Pro Athletes File Amicus Brief Supporting NCAA Players’ Likeness Suit

On December 7, 2015 , professional athletes filed an amicus brief in support of a likeness suit brought by two former NCAA basketball players against a media company that sold game-time photographs of the ex-college athletes.

Patrick Maloney and Tim Judge — both former members of the Catholic University 2001 NCAA Championship basketball team — initially brought the likeness suit in relation to a deal the NCAA made with media company T3Media in 2012 to host and license the league’s photo library. Through this deal, the public was able to search for players by name and purchase photos of them on T3Media’s website. The players brought the suit claiming that the media company used their likeness to market and sell photographs without providing compensation, in violation of their publicity rights. 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. The players filed their appeal in November.

Earlier this week, members of all professional player unions in the U.S. (NFL, NBA, MLB, MLS) filed an amicus brief in the Ninth Circuit, supporting Maloney and Judges’ position. In the amicus brief, the union members assert that the district court’s ruling would “severely limit the ability of professional athletes and other marketable personalities to control the commercial exploitation of their names and likenesses.” The brief went on to argue that the claims should not be based on copyright law, but rather, on state right-of-publicity laws because the players are challenging the commercialization of their likeness and not the specific use of the copyrighted images. As the brief sets forth, the right of publicity laws are in place so that individuals can choose how their identity is commercialized and so that one can receive compensation for such commercialization.

The player unions further argue that the district court’s holding does not represent the intended purpose of the preemption clause within the Copyright Act. Although the court relied on the preemption clause in its holding, the brief argues that the clause was not intended to apply to claims that cannot be copyrighted — like an individual’s right to their likeness.

The brief states, “[t]he Copyright Act was never intended, and cannot fairly be construed, to give companies or individual photographers the unfettered right to appropriate the commercial value of an athlete’s name or likeness by the expedient of using copyrightable photographs.”

 

The district court’s ruling, if upheld on appeal, may be a cause of concern for professional athletes, celebrities, and public figures who may lose control over how copyrighted images of them are being used and marketed.

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