'Voice of God' heir battles NFL Films over Madden program

June 6, 2008 6:22:53 PM PDT
The son of legendary football announcer John Facenda appears headed to trial over NFL Films' use of his father's voice on a program about a John Madden video game. A federal appeals court heard arguments Friday and strongly hinted that a jury should decide whether the 22-minute film was a commercial or a documentary - or perhaps, as one judge suggested, "a documercial."

Facenda's son is challenging the use of 13 seconds of his father's baritone voice on an NFL Network program about the making of the 2006 Madden game.

Mount Laurel, N.J.-based NFL Films holds the copyright to the clips. But Facenda signed a contract shortly before his 1984 death that banned the use of his thundering baritone - sometimes dubbed "the voice of God" - for product endorsements.

"I put it on last night, and I have to tell you I thought it was hawking a product," U.S. Circuit Judge Thomas Ambro said.

Judge Robert E. Cowen, another member of the three-judge panel, called it a close call.

"Why isn't it a question for a jury?" he asked.

The NFL, hoping to have the suit thrown out before trial, is appealing a lower-court ruling that allowed the suit to go forward.

Intellectual property lawyer Bruce Keller, representing the NFL and NFL Films, argued two legal theories: that federal copyright law trumps state contract law, and that the "artistic" work is protected under the First Amendment.

The judges did not indicate when they would rule. The program aired on the NFL Network nine times in the days leading up to the August 2006 release of the popular Madden game. The game was not directly offered for sale during the program.

However, "it alerts the average 14-year-old that the game will be in stores before September," said lawyer Paul Lauricella, who represents Facenda's only child.

John "Jack" Facenda Jr., 69, of White Haven, Pa., previously settled a lawsuit against the Campbell Soup Co. for using a Facenda-soundalike in radio and television ads.

Traces of his father's voice can be heard in the one-time Peace Corps volunteer, a longtime government poverty worker now retired on a Northeast Pennsylvania farm.

The elder Facenda was a broadcasting icon in the Philadelphia area after a career in radio and TV that spanned from the 1930s to the early 1970s. He frequently pitched products on air, as broadcasters of his era did, Jack Facenda said. Contracts frequently consisted of a handshake, he said.

"His interest is that nobody manhandles his father's voice, whether it's the NFL or anybody else," Lauricella said.


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