Delacruz v. Roc Nation LLC, No. 2:25-cv-11864-AH-(SSCx), 2026
WL 2455107 (C.D. Cal. Jul. 28, 2026)

Should copyright preemption apply to a right of publicity
claim where the original, consented-to use of the work was created for
advertising? The court here answers yes, although I think I would say no under
conflict preemption.

Delacruz is a professional model “whose likeness has been
featured in advertisements throughout the world.” Roc photographed her for a
fee in connection with an advertising and marketing campaign for Megan Thee
Stallion’s Hot Girl Summer swimwear.  She
allegedly granted consent only for use in social media, but Roc used her
likeness on physical, public billboards. She sued for California statutory and common
law misappropriation of her right of publicity and false endorsement/false
advertising under the Lanham Act. (A breach of contract claim was apparently
dropped.)

The question in the 9th Circuit is whether the use of the
likeness forms the basis of a publicity rights claim—if so, it’s not preempted.
On the other hand, “merely interfering with the distribution, display, or
performance of a copyrighted work” is preempted. While existing precedent “strongly
implies that misuse of an individual’s likeness is the ‘basis’ of a
publicity-right claim when the name or image is exploited in advertising or on
merchandise,” the circuit has considered other factors. For example, where
there’s not voice imitation, but rather licensing of an existing sound
recording, “the entirety of the allegedly misappropriated vocal performance is
contained within a copyrighted medium” and there is preemption. (This is
downstream of §301 preemption just being a bad fit for the relevant
considerations, as I have argued—the court here, like many before it, mixes and
matches statutory and conflict preemption reasoning, not to its benefit.)

The court here also drew on Second Circuit precedent, which
looked at whether a plaintiff’s name or likeness was “extracted in any way to
appear independently from how it originally appeared” in the works at issue. Melendez
v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022). Fleet v. CBS, Inc., 50
Cal. App. 4th 1911 (1996), also found preemption where “the only alleged
exploitation occurred through the distribution of the actor’s performance in a
motion picture.”

Thus, it wasn’t enough to avoid preemption that the photos
were (re)used in commercial advertising when they were created as commercial
advertising. Under such circumstances, the plaintiff was objecting to the “ ‘unauthorized
distribution and republication of a copyrighted work, not the exploitation of
[her] likeness on an unrelated product or in advertising.’ In other words, the
entirety of the misappropriated likeness is contained within a copyrighted or
copyrightable medium.” She consented to the commercial use of the photographs; her
claims arose from the further distribution or duplication of those photographs.

Nimmer says that a claim “deserve[s] to be preempted …
[involving] facts of a party trying to suppress the very copyrighted work to
which she had earlier voluntarily contributed.” Therefore, “the conclusion
cannot follow mechanically that all advertising is actionable.” Following
Nimmer, plaintiff “collaborated in the creation of a copyrighted advertising
product,” and “even if she … can also adduce a contractual dispute” regarding
the scope of placement of such photographs, her collaboration “precludes her
from using the right of publicity to squelch exploitation of that copyrighted
work for its intended purpose of appearing on” Hot Girl Summer swimwear
advertisements.

True, Toney v. L’Oreal USA, Inc., 406 F.3d 905 (7th Cir.
2005), allowed a publicity rights claim to proceed when the defendant used the
ad in which she appeared beyond the authorized time period, but the court
thought that conflicted with Ninth Circuit precedent. “[T]he commercial use
element does not qualitatively distinguish the right of publicity claim from a
claim in copyright because the claim involves acts of distribution for
commercial use. Thus, the claim does not involve additional elements beyond the
reproduction of copyrighted works.”

Lanham Act: There was no literal falsity. Her theory was
that the billboards were misleading because it suggested that she endorsed the
Hot Girl Summer swimwear to billboard viewers when she sought to endorse the
swimwear to social media viewers only.

However, by agreeing to participate
in the photoshoot for the advertising campaign, Plaintiff effectively lent her
endorsement of the Hot Girl Summer swimwear. Plaintiff does not allege that
there was anything about that endorsement that communicated a limitation to certain
viewers only, such that the photograph was misleading when it was posted on a
billboard. Moreover, Plaintiff does not allege a theory of likelihood of
confusion where the only plausible confusion alleged is who was to receive the
message, not anything about the message itself.

from Blogger https://tushnet.blogspot.com/2026/08/court-finds-rop-claim-preempted-where.html