College athletics, specifically the payment of student athletes and their right to control the exploitation of their likeness, has been the subject of significant debate over the last few years. On one side, you have the players who know that the colleges and leagues they play in make millions, if not billions in revenues off their talent and likeness. These student athletes provide many of the major services of their professional counterparts, yet are largely prevented from taking financial benefit of their collegiate stardom. Strict rules prevent the payment of salaries to student athletes, and limit the number and type of gifts and endorsements they can receive.
On the other side of the debate, colleges argue that student athletes are just that–students first, athletes second. They want for nothing while in school, and their tuition, room, and board are all covered by scholarships. Many are often accepted at colleges that their grades alone would not justify, and the colleges themselves spend significant resources making sure that the student athletes have the support they need to excel as students. Both the student athletes and regular students benefit from this arrangement as the money the schools make from the students' playing is funneled right back into the athletic department or distributed to the school itself in an effort to keep the ever rising cost of tuition at bay.
It is no surprise then that student athletes have employed a variety of methods to attempt to cash in on their fame. In the most recent case, Maloney v. T3Media, No. 15-55630, a group of student athletes sued T3Media under a California right of publicity statute in an attempt to enjoin T3Media from selling non-exclusive licenses that permit consumers to download photographs of the athletes from the NCAA's photo library for non-commercial use. The district court held that the federal Copyright Act preempted the athlete's claims and dismissed the case.
California, being home to a disproportionate number of celebrities, has a comprehensive right of publicity statute which prohibits the use of a person's likeness to imply sponsorship of a good or service without that person's consent. The question before the Court was whether this use of the plaintiffs' likeness–noncommercial licenses for photographs of the plaintiffs that could not be used on products or catalogs–fell within the ambit of California's right of publicity statute or was preempted by the Copyright Act. In affirming the district court's dismissal, the Ninth Circuit held that it was. The Court explained that its "precedents clarify that the distinction pertinent to the preemption of a publicity-right claim is not the type of copyrightable work at issue, but rather the way in which one's name or likeness is affected by the use of the copyrighted work." Here, the plaintiffs were attempting to control the distribution of the photographs themselves, i.e. the copyrighted work, and not how the photos were later used by end users. This was clearly preempted by the Copyright Act.
The Court then summed up the law precisely: "[a] publicity-right claim may proceed when a likeness is used non-consensually on merchandise or in advertising. But where a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use, a publicity right claim is little more than a thinly disguised copyright claim because it seeks to hold a copyright holder liable for exercising his exclusive rights under the copyright Act."
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