NFL Not Entitled to 'Voice of God' in Promotional Film

The estate of legendary sports announcer John Facenda, known in football circles as the "Voice of God," scored a major victory in its court battle with NFL Films last week when a federal magistrate judge ruled that use of Facenda's distinctive voice in a promotional film for a video game had violated state and federal laws.

In his 39-page opinion in Facenda v. NFL Films Inc., U.S. Magistrate Judge Jacob P. Hart rejected the NFL Films' argument that Facenda's suit failed due to a release he signed in 1984.

Instead, Hart said the release included a clause that bars NFL Films from using Facenda's voice in any way that would constitute the "endorsement" of a product or service.

As a result, Hart said, the case hinged on whether the film, titled "The Making of Madden," was a documentary, as NFL Films' claimed, or a promotional tool for the video game "Madden NFL 06."

Hart concluded that the film was no documentary because NFL Films had a "direct financial interest" in the success of the video game.As a result, Hart said, the film "lacks the journalistic independence typical of the maker of a documentary."

Hart then concluded that Facenda's estate is entitled to summary judgment on the issue of liability for two of its claims, alleging violation of the federal Lanham Act and a Pennsylvania law barring "unauthorized use of name or likeness."

As a result, the only issues left to be decided on those claims are the amount of damages owed to Facenda's estate.

The ruling is a victory for attorney Paul A. Lauricella of The Beasley Firm, who filed the suit on behalf of Facenda's son.

Facenda's "day job" was news anchor at Philadelphia's WCAU-TV from 1952 to '73, preceded by a long stint at WIP radio.

John Facenda Jr. filed the suit after hearing snippets of his father's work on an NFL Network program about the making of the 2006 John Madden video game. The 22-minute program includes three lines from Facenda that last a combined 13 seconds.

A lawyer for NFL Films, Bruce P. Keller of Debevoise & Plimpton in New York, argued that the case should be dismissed under the doctrine of "incidental use" because the clips of Facenda's voice in the film were minimal.

Hart disagreed, finding that Facenda's voice played a "significant role" in the purpose of the film. "Although Facenda's appearance was brief, it added some commercial value to 'The Making of Madden,'" Hart wrote.