Maloney v. T

3MEDIA, INC 853 F.3d 1004 (9th Cir. 2017)

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Nature of the Case

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Facts

Ps are former NCAA student-athletes who played for the Catholic University (CU) men's basketball team between 1997 and 2001. In their final year, they made it all the way to the Division III national championship game and helped lead the underdog Cardinals to an upset 76-62 victory over the William Paterson University Pioneers. This was captured in a series of photographs depicting Ps in play, and later posing as members of the team with CU's first-ever national championship trophy. The NCAA owns or controls the copyright to these photographs. It accordingly placed them into its collection, the NCAA Photo Library. D provides storage, hosting, and licensing services for a wide variety of digital content. D contracted with the NCAA to store, host, and license the images in the NCAA Photo Library. Consumers could view digital thumbnails of the images contained in the NCAA Photo Library and for $20 to $30 obtain a non-exclusive license permitting them to download a copy of a chosen photograph. Users were required to assent to a 'Content License Agreement' in order to download one of the photographs. Consumers could 'use a single copy of the image for non-commercial art use.' They did not obtain 'any right or license to use the name or likeness of any individual (including any athlete, announcer, or coach) appearing in the Content in connection with or as an express or implied endorsement of any product or service.' Ps sued D alleging that D exploited their names and likenesses commercially by selling photographs. Ps asserts claims for violation of California's statutory right of publicity, common law right of publicity, and Unfair Competition Law. D moved to strike the complaint pursuant to California's anti-SLAPP statute. D argued that the federal Copyright Act preempts the claims. The court granted the motion and Ps appealed. The district court rejected Ps' argument that a publicity-right claim involving a photograph is not subject to preemption.