Preemption question: Copyright v. Right of Publicity

The Ninth Circuit Court of Appeals in Maloney v. T3 Media, Inc., Case No. 15-55630 (9th Cir. April 5, 2017), recently issued the latest installment in the age-old supposed showdown between Copyright and the Right of Publicity and the issue of preemption.  The Court states in the holding that preemption can occur “when a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use.”

To be clear, copyright does not automatically preempt the Right of Publicity.  The two doctrines protect distinct interests and, have separate policy purposes.  Preemption generally requires a very specific fact pattern.  The assumption seems to be that if the Right of Publicity co-exists in tandem with a copyright interest, preemption must be applicable.  That is not the case, and there are countless examples of uses, situations and fact patterns where various rights or interests apply simultaneously without one preempting the other.  I read Maloney as a fairly confined, and specific ruling on a distinct fact pattern.

Here is a link to an article with more elaboration on the specifics of the case:

http://www.lexology.com/library/detail.aspx?g=00561f3d-b251-4058-af0a-09c44e88fb22&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-04-12&utm_term=

NCAA’s Right of Publicity petition to U.S. Supreme Court denied

Earlier this week, the NCAA’s petition to the U.S. Supreme Court concerning the case of Keller v. Electronic Arts Inc., 724 F.3d 1268 (9th Cir. 2013) was denied.  The author of http://www.RightofPublicity.com joined SAG in filing an amicus brief in that case at the lower court level, and the Ninth Circuit’s ruling and analysis were correct under the circumstances.

Electronic Arts, for its part, had already settled the case.  The NCAA petitioned the Supreme Court to adopt the Rogers Test to determine use of the Right of Publicity of student athletes in video games and to overturn the determination that the use of the athletes in the video game was not protected by the First Amendment.

The Rogers Test was devised as an analysis for titles and would have been entirely wrong for the Keller case.  It is surprising the Rogers test was even suggested, except perhaps it was believed that if adopted the result would be something the NCAA preferred.

The Ninth Circuit’s application of the Transformative Use test was the correct test for the use and issues in question.  We don’t need the U.S. Supreme Court to assist in determining that a test devised for titles should not be used in a case like Keller.