Copyright Act Preempts Any Publicity Rights Of Former NCAA Athletes in Pics Sold Online

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By Tamlin Bason

March 12 — Case law has generally been trending in favor of former student-athletes in right of publicity actions against media and entertainment companies, but on March 6 a group of former Catholic University men's basketball players learned that there are limits to that trend when a district court dismissed their complaint with prejudice.

The plaintiffs—players on the 2001 Men’s Division III National Collegiate Athletic Association championship team—had asserted California and state law right of publicity claims against a company that operated a website that sold licensed photographs fromNCAA championship events. The defendant moved to strike the complaint under California's Anti-SLAPP statute, arguing that the plaintiffs' claims were preempted by the Copyright Act and barred by the First Amendment.

The U.S. District Court for the Central District of California agreed that the right of publicity claims were preempted by the Copyright Act because the plaintiffs could not identify any use of their likeness that went beyond the website's sale of the copyrighted images.

Because the court granted the defendant's motion to strike on preemption grounds, it said it was not necessary to consider the First Amendment argument.

Proposed Class Action

California's anti-SLAPP law, Cal. Code Civ. P. §525.16, gives a defendant an opportunity to get quick dismissal of a “strategic lawsuit against public participation.” T3Media Inc. sought protection under the statute for claims based on its offer to sell, through its website,, nonexclusive licenses to images of NCAA events. All of the images were owned or controlled by the NCAA and consisted of “thousands of photographs over more than 70 years, including 89 NCAA championship games across 23 sports.”

T3Media hosted and licensed the images pursuant to an agreement with the NCAA.

The plaintiffs, who played for the Catholic University basketball team from 1997 to 2001, proposed “a class action on behalf of all current and former NCAA student-athletes whose names, images, and likenesses have been used without their consent by Defendant for the purpose of advertising, selling, or soliciting purchases of the photographs.” The complaint alleged violation of California's right of publicity statute, Cal. Civ. Code §3344, and violation of the common law right of publicity.

Sale of Photos Protected Activity

The court noted that there is a two-step process to determine if a claim is barred by the anti-SLAPP law. First, a defendant has the burden of demonstrating that its challenged action arises from a protected activity. If the defendant meets that threshold, the burden shifts to the plaintiff to establish that it will nonetheless prevail on its claim.

Here the was no question that T3Media had carried its burden with respect to the first prong of the test.

“The photographs here depict moments in NCAA sports history,” the court said. “Considering the relevant case law and the direction to broadly construe the statute, this Court finds that the photographs here fall within the realm of an issue of public interest.”

Likeness Can't Be Separated From Work

As to the second prong of the test, T3Media argued that the players could not prevail on their right of publicity claims because those actions were preempted by the Copyright Act.

Section 301(a) of the Copyright Act provides that state law and common law claims are preempted by the Copyright Act if (1) the content of the protected right falls within the subject matter of copyright; and (2) the right asserted under the state law is equivalent to the exclusive rights protected by the Copyright Act. 17 U.S.C. §301(a).

“Plaintiffs do not dispute that photographs are the proper subject matter of copyright,” Judge Andre Birotte Jr. said. “Rather, Plaintiffs attempt to distinguish their rights to their own likenesses and to publicity from the photographs themselves.”

The plaintiffs relied on Downing v. Abercrombie & Fitch, 265 F.3d 994, 60 U.S.P.Q.2d 1184 (9th Cir. 2001), for the notion that the Copyright Act does not preempt a right of publicity claim arising out of the publication of a photograph.

But, Downing explained that the basis of the right of publicity claim in that case was not the copyrightable photograph itself but rather the uncopyrightable persona embodied in the photograph.

“The Downing decision differentiated between cases finding right-of-publicity claims not preempted and those that found preemption, by separating the use of the name and/or likeness from the copyrighted work itself,” the court said.

“Since Plaintiffs do not identify any use of their likenesses not wholly contained within the photographs, Plaintiffs’ claims seek to prevent Defendant from distributing the copyrighted work itself,” the court held. It said:

Accepting Plaintiffs’ interpretation without separating the likeness from the work would impermissibly negate Copyright’s intended preemptive effect. Further, it would destroy copyright holders’ ability to exercise their exclusive rights under theCopyright Act, effectively giving the subject of every photograph veto power over the artist’s rights under the Copyright Act and destroying the exclusivity of rights the Copyright Act aims to protect. 

The court accordingly determined that all of the asserted claims were preempted by the Copyright Act and so it granted T3Media's motion to strike.

The plantiffs were represented by Elaine T. Byszewski of Hagens Berman Sobol Shapiro LLP, Pasadena, Calif. T3Media was represented by Karen A. Henry of Davis Wright Tremaine LLP, Los Angeles.

To contact the reporter on this story: Tamlin Bason in Washington at

To contact the editor responsible for this story: Tom P. Taylor at

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