Legal Dispute Brewing For Detroit Lions’ Barry Sanders In Image Rights Case
Former Detroit Lions running back and NFL Hall of Famer Barry Sanders recently threatened legal action against Eastern Market Brewing Co. over the unlicensed use of his likeness on a beer poking fun at his former team. In response, Eastern Market pulled the beer a day after its launch, removing it from the brewing company’s website and social media platforms. Sanders has indicated he nonetheless intends to pursue legal action.
This dispute was prompted by the brewery launching a beer called “Same Old Lager,” in an apparent reference to the Lions’ long-time struggles on the field. The beer can featured an 8-bit image that appears to be Sanders wearing a Detroit Lions jersey on a football field. The lettering on the packaging of the beer also seems to use the same coloring the Lions do. Sanders took to Twitter to discuss the issue, posting a picture of the beer with the caption:
“Some of you may have seen this in the @freep today - I have no affiliation with this company, and they are using my image without any permission. My legal team is working through the process to shut this down ASAP. Apologies to any fans that were duped.”
The main legal issue at play here is the use of Sanders’ likeness. Specifically, Sanders is alleging Eastern violated his right of publicity by using his image on the beer without his permission. The right of publicity is the right to control the commercial value of your name, likeness, voice, signature, or other personal identifying traits that are unique to you. In most states, celebrities can hold someone liable for violating the right of publicity through use of their likeness if they can establish (1) the use of a protected attribute, (2) the use was for a commercial purpose, (3) they did not consent to the use, and (4) they suffered injury.
The outcomes of celebrity lawsuits alleging violations of the right of publicity have varied. In one well-known case, ETW Corp. v. Jireh Publishing, Inc., Tiger Woods’ licensing agent sued an artist for selling a painting prominently featuring Tiger Woods. An Ohio federal court held the print conveyed a unique expression and message protected by the First Amendment. The case was dismissed.
In contrast, in Sanders’ case—if he chooses to file one—it would be much more difficult for Eastern Market Brewing Co. to argue the product conveys a unique message. Sanders would no doubt argue his image was used for the sole purpose of selling beer. However, unless Eastern Market Brewing Co. were to reverse course and continue selling the “Same Old Lager” beer, the case may become about what, if any, damages Sanders suffered. Instead of resuming sales of this beer with the same packaging, perhaps the brewery will shift the 8-bit image away from the likeness of Sanders in favor of a more generic image.
