Last month, the Eighth Circuit Court of Appeals forced former professional wrestler Steve "Wild Thing" Ray to tap out in his battle against ESPN by dismissing the wrestler's right of publicity suit for failure to state a claim.  Mr. Ray originally sued ESPN for rebroadcasting old wrestling matches in which Ray participated without his permission, claiming that such unauthorized rebroadcasting infringed his state-law right of publicity.  In a federal court forearm smash, the district court for the Western District of Missouri held that the Copyright Act preempted Ray's right of publicity claim.  Subsequently, Ray appealed the ruling – hoping for a surprising "sunset flip" of his dismissal – but the Eighth Circuit affirmed the lower court's submission hold.   

Under the laws of most states, the right of publicity, or a similar tort such as misappropriation, prevents the unauthorized commercial use of one's identity, likeness, name or personality.  However, according to 17 U.S.C. § 301(a), the Copyright Act will preempt state-law claims when (1) the work at issue comes within the subject matter of copyright and (2) the state law created right is equivalent to a right within the scope of copyright. 

As the Eighth Circuit pointed out in its decision, broadcasts of sporting events, like those of Ray's past performances, are "original works of authorship…fixed in a tangible medium of expression" and can be "perceived, reproduced, or otherwise communicated," and are therefore properly the subject matter of copyright.  (Ray v. ESPN, Inc., 2015 WL 1810486 (8th Cir. Apr. 22, 2015)).

As to the second preemption prong, copyright owners hold the exclusive right to reproduce and license copyrighted work, including broadcasts.  Here, according to the court, Ray's likeness could not be detached from the copyrighted performances.  Any infringement of his state-law right therefore derived from the mere rebroadcast of the performance, the exact right that the Copyright Act confers upon the copyright owner.  Thus, with a resounding superplex from the second rope, the Eighth Circuit rejected Ray's arguments and ruled the state law created right is equivalent to a right within the scope of copyright.  In so ruling, the court distinguished the cases cited by Ray, which generally involved using an individual's likeness in advertisements without permission to promote commercial products, as opposed to the current dispute which involved rebroadcasting a copyrighted film. 

The Eighth Circuit's decision comes on the heels of another right of publicity suit targeting ESPN, wherein the father of former professional wrestler Eddie Gilbert is suing WWE and ESPN for rebroadcasting his son's past performances.  However, the district court of the Western District of Tennessee, overseeing the Gilbert case, is not bound by the Eighth Circuit's decision.  

As these cases unfold it will be interesting to see what effect, if any, signed releases of the athlete's right of publicity have on the courts' decisions and their copyright preemption analyses.  The Eighth Circuit noted that Mr. Ray specifically agreed with the Universal Wrestling Foundation that his performances would be recorded and sold.  Mr. Gilbert, however, claims that his son never signed with WWE or ESPN and therefore never transferred his right of publicity in his performances. 

The validity of any given waiver is one thing.  But whether a waiver is even required to broadcast sporting events where the defendant in question holds or has licensed the copyright is the crucial question.  These heel vs. face matches, pitting broadcasters against athletes, are cropping up around the country and while the Eighth Circuit needn't confront the question, the Gilbert court might.  Whether the courts decide to somehow pin their decisions on the legitimacy or presence of an underlying waiver, or instead lay the preemption smackdown on all such right of publicity claims, remains to be seen.