In recent posts, we’ve been looking at the intersection of publicity rights and federal copyright protection. As we’ve noted, an important issue in this area is when federal copyright law takes precedence over state-law rights of publicity. Courts have enforced publicity rights in photographs over and against federal copyright protection when the images are used for advertising or the sale of products. A recent case from Ninth Circuit Court of Appeals, however, declined to enforce publicity rights in the context of commercial licensing of copyrighted images.

As we noted in our first post on this topic, the way courts reason through the applicability of publicity rights is not always intuitive for one who isn’t versed in the technicalities of the law. In this case, it may not be so much because of the technicalities of the law, though, but because the court didn’t fully articulate its reasoning. 

Commercial licensing of photography can, of course, exclude permitted uses relating to advertising and the sale of products (assuming the licensing itself is not commercial or is not equivalent to mere coping, selling and distributing of images; see the previous post on this so as to trigger copyright preemption). What isn’t fully articulated by the court in this case, though, is exactly how the lines should be drawn on the issue of preemption. Exactly when is the use of images of others protected only by copyright law?

This is an important issue in the social media age, when sharing and profiting from images of others has become very easy and increasingly commonplace. Whether the emerging ways of profiting from images of others are adequately accounted for in the currently law on preemption is an open question. Some experts in the field have suggested that, to adequately address this issue, the courts will not only have to carefully consider the purpose of copyright protection in relation to state publicity rights law, but also clarify the role consent plays in triggering state law publicity rights.

In a future post, we’ll look a bit more at the issue of consent at it applies to the right of publicity.