Copyright Preempts Right of Publicity, 9th Circuit Rules

A federal appeals court ruled that federal copyright law preempts state-based publicity rights, rejecting claims by former student athletes over photos downloaded from the National Collegiate Athletic Association.

The U.S. Ninth Circuit Court of Appeals said the Copyright Act protects the photographers' copyrights, which cannot be trumped by state laws protecting people who are photographed. In Maloney v. T3Media, the appeals court said the plaintiffs sought to "control the artistic work itself" by suing the distributor over copyrighted images.

"Because plaintiffs seek to hold T3Media liable for exercising rights governed exclusively by copyright law, the claims are preempted by section 301 of the Copyright Act," Judge Milan D. Smith, Jr. wrote for the unanimous court.

NCAA Photo Library

Patrick Maloney and Tim Judge played basketball for Catholic University between 1997 and 2001. In their final year, they helped their team win a national title, and the drama was captured in photos that were placed in the NCAA photo library.

Maloney and Judge sued T3Media, which contracted with the NCAA to distribute the photos, for allowing consumers to download them from the photo library. They claimed statutory and common law rights to publicity and unfair competition.

The media company responded with a special motion to strike, arguing that the plaintiffs were not likely to prevail on the merits. The trial judge agreed, concluding that the Copyright Act preempted the plaintiffs' claims.

Likeness, Not Copyright

On appeal, the Ninth Circuit upheld the trial judge. The appellate court said the question of preemption is answered by whether the subject matter is within copyright law and whether the state claims are equivalent to the copyrights.

"We believe that our holding strikes the right balance by permitting athletes to control the use of their names or likenesses on merchandise or in advertising, while permitting photographers, the visual content licensing industry, art print services, the media, and the public, to use these culturally important images for expressive purposes," the court said.

Kathryn Fritz and Michael Davis-Wilson, attorneys with Fenwick & West, said the decision offers a "clearer roadmap" for applying the preemption doctrine in right-of-publicity cases. They said it offers "significant protection" to creators who incorporate real individuals into their work.

"It further made clear that where a right-of-publicity claim seeks effectively to "control the artistic work itself," it interferes with the copyright owner's exclusive rights and will be preempted," they wrote for Mondaq.

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