College Athletes Dealt New Setback in Bid to Be Compensated for Visual Media

A federal appellate circuit rules that a lawsuit alleging misappropriation of athletes' likenesses is just a "thinly disguised copyright claim."
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In a dispute that ostensibly dealt with collegiate athletes suing over their images in photographs, but touches upon broader celebrity exploitation, the 9th Circuit Court of Appeals on Wednesday narrowed the circumstances by which plaintiffs can pursue lawsuits alleging violations of their likenesses.

Patrick Maloney and Tim Judge, former basketball stars at the Catholic University, sued T3Media, which had a contract with the NCAA to store, host and license images in a digital photo library. The class action alleged that photos selling for $20 to $30 violated the rights of publicity of all current and former NCAA student-athletes whose names, images and likenesses have been used without consent.

Upon appeal, the big issue became the boundary between federal copyright law and California's publicity right statute. T3Media insisted that the athletes' claims fell within the sphere of authority vested by the U.S. Copyright Act, and was thus preempted. The athletes maintained that since the right of publicity protects against exploitation of an individual's "persona," this can't be "fixed" in a copyrightable form in the same way as an actor's performance or an author's writing and shouldn't limit their suit over imagery in photographs.

The 9th Circuit, in an opinion written by Judge Milan Smith, Jr. (read here), agrees with T3Media and says that what's important is "not the type of copyrightable work at issue, but rather the way in which one's name or likeness is affected by the use of the copyrighted work."

"In sum, our cases clarify that a publicity-right claim may proceed when a likeness is used non-consensually on merchandise or in advertising," writes Smith. "But where 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 is little more than a thinly disguised copyright claim because it seeks to hold a copyright holder liable for exercising his exclusive rights under the Copyright Act."

Maloney and Judge's claims over copyrighted photographs can't go forward. It also seems likely that the same would hold true for televised games.

The decision will be most meaningful in the sports world, where athletes have been rising up of late to challenge their exploitation on television, in videogames and elsewhere in media. Although some courts have bypassed the copyright preemption issue when dealing with the likeness rights of amateur athletes (for example, see here), others appellate circuits have been leery about extending publicity rights too far. (See ESPN's 2015 win against a professional wrestler.) There's a good reason why all of the professional sports organizations as well as their respective players' unions submitted amicus briefs in this case.

The leagues (and their media partners) gain the advantage from Wednesday's outcome, although Smith attempts to frame the decision as a balancing act.

"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," states the opinion. "Plaintiffs’ position, by contrast, would give the subject of every photograph a de facto veto over the artist’s rights under the Copyright Act, and destroy the exclusivity of rights that Congress sought to protect by enacting the Copyright Act."

In coming to this conclusion, Smith discusses some past precedent highlighting why this decision will meaningful even beyond sports. 

For instance, there was a 2006 decision at the 9th Circuit dealing with a Jennifer Lopez and LL Cool J song, which sampled work by the recording artist Debra Laws. The appellate circuit at the time rejected a publicity right claim from Laws against Sony, reasoning that "federal copyright law preempts a claim alleging misappropriation of one's voice when the entirety of the allegedly misappropriated vocal performance is contained within a copyrighted medium."

Despite this, some recording artists continue to pursue publicity right claims over sampled work. See a recent lawsuit against Apple after an iPhone ad came out using Jamie xx's "I Know There's Gonna Be (Good Times)." Wednesday's decision could be bad news for such lawsuits.

Similarly, Smith mentions Fleet v. CBS Inc., a 1996 case decided by a California appellate court where an actor, Stephan Fleet, having been denied certain compensation, brought a lawsuit alleging that CBS didn't have permission to use his name, picture and likeness in conjunction with promoting the film. The claim was also deemed preempted by federal copyright law as CBS did nothing more than reproduce and distribute his performance in the film. That decision now gets an even greater stamp of authority as good law.