94 F. Supp. 3d 1128
C.D. Cal.2015Background
- Defendant T3Media, Inc. moves to strike Plaintiffs' FAC under Cal. Code Civ. Proc. § 425.16 (anti-SLAPP).
- Plaintiffs assert rights of publicity and UCL claims based on use of NCAA photographs.
- NCAA licensed NCAA Photo Library photographs to Defendant; Paya.com hosted a licensing marketplace for images.
- NCAA photos of Plaintiffs from the 2001 NCAA championship are at issue; Defendant stored/licensed and marketed those photos.
- Defendant announced on August 1, 2014 that Paya.com licensing was no longer available and redirected inquiries to T3Media.
- Court grants the motion to strike the FAC without leave to amend and dismisses with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claims arise from protected activity under § 425.16(b)(1) | Plaintiffs contend activity falls within public-interest speech | Defendant asserts protected activity under 425.16(e)(3)-(4) in public forum/public interest | Yes; claims arise from protected activity under § 425.16(b)(1) |
| Whether the right-of-publicity claims are preempted by the Copyright Act | Rights are distinct from the copyrighted photographs themselves | Claims are equivalent to copyright rights because they seek to control display/distribution of photographs | Yes; preempted by the Copyright Act |
| Whether First Amendment and statutory exemptions defeat the claims | Claims survive despite copyright preemption | Additional defenses invalid if preempted | Not addressed due to preemption ruling |
| Whether leave to amend should be granted | Amendment could cure deficiencies | Amendment would be futile after preemption | Granted without leave to amend; dismissals with prejudice |
Key Cases Cited
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (two-step anti-SLAPP analysis; probability of success separate from protected activity)
- Barrett v. Rosenthal, 40 Cal.4th 33 (Cal. 2006) (public forums for websites; public-interest discussions)
- Wilbanks v. Wolk, 121 Cal.App.4th 883 (Cal. Ct. App. 2004) (public forum/public-interest considerations for anti-SLAPP)
- Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001) (subject-matter of copyright; 'extra element' in preemption analysis)
- Laws v. Sony Music Entm’t, Inc., 448 F.3d 1134 (9th Cir. 2006) (preemption of right-of-publicity when using copyrightable material)
- Fleet v. CBS, Inc., 50 Cal.App.4th 1911 (Cal. Ct. App. 1996) (copyright preemption distinguishes use of likeness from protected display)