Seventh Circuit affirms dismissal of Calvin McMillan's copyright suit over Packers song phrases on Wisconsin lottery tickets

What the court decided

A Seventh Circuit panel of Judges Kirsch, Maldonado, and Taibleson decided McMillan v. National Football League, No. 26-1957, on October 28, 2026, without oral argument, in a nonprecedential disposition to be cited only in accordance with Fed. R. App. P. 32.1. The appeal came from the Eastern District of Wisconsin, No. 26-CV-594, Judge Byron B. Conway. The order notes that the appellees, the National Football League and the Wisconsin Department of Revenue, were not served with process and did not participate in the appeal. The court affirmed. (Order 1 to 3.)

The claim, as the order describes it

According to the order, McMillan wrote two songs about the Green Bay Packers, "Pack Attack" (which he also called "The Pack Is Back, It's a Pack Attack") and "Go Pack Go" (which he also called "The Funky Packers"). He alleged that the NFL, which had licensed the Packers' logo to the Wisconsin Department of Revenue for use in a lottery, used his lyrics without authorization when lottery tickets adopted phrases that matched his lyrics, including "Pack Attack" and "Go Pack Go." (Order 2.)

The district court screened the complaint under 28 U.S.C. 1915(e)(2)(B)(ii) and dismissed it for failure to state a claim. The order says the district court questioned whether McMillan had registered his works with the Copyright Office, a prerequisite to a federal copyright suit under 17 U.S.C. 411(a), but determined that short phrases and slogans such as "Pack Is Back," "Go Pack Go," and "Pack Attack" are not copyrightable. McMillan also alleged Sherman Act violations, which the district court found did not state a plausible claim and which he did not pursue on appeal. (Order 2.)

The court's reasoning

The court applied the two elements of an infringement claim from Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991): ownership of a valid copyright and copying of constituent elements of the work that are original. It rejected McMillan's argument that the district court should have consulted the Copyright Office's records to verify registration, saying it was his burden to prove registration of a valid copyright for each work under 17 U.S.C. 411(a) and that he had submitted no such evidence. (Order 2 to 3.)

Even if the works were registered, the court said, registration would not make the phrases copyrightable, citing UIRC-GSA Holdings, LLC v. William Blair & Co., 90 F.4th 908 (7th Cir. 2024). McMillan argued that the district court erred by considering the phrases in isolation rather than as integral parts of his musical compositions. The court answered that his infringement claim rests on the alleged copying of those precise phrases, and that the phrases themselves, which it described as brief, slogan-like combinations of ordinary words, are excluded from copyright protection under 37 CFR 202.1(a). Even evaluated as song lyrics, the court said, they would lack the originality required for protection, citing Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140 (2d Cir. 1998). (Order 3.)