Ninth Circuit Affirms Dismissal of Former-NCAA Champions’ Likeness Suit

The Ninth Circuit has affirmed the dismissal of the lawsuit of two former college basketball players against a website that sold official NCAA photos, as the website’s rights under federal copyright law preempted the players’ publicity rights.

As background, two former Division III college basketball players, Patrick Maloney and Tim Judge, sued T3Media in June, 2014 regarding the Website’s deal with the NCAA to host and license the League’s photos. Maloney and Judge were part of the 2001 NCAA championship team — Catholic University. Pursuant to the agreement, the T3Media sold digital copies of the copyrighted photos on its website. The photos included images from the 2001 championship games, and T3Media was issued both commercial- and personal-use-licenses.

In their suit, the former players accused T3Media of violating and depriving them of their publicity rights and further, violating the Unfair Competition Act, contending their likenesses were used to induce purchases from the website’s photo library. Notably, the players maintained that any consent which may have been given regarding the usage of these photos was invalid, as the NCAA rules barred any commercial exploitation of images of student-athletes.

The District Court granted T3Media’s anti-SLAP motion in March, 2015. Under this statute, strategic lawsuits against public participation are prevented, and thus, the court found the publicity claimed barred by the Copyright Act and the First Amendment.

On appeal to the Ninth Circuit, Malone and Judge maintained that the website used their likeness without authorization, and in return, profited from it. However, the Ninth Circuit rejected this argument, as the licensing of the photos from the 2001 national championship was protected under the Copyright Act.

The Ninth Circuit further ruled the players’ argument that their photographs were different from “works,” such as films or songs, and thus, the players’ exclusive right to use of their likeness fell outside the Copyright Act. As the court stated, there was no difference between other works and these photographs.

The Circuit further stated that T3Media was not selling the images for any advertising or merchandising purposes, as that would trigger a claim. Rather, the court held that this ruling stuck a proper balance between policing copyrights and protecting former-players right to publicity.

As the Ninth Circuit stated, “[p]laintiff’s position, by contrast, would give the subject of every photograph a de facto veto over the artist’s rights under the Copyright Act, and destroy the exclusivity of rights that Congress sought to protect by enacting the Copyright Act.”

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