Copyright Act Submission Hold: Professional Wrestler’s Publicity and Privacy Claims Preempted

copyrightGuest Commentary

by Sara Thornton, a 2015 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

What do copyright law, a WWE professional wrestler, and ESPN have in common? They were all involved in an appeal before the U.S. Court of Appeals for the Eighth Circuit in Ray v. ESPN, Inc., decided on April 22, 2015. Steve “Wild Thing” Ray sued ESPN under Missouri law for broadcasting WWE rerun matches featuring Ray in the early 1990s.

The specific claims were for (1) invasion of privacy, (2) misappropriation of name, (3) infringement of the right of publicity, and (4) interference with prospective economic advantage. ESPN moved to dismiss the suit, asserting that federal copyright law preempted the state-law claims. The district court construed Ray’s first two claims as being identical under Missouri law, so analyzed them as one. It also assumed that since Ray did not challenge ESPN’s argument that copyright law preempted his first and fourth claims, Ray had waived those claims. The court concluded that the Copyright Act preempted Ray’s remaining misappropriation and right of publicity claims.

The Eighth Circuit affirmed, holding that ESPN’s airing of the wrestling matches depicted Ray in an “original work of authorship” covered by federal copyright law. Because Ray’s claims did not assert that ESPN used Ray’s name or likeness to promote commercial products, but only “involved an attempt to merely ‘prevent rebroadcast’ of a copyrighted film,” the Eighth Circuit rightfully sided with ESPN and dismissed the suit.

Such suits are more common than one might think. In March 2015, the father of the late WWE star Eddie “Hot Stuff” Gilbert, who died in 1995, sued WWE and ESPN for airing rerun matches, requesting damages and a portion of the proceeds from the companies’ use of Gilbert’s name and likeness. And earlier this month, a federal judge in Nashville, Tennessee dismissed a similar suit brought by ten college football players against major broadcasting networks. The judge found that the football players did not have rights to compensation for playing in games aired by the networks.

Another, higher-profile example (though it did involve different underlying legal claims) is Garcia v. Google, Inc. In this Ninth Circuit case, Cindy Lee Garcia requested a preliminary injunction to force YouTube to remove her five second performance in Innocence of Muslims. During the filmmaking process, Garcia earned $500 for delivering two lines, which were dubbed over—unbeknownst to Garcia—to depict the Prophet Mohammed in a negative manner. The film reportedly caused outrage in the Middle East, and Garcia allegedly received multiple death threats, as well as other forms of harassment, for appearing in it. In her suit, Garcia claimed that her minimal appearance in the film makes her a copyright holder of the work and thus has the right to demand that the entire film be removed from YouTube.

Nevertheless, Garcia did not fare any better in court than the plaintiffs in the WWE suits. As the Ninth Circuit noted, this situation “leaves Garcia with a legitimate and serious beef, though not one that can be vindicated under the rubric of copyright.” Copyright law simply does not protect those who appear in copyrighted works because, as explained by the Eighth Circuit in Ray, one’s “likenesses [cannot] be detached from the copyrighted performances that [are] contained in the films.” These holdings make clear that one’s creative contribution to a copyrighted work does not create a separate copyright. Thus, those who appear in a copyrighted work cannot assert copyright claims based on “partial” ownership.

This distinction between the author—the true copyright holder—and those who have contributed to the work is paramount in order to protect the author. Without this distinction, “partial” copyright holders could undermine the rights of the author by controlling where and how the copyrighted work is promoted and sold. According to the Ninth Circuit, this would be disastrous to the integrity of copyright law, essentially “mak[ing] Swiss cheese of copyrights.” Simply put, copyright law does not protect one’s privacy; it protects the author’s commercial interest. In the Garcia court’s words, “a weak copyright claim cannot justify censorship in the guise of authorship.”

Therefore, it is no surprise that ESPN routed Steve “Wild Thing” Ray in the courtroom. Because copyright law is intended to protect only the author’s interest, those who attempt the same litigation strategy will likely suffer the same fate.

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