Players Associations File Brief Supporting Reversal in Maloney

By Jennifer E. Rothman
December 11, 2015

Earlier this week the NFL, MLB, NHL and MLS players associations filed an amicus brief supporting the NCAA student-athletes' appeal from a decision that held that their right of publicity claims were preempted by copyright law. The student-athletes objected to the sale of photographs that were licensed by the NCAA and that included images of the athletes without additional express permission or payment. In the brief, the players associations advocate for a very limited scope of copyright preemption. They contend that preemption is limited to the statutory provision - Section 301 - and that it only applies in contexts when a right of publicity holder is making or can make a copyright claim. Even though the amici are correct that section 301 was intended to preempt state copyright laws, it also was meant to sweep more broadly. The provision, however, is virtually impossible to apply and the amici's claim that because name and likeness are not copyrightable the right of publicity should (almost) never be preempted exemplifies the limited usefulness of the provision. I develop many of these challenges for interpreting section 301 in my article Copyright Preemption and the Right of Publicity, 36 U.C. Davis L. Rev. 199 (2002).

However, as I argue in that paper, the Supremacy Clause provides another basis for preemption when the assertion of state law conflicts with copyright law. Such conflicts often arise in the context of derivative works where copyright holders should have latitude to authorize such works without getting additional permission from performers who appeared in the original works. There are some outstanding contract issues here - whether the student-athletes contracts permitted such uses - but putting the contracts to the side for the moment, the players knew and approved of the photographing and filming of their games and their performances in those games. Undoubtedly, on some level it is unfair that the NCAA is separately selling photographs of the players for profit without sharing any of the income, but the legal issue on its face is similar to a movie studio selling stills of its actors taken from films that they have agreed to appear in. Although in an earlier post, I criticized the logic of the district court opinion, its ultimate holding that the photographs in question are preempted by copyright law appears sound. The photographs are stills from various games that the players agreed to appear in (knowing they were being filmed and photographed) and to which the NCAA owns the copyrights.

However, the defendant, T3 Media, should not be overconfident here. Not only do the student-athletes garner a lot of sympathy (and thus far have been winning their cases in the Ninth Circuit), but there also are some potential fact issues that may make this case challenging to resolve at this stage in the proceedings. The record may need to be developed with regard to how T3 Media and the NCAA promoted the sale of those photographs and whether there were additional uses of the players' identities. I wouldn't be surprised to see this case settle in light of the other settlements in related NCAA cases.

NFL Players Association Amicus Brief, Maloney v. T3Media, Inc., No. 15-55630 (Filed 9th Cir. Dec. 7, 2015)