall) brought by NCAA Division I student-athletes alleging that CBS, among other networks, college athletic conferences, and licensors, profited from the broadcast and use of student-athletes’ names, images, and likenesses without permission, violating Tennessee’s right of publicity statute and federal antitrust laws. In a landmark decision and judgment on CBS and the other defendants’ motions to dismiss, the court dismissed Plaintiffs’ complaint in its entirety, with prejudice. Among other things, the court ruled that there was no right of publicity for participants in sporting events, and with respect to Plaintiffs’ antitrust claims, the court rejected Plaintiffs’ claim that the broadcast contracts that purportedly transfer student-athletes’ names, images, and likenesses are the unreasonable restraint of trade, and rejected Plaintiffs’ allegations of antitrust injury or reduced competition. The dismissal was affirmed by the Sixth Circuit in August 2016.
In August 2015, a California federal court granted Weil’s motion for summary judgment on behalf of CBS Interactive Inc. (CBSI) in another landmark right of publicity case (Lightbourne) that dismissed all of plaintiff’s claims. The plaintiff in this action alleged that CBSI had used student-athletes’ names, images, and likenesses, without their consent, in connection with its provision of services to NCAA member institutions’ sale of photographs of student-athletes through the schools’ official athletic websites. The plaintiff had asked for a nationwide class of potentially over a million current and former student-athletes and was seeking hundreds of millions of dollars in minimum statutory damages under California’s right of publicity statute. The summary judgment ruling followed the court’s July 30, 2015 denial of the plaintiff’s motion for class certification, in which the Court, among other things, rejected Plaintiff’s attempt to apply California law to a nationwide class in this case, concluding that there were material differences in states’ right of publicity laws, and that other states’ interests in applying their own right of publicity laws outweighed California’s interest. The Court also found that the need to then apply various states’ right of publicity laws to class members’ claims also weighed against a finding of predominance.
Weil also successfully represented ESPN in a second and different matter obtaining a near-complete defense jury verdict following trial of more than $150 million in claims brought by Dish Network challenging certain provisions of distribution agreements ESPN had negotiated with Dish and several of Dish’s competitors.
Following nearly four years of pretrial proceedings in state and federal courts in Illinois and in federal court in New York, an Illinois court granted summary judgment for our client in full, permanently enjoining ISE from listing or providing an exchange market for the trading of S&P 500 and DJIA options and OCC from facilitating such trading. The court also rejected ISE’s argument that the Copyright Act preempted the state law claims. The Illinois Appellate Court affirmed the summary judgment and the argument behind it, and the Illinois Supreme Court denied ISE’s petition for leave to appeal. In May 2013, the U.S. Supreme Court declined ISE’s petition for a writ of certiorari.
Seeking to re-litigate the issues and asserting that the final judgment in Illinois is void for lack of subject matter jurisdiction, ISE filed a motion in the Southern District of New York for leave to amend its declaratory judgment complaint against SPDJI and to add new parties. SPDJI cross-moved to dismiss the declaratory judgment action as barred by res judicata, among other grounds. On December 18, 2013, the district court granted SPDJI’s motion to dismiss and denied ISE’s motion for leave to amend its complaint and to add new parties. ISE did not appeal the dismissal.
- Copyright Royalty Board Trial: We achieved a trial victory for Sirius XM against SoundExchange in connection with satellite radio royalty rates for the public performance of sound recordings for the 2013-2017 license period. The determination of rates saved Sirius XM approximately $1.8 billion in royalty payments over the license term.
- Antitrust Litigation: We represent Sirius XM in an antitrust action filed against SoundExchange and other recording industry organizations, alleging an industry-wide conspiracy to interfere with Sirius XM's attempts to license directly with record companies.