8th Circuit dismisses right of publicity claim as copyright preempted

Ray v. ESPN, Inc., No. 14-2117 (8th Cir. Apr. 22, 2015)
Steve “Wild Thing” Ray wrestled professionally in the Universal Wrestling Federation (UWF) from 1990 to 1994. ESPN obtained films of his wrestling matches and re-telecast them without his consent.  He sued for invasion of privacy and misappropriation of name.  The Copyright Act preempts state-law claims if (1) the work at issue is within the subject matter of copyright as defined in § 102 and 103 of the Copyright Act, and (2) the state law created right is equivalent to any of the exclusive rights within the general scope of copyright as specified in § 106.
The films of Ray’s wrestling performances were within the subject matter of copyright law. Ray argued that ESPN’s use of his “likeness” was the true “focal point of this case.” Not so. The cases he cited were distinguishable because they involved use of an identity to sell something else. Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001) (use in ads suggesting endorsement of clothing seller); Brown v. Ames, 201 F.3d 654 (5th Cir. 2000) (use to sell “cassettes and CD’s,” “music catalogs,” “posters,” and “videotapes,” even though the defendants “lacked copyrights”). “Brown specifically distinguished Baltimore Orioles—and in so doing, distinguished this case as well—on the grounds that ‘the right of publicity claimed’ by the plaintiffs in Baltimore Orioles ‘was essentially a right to prevent rebroadcast of games whose broadcast rights were already owned by’ other parties.” I find this frustrating because it just announces a conclusion: use in ads is use of likeness but use of the same copyrighted work in a broadcast isn’t, at least if defendants own the copyright. But the result’s right.  “ESPN did not use Ray’s likeness or name in an advertisement without his permission to promote its commercial products, and, as the district court correctly noted, Ray’s ‘likenesses could not be detached from the copyrighted performances that were contained in the films.”
And the rights were equivalent: they were “‘infringed by the mere act of reproduction, performance, distribution or display'” of his performances. Dismissal affirmed.
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