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By Eriq Gardner, The Hollywood Reporter
A three judge panel at the 8th Circuit echoes the conclusion from the district judge that Ray’s state-based claims are preempted by federal copyright law. In doing so, the judges imply a test where plaintiffs can only avoid preemption by going beyond an attempt to stop the rebroadcast of copyrighted content to allege something more about the use of their name or image. Here, for instance, the opinion notes that “ESPN did not use Ray’s likeness or name in an advertisement without his permission to promote its commercial products, and, as the district court correctly noted, Ray’s ‘likenesses could not be detached from the copyrighted performances that were contained in the films.'”
Maybe more importantly, the ruling comes as ESPN, CBS, Fox, ABC and NBC are involved in a legal battle over the publicity rights of college athletes. A judge’s decision last year that shrugged off the release forms that athletes sign as a condition of their participation in college athletics paved the way for athletes to go after the broadcasters directly, but the defendants have various arguments on why the lawsuit should fail. Among them, that copyright preempts the publicity right claims.
An opinion at the 8th Circuit holds no precedential weight in Tennessee, where the legal battle over college athlete publicity rights is taking place, and there could be other factors that distinguish the alleged exploitation of college basketball and football players with the alleged exploitation of professional wrestlers, but nevertheless, it’ll be a welcomed ruling for the broadcasters.