Right of Publicity Suits Not Pre-empted by Copyright Act!

            The concept of pre-emption concerns whether laws can be enacted in an area already exclusively covered by a federal statute. It often arises in connection with the United States Copyright Act, which confers exclusive jurisdiction for copyrightable matter in the United States District Court.

            This means that an action cannot be maintained, or a state law passed, if it affects copyright, unless there is some added element that would make it different from copyright.

            Two recent decisions concerning photography addressed this issue in the realm of the right of publicity.

            The first, KNB Enterprises v. Matthews, brought in a California state court, concerned unauthorized postings of erotic nude model photos on a website. The second, Brown v. Ames, brought in Texas federal court, concerned a record company’s unauthorized use of photographs of the performers’ likenesses.

            In both situations, the required additional element was present, and the cases were permitted to proceed.

            In the first case, the defendant copied 417 of the plaintiff’s copyrighted photos and posted them on its website. The plaintiff did not sue for copyright infringement. Instead, he obtained an assignment from the models and sued for invasion of their right of publicity.

            The Appellate Court reversed the initial dismissal, holding that a human likeness is not copyrightable, even if captured in a copyrighted photo. Thus, the requisite added element.

            The in the second case, the plaintiff sued for both copyright infringement and violation of the right of publicity for misuse of photos on cassettes and CD covers.

            The Appellate Court affirmed the lower court, holding that a person’s "persona" is protected by Texas statute, and that a "persona" is not a subject of copyright.

            Both cases distinguished, or explained away, an earlier case which held that models did more than just model - they actually performed dramatic roles – since performances are copyrightable subject matter.