The estate of John Facenda, the "Voice of God" of highlight-reel narration famously misquoted as calling Lambeau Field "frozen tundra," has won yet another appellate victory against NFL Films for its unauthorized use of his voice in a promotional video for Electronic Arts' Madden football franchise.
It would help if right now you read the remainder of this post in Facenda's authoritative baritone, full of gratuitous enunciation and inflection, and pauses that begin, unstressed, before rolling to a conclusion that still remains exciting -- even if bereft ... of all suspense.
Facenda died in 1984, but his dulcet tones lived on in a promotional spot for Madden 2006, put there on the authority of the (wait for it, wait for it) National Football League. Now the most powerful sports league in North America finds itself winless against a dead man, writing a check for its mistakes payable to the order of his descendants. Three officials' review of the circumstances produced the unanimous opinion that the NFL's use of Facenda's voice did not constitute purely commercial speech, and was instead an appropriation of his likeness beyond what had been authorised in Facenda's contract with the league.
OK, I can't keep it up anymore. Facenda did not prevail on a judgment that the use of his voice created a confusion over whether or not his estate endorsed the game. Instead of a judge deciding the question summarily, a jury should have heard it, the court found. But the larger First Amendment question raised by the NFL was more important, and now the case moves back to trial to determine how much Facenda's heirs get paid.
Oh, and I love this quote from the Facenda attorney. I think the voice of God would be quite proud:
In an interview, [Paul A.]Lauricella said he was pleased with the court's decision and that the next step will be to proceed to discovery on the issue of damages and a jury trial.
"It's fourth and long for the NFL," Lauricella said, "and the clock is running out."