Student-Athletes Lose Right of Publicity Claim for Licensed Use of NCAA Photographs
On March 6, 2015, a district court in California held that the student-athletes claims against T3Media for its Paya.com website were preempted by copyright law. The NCAA gaver T3Media permission to display and sell photographs of NCAA athletes. In an opinion that only adds to the confusion over how to assess when right of publicity claims are preempted by copyright law, the district court held that copyright law preempted the right of publicity claims here because the use was only of the original photographs, and did not involve advertising or a danger of false endorsement. Although I agree with the ultimate conclusion that the claims were preempted, the district court's standards do not track either the statutory requirements of Section 301 or broader principles of conflict preemption under the supremacy clause.
For an in-depth analysis of copyright preemption and the right of publicity, see my article on the topic, Jennifer E. Rothman, Copyright Preemption and the Right of Publicity, 36 U.C. Davis L. Rev. 199 (2002).
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.