2001 NCAA Basketball Champs Appeal 9th Circ. Dismissal of Likeness Suit

In March of this year, U.S. District Judge Andre Birotte Jr. dismissed a lawsuit brought by former NCAA basketball players alleging that the licensing of copyrighted photographs violated their right of publicity. Patrick Maloney and Tim Judge — both former members of the Catholic University 2001 NCAA Championship basketball team—initially brought the suit in relation to a deal the NCAA made with T3Media in 2012 to host and license the league’s photo library. Through this deal, the public could purchase non-exclusive licenses to the copyrighted photos on T3Media’s website. The players brought the suit claiming that the marketing of their photos violated their right of publicity. Judge Birotte dismissed the suit with prejudice, finding that the company did not exceed its copyright and therefore the claims were preempted by the Copyright Act.

In the appeal filed last week, the former players argued that the District Court erred in dismissing the suit and contended that the Copyright Act does not preempt their right to publicity claim. In support of its assertion, the appeal argued that the dismissal was based on case law within the context of film and music but did not cite any case precedent whereby it was held that publicity rights are preempted in copyrighted photos.

The main issue raised on appeal is that the company solicited that sale of photos by marketing the players themselves rather than the games they played in and therefore it “has appropriated, without permission and without providing compensation.” It is the players’ position that “[s]uch monetization and marketing of photographs — in the form of prints, poster and trading cards — has long required the consent of athletes and others.”

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