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Copyright Act preempts state law privacy claims


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By Sean McLean


A former professional wrestler sued the group of sports television networks known collectively as ESPN in a Missouri state court for their re-telecast of his wrestling performances.  The wrestler claimed that ESPN failed to obtain his consent to the use of his identity, likeness, name, nick name, or personality to depict him in any way.  

As such, the wrestler asserted the following four state law claims against the networks: (i) invasion of privacy, (ii) misappropriation of name, (iii) infringement of the right to publicity, and (iv) interference with prospective economic advantage.  After getting the case to federal court, ESPN responded with a request to dismiss the wrestler’s claims on the grounds that they are preempted by the Copyright Act, due to the network’s ownership of the wrestling film copyrights.  The federal trial court dismissed the case and the wrestler appealed.


Copyright subject matter
The Copyright Act defines the subject matter of a copyright generally as original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.  Works of authorship include motion pictures and other audiovisual works.  

The court quoted the Copyright Act: “A work is fixed in a tangible medium of expression when its embodiment in a copy or phonorecord is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”


Rights under Copyright Act
The Copyright Act gives copyright owners exclusive rights to do and to authorize among other things, the reproduction of the copyrighted work in copies or phonorecords; the preparation of derivative works based upon the copyrighted work; the distribution of copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or be rental, lease, or lending; and the display of certain copyrighted work publicly.

The U.S. Court of Appeals in St. Louis found that the filming of the wrestler’s wrestling performances clearly generated an original work of authorship that was fixed in a tangible medium of expression and could be perceived, reproduced, or otherwise communicated.  Therefore, the films were within the subject matter of the Copyright Act.  


Furthermore, the wrestler’s likeness could not be detached from the copyrighted performances that were contained in the films and was not used in an advertisement to promote commercial products without his permission.  Accordingly, the court held that the Copyright Act preempted the wrestler’s state law claims, which meant that those claims were properly dismissed.



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