For example, you have a lawsuit against another party for infringing on your personal rights of privacy. The other party takes a photograph they had taken of you, and then licenses it to other individuals without your consent. Those individuals use it as a basis for a character in another work, making a large amount of profit. Naturally, this wouldn’t sound fair to the subject of the lawsuit. Yet, making matters worse is, given a current case, it’s suggested that the action would effectively have no remedy. This is due to the doctrine of preemption. So, what is the preemption doctrine? How does it apply to an individual in a case? How might preemption be avoided by the careful litigant?
Copyright Preemption
Before going into the relevant case, copyright preemption is a doctrine in copyright law, with Section 301 dictating that in cases where a personal right and copyrights may clash, the Copyright Act will take precedence, and other rights will be preempted by the copyright. Included in a “copyright” are rights against reproduction, as well as a right to control distribution, derivative works, and publication of works, in addition to others. This would also mean that preemption would cover far more than what is protected by copyright. This has the effect of removing the basis for a lawsuit as the plaintiff may not have a right in the copyrighted work.
Using the hypothetical above, if a subject of a photograph attempted to sue for the distribution of a photograph, preemption would ruin the lawsuit. They could not have a copyright in every photograph that could ever be taken of them, so they would no longer have any way to argue against it. To save the lawsuit, the litigant would have to prove an extra element, establishing a right not currently protected by copyright. A classic example of this is a contractual relationship, where the contractual relationship and the damages for breach are what the remedy is for, and not specifically any of the rights listed in Section 106 of the Copyright Act.
Maloney v. T3 Media, Inc.
In the case that had inspired the hypothetical, on April 5, 2017, a group of college athletes sued T3 Media for its licensing of their images. While the licenses were supposed to be for non-commercial purposes, other companies licensed the same images, and used them to make video game characters based on those athletes. This prompted a right of publicity lawsuit. However, in the court’s ruling, it was determined that the rights were preempted by the copyrights of T3 Media in the photographs. The logic behind this was not the right pursued, but the effect the lawsuit would have on the right. Under this ruling, because the athletes’ lawsuit would prohibit the distribution of the images, then this would trigger preemption, and remove any rights for the athletes to file a legal action.
Presuming this interpretation of preemption persists, then the need to properly establish rights beyond copyright, and fully laying out the effect it may have on a right should be considered by a plaintiff before filing a legal action.
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