Shot Blocked: Copyright Preemption of Right of Publicity Claims

By Ms. Sarah Reis posted 04-21-2017 21:45


The Ninth Circuit recently ruled that federal copyright law preempted the right-of-publicity state law claims brought by two former NCAA Division III basketball players in Maloney v. T3Media, Inc.

T3Media contracts with the NCAA to store, host, and license images in the NCAA Photo Library. The plaintiff-appellants, two former student athletes, alleged that T3Media exploited their names and likenesses by selling non-exclusive licenses permitting customers to download photographs from the NCAA Photo Library for non-commercial art use without obtaining their consent.

The statutory provision in the Copyright Act pertaining to preemption is 17 U.S.C. § 301, which involves a two-step test. The court found that (1) the subject matter of the state law claim fell within the subject matter of copyright (as described in § 102 and § 103); and (2) the rights asserted under state law were equivalent to the rights within the general scope of copyright (contained in § 106).

In affirming the district court's opinion, the court stated, “[W]e conclude that a publicity-right claim is not preempted when it targets non-consensual use of one’s name or likeness on merchandise or in advertising. But when a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use, a publicity-right claim interferes with the exclusive rights of the copyright holder, and is preempted by section 301 of the Copyright Act.”