California Court of Appeal, Second Appellate District, June 17, 2009 (not for publication)

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  • California Court of Appeal holds that plaintiff’s right of publicity claim, based on defendants’ alleged use of her name and likeness to promote a filmed program that plaintiff co-produced and starred in, is not preempted by the Copyright Act

Plaintiff and defendants entered into a joint venture to produce a program called Bikini Destinations, and plaintiff appeared in several episodes of the program. Defendants copyrighted the program, advertised it, licensed it to media outlets and web sites, and sold images of plaintiff taken from the program as wallpaper for cell phones. Plaintiff claimed that she did not grant consent for defendants to use her name and likeness because certain conditions, such as plaintiff having final approval of the program, were not met.

Plaintiff filed suit for common law misappropriation of her name and likeness, violation of California’s right of publicity statute, and unfair competition. Defendants argued that plaintiff’s state law claims were preempted by the Copyright Act because the images of her were contained in a copyrighted work, relying on a 1996 California Court of Appeal decision (Fleet v. CBS, Inc., 50 Cal.App.4th 1911). The trial court agreed and granted summary judgment for defendants.

The Court of Appeal reversed. The court held that plaintiff’s misappropriation of name and likeness claims were not preempted by the Copyright Act, citing Ninth Circuit precedent that stated the tort of misappropriation of name or likeness protects a person’s persona and a persona does not fall within the subject matter of copyright. The court distinguished the case at hand from Fleet v. CBS, Inc. because the decision in that case was limited to the narrow issue of whether an actor may bring an action for misappropriation of his or her publicity rights where the only alleged exploitation occurred through the distribution of the actor’s performance in a motion picture. The court also noted that Fleet has been distinguished on its facts in several federal and state court cases.

The court held that, unlike in Fleet, the gravamen of plaintiff’s state law claim is that defendants made unauthorized use of her name and likeness to advertise and promote the Bikini Destinations films. According to the court, a person’s name or likeness, even though it is in a tangible medium, does not become a work of authorship for purposes of the Copyright Act simply because it is embodied in a copyrighted work. In a concurring opinion, a justice emphasized that plaintiff alleged that defendants used her name and likeness to promote their program; plaintiff was not alleging that defendants misappropriated her name and likeness by distributing the program.