The federal Copyright Act preempts plaintiffs’ claims under California’s right to publicity law arising from non-commercial use and publication of copyrighted photographs of plaintiffs taken by third parties. The Copyright Act preempts California’s right to publicity law (Civ. Code 3344) insofar as it would permit persons to sue for the non-commercial use and publication of copyrighted photographs that third parties took showing the plaintiffs. The photographs were copyrighted works of art. While California’s statute can properly prohibit the unconsented-to use of a plaintiff’s image on merchandise or in advertising, it cannot prohibit or require compensation for using a copyrighted photograph of the plaintiff for other—here, non-profit—purposes.
Ninth Circuit Court of Appeals (Smith, M., J.); April 5, 2017; 2017 WL 1244899