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When copyright protection and publicity rights are at odds, P.2

News and Notes Focused on the 3 Public Faces of IP Law

  • Brand Image Protection - Trademark Law
  • Visual Image Protection - Copyright Law
  • Personal Image Protection - Right of Publicity Law

The Image Protection Law blog has been created in order to share stories and information on the legal aspects of: 1) the marketplace reputation of a company or product captured in its trademark, 2) published or publicly-displayed artwork, photography, and any created visual design, and 3) use of a person's photograph or likeness for product promotion or other commercial purposes.

The "IP3" share at least one thing in common: Image is everything. In these posts let's look at what that means in the realm of intellectual property in the news, but let's also be prepared to explore if there's something more beyond "everything." Don't forget, the intellectual in "intellectual property" doesn't mean smart or brainy, although by nature true creators often are. The word is used to refer to any creation, i.e., a "product of the mind." While this blog will be regularly updated, you are encouraged to share your thoughts on these posts.

Last time, we began looking at the question of how publicity rights and copyright protection are addressed when there is a conflict between the two. As we noted, publicity rights are generally held to be applicable when a photograph of an individual is used for advertising or commercial purposes but, as between publicity rights and copryright,  it isn't always intuitive whether one or both will be applicable.

A recent example demonstrating this issue is Maloney v. T3Media, Inc., a Ninth Circuit Court of Appeals case involving two Catholic University basketball players who sued T3Media for violation of their publicity rights under California law in connection with NCAA photos taken at a Division II national basketball championship game. 

Although the NCAA owned copyrights to the photos, T3Media signed an agreement with NCAA allowing T3Media to store, host, and license the photos. Consumers were allowed, for  a $20 to $30 fee, to download images and use them for non-commercial art.

From the players' perspective, the photographs of them were being sold for commercial purposes, i.e., the fee charged. However, under federal copyright law any state law that is "equivalent" to the rights granted under copyright - notably the rights to copy, sell and distribute copyrightable material - is "preempted" by federal law, and cannot proceed in court.  In this case the court found that the right sold to download the images was such an equivalent right, and hence the publicity-right claim was dismissed.

Significantly, the images were not used on merchandise or for advertising purposes, as is required to present a right of publicity claim. Although the basketball players argued that the commercial sale of the images itself was enough to trigger a publicity claim, the latter activity, according to the court, amounted to the mere copying, selling and distributing of copyrighted works, nothing more, proving fatal to the plaintiffs' claims on the grounds of copyright preemption.

We'll look a bit more at this case in our next post, and the importance of working with an experienced attorney when it comes to publicity rights protection.

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