Patrick Maloney v. T3media, Inc. , 853 F.3d 1004 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK MALONEY, on behalf No. 15-55630
of himself and all others
similarly situated; TIM JUDGE, D.C. No.
on behalf of himself and all 2:14-cv-05048-AB-VBK
others similarly situated,
Plaintiffs-Appellants,
OPINION
v.
T3MEDIA, INC., DBA
Paya.com, a Colorado
corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Argued and Submitted February 17, 2017
Pasadena, California
Filed April 5, 2017
2 MALONEY V. T3MEDIA, INC.
Before: MILAN D. SMITH, JR. and JOHN B. OWENS,
Circuit Judges, and EDWARD R. KORMAN, *
District Judge.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY **
California Anti-SLAPP Statute / Copyright Act
The panel affirmed the district court’s order granting
T3Media’s special motion to strike, pursuant to California’s
anti-SLAPP statute, the action brought by plaintiffs/former
student-athletes Patrick Maloney and Tim Judge, alleging
that T3Media exploited their likenesses commercially.
Plaintiffs alleged that T3Media exploited their likenesses
by selling non-exclusive licenses permitting consumers to
download photographs from the National Collegiate Athletic
Association’s Photo Library for non-commercial use.
Plaintiffs asserted statutory and common law publicity-right
claims and an unfair competition claim under California law.
The California anti-SLAPP statute, Cal. Civ. Proc. Code
§ 425.16, was enacted to allow for early dismissal of
meritless first amendment cases aimed at chilling expression
though litigation.
*
The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MALONEY V. T3MEDIA, INC. 3
Section 301 of the federal Copyright Act adopted a two-
part test to determine whether a state law claim was
preempted by the Act; first, whether the subject matter of the
state claim fell within the subject matter of copyright, as
described in 17 U.S.C. §§ 102 and 103; and second, if so,
whether the rights asserted under state law were equivalent
to the rights contained in 17 U.S.C. § 106.
At step one of the Copyright Act test, the panel held that
the subject matter of the state law claims fell within the
subject matter of copyright. Specifically, the panel held that
a publicity-right claim may proceed when a likeness is used
non-consensually on merchandise or in advertising; but
where a likeness has been captured in a copyrighted artistic
visual work and the work itself is being distributed for
personal use, a publicity-right claim is little more than a
thinly-disguised copyright claim because it seeks to hold a
copyright holder liable for exercising his exclusive rights
under the Copyright Act. The panel concluded that
plaintiffs’ publicity-right claims and the derivative Unfair
Competition Law claim challenged control of the artistic
work itself, and accordingly, the subject matter of the state
law claims fell exclusively within the subject matter of
copyright.
At step two, the panel held that the rights plaintiffs
asserted were equivalent to rights within the general scope
of copyright.
The panel concluded that plaintiffs’ state law claims
were preempted by section 301 of the federal Copyright Act
because plaintiffs sought to hold T3Media liable for
exercising rights governed exclusively by copyright law.
The panel further held that plaintiffs could not demonstrate
a reasonable probability of prevailing on their challenged
4 MALONEY V. T3MEDIA, INC.
claims; and the district court did not err in granting the
special motion to strike, and dismissing without leave to
amend.
COUNSEL
John M. DeStefano (argued), Robert B. Carey, and Leonard
W. Aragon, Hagens Berman Sobol Shapiro LLP, Phoenix,
Arizona, for Plaintiffs-Appellants.
Kelli L. Sager (argued), Karen A. Henry, Eric M. Stahl, and
Diana Palacios, Davis Wright Tremaine LLP, Los Angeles,
California, for Defendant-Appellee.
Michael Rubin and P. Casey Pitts, Altshuler Berzon LLP,
San Francisco, California, for Amici Curiae the National
Football League Players Association, the Major League
Baseball Players Association, the National Hockey League
Players’ Association, the National Basketball Players
Association, and the Major League Soccer Players Union.
Sean Sansiveri, Washington, D.C., as and for Amicus Curiae
National Football League Players Association.
David Prouty, New York, New York, as and for Amicus
Curiae Major League Baseball Players Association.
Don Zavelo, Toronto, Ontario, as and for Amicus Curiae
Counsel National Hockey League Players’ Association.
Gary Kohlman, New York, New York, as and for Amicus
Curiae National Basketball Players Association.
MALONEY V. T3MEDIA, INC. 5
Jon Newman, Sherman Dunn Cohen Leifer & Yellig P.C.,
Washington, D.C., for Amicus Curiae Major League Soccer
Players Union.
Nancy E. Wolff, Cowan DeBaets Abrahams & Sheppard
LLP, New York, New York, for Amici Curiae Associated
Press, Digital Media Licensing Association, Getty Images
(US), Inc., Graphic Artists Guild, National Press
Photographers Association, Inc., PhotoShelter, Inc.,
Professional Photographers of America, Shutterstock, Inc.
and Zuma Press, Inc.
Bruce D. Brown and Gregg P. Leslie, Reporters Committee
for Freedom of the Press, Washington, D.C., for Amici
Curiae the Reporters Committee for Freedom of the Press
and 22 Media Organizations.
OPINION
M. SMITH, Circuit Judge:
Former student-athletes Patrick Maloney and Tim Judge
allege that defendant T3Media, Inc. (T3Media) exploited
their likenesses commercially by selling non-exclusive
licenses permitting consumers to download photographs
from the National Collegiate Athletic Association’s
(NCAA) Photo Library for non-commercial art use.
Maloney and Judge assert statutory and common law
publicity-right claims and an unfair competition claim under
California law. The district court held that the federal
Copyright Act preempts plaintiffs’ claims and granted
T3Media’s special motion to strike pursuant to California’s
anti-SLAPP statute. We affirm.
6 MALONEY V. T3MEDIA, INC.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
Plaintiffs Patrick Maloney and Tim Judge are former
NCAA student-athletes who played for the Catholic
University (CU) men’s basketball team between 1997 and
2001. In their final year at CU, they made it all the way to
the Division III national championship game, and helped
lead the underdog Cardinals to an upset 76-62 victory over
the William Paterson University Pioneers. The game’s
drama was captured in a series of photographs depicting the
plaintiffs in play, and later posing as members of the team
with CU’s first-ever national championship trophy. The
NCAA owns or controls the copyright to these photographs.
It accordingly placed them into its collection, the NCAA
Photo Library.
T3Media provides storage, hosting, and licensing
services for a wide variety of digital content. In 2012, it
contracted with the NCAA to store, host, and license the
images in the NCAA Photo Library. The NCAA Photo
Library itself contains thousands of photographs chronicling
seventy years of NCAA sports history. Until 2014, T3Media
made the photographs available to the public through its
website, Paya.com.
Consumers could view digital thumbnails of the images
contained in the NCAA Photo Library on Paya.com, and
obtain for $20 to $30 a non-exclusive license permitting
them to download a copy of a chosen photograph. Brief
descriptions of the events depicted in the images
MALONEY V. T3MEDIA, INC. 7
accompanied the digital thumbnails.1 Users were also
required to assent to a “Content License Agreement” in order
to download one of the photographs. Pursuant to that
agreement, consumers could “use a single copy of the image
for non-commercial art use.” Consumers did not obtain “any
right or license to use the name or likeness of any individual
(including any athlete, announcer, or coach) appearing in the
Content in connection with or as an express or implied
endorsement of any product or service.”
B. Procedural History
Plaintiffs commenced this action in the Central District
of California in June 2014. They allege that T3Media
exploited their names and likenesses commercially by
selling photographs on Paya.com depicting their 2001
triumph. They purport to represent a putative class “of all
current and former NCAA student-athletes whose names,
images, and likenesses have been used without their consent
by [T3Media] for the purpose of advertising, selling, or
soliciting purchases of the photographs themselves.” The
complaint asserts claims for violation of California’s
statutory right of publicity, Cal. Civ. Code § 3344, common
1
For example, the caption accompanying a picture of Magic
Johnson provided: “Michigan State’s Earvin ‘Magic’ Johnson (33) looks
pleased with his performance during the NCAA National Basketball
Championships in Salt Lake City, UT, Special Events Center. Johnson
was named Most Outstanding Player during the tournament with 17
rebounds and 53 points. Michigan State defeated Indiana State 75-64 to
win the title.”
8 MALONEY V. T3MEDIA, INC.
law right of publicity, and Unfair Competition Law (UCL),
Cal. Bus. & Prof. Code § 17200 et seq. 2
In October 2014, T3Media moved to strike the complaint
pursuant to California’s anti-SLAPP statute. Cal. Civ. Proc.
Code § 425.16. T3Media argued that the federal Copyright
Act preempts plaintiffs’ claims, that they are barred by the
First Amendment, and that California’s statutory exemption
for news, public affairs, or sports broadcasts or accounts
precludes liability for any publicity-right violations. The
district court granted T3Media’s motion to strike on March
6, 2015, holding that the Copyright Act preempts plaintiffs’
claims, and declining to reach the other defenses.
According to the district court, the plaintiffs asserted
rights that fell within the subject matter of copyright because
their claims derived from the licensing of copyrighted
photographs, which were original works of authorship fixed
in a tangible medium of expression under the circumstances.
The court rejected plaintiffs’ argument that a publicity-right
claim involving a photograph is not subject to preemption.
It distinguished between claims derived from “selling a
2
“A common law cause of action for appropriation of name or
likeness may be pleaded by alleging (1) the defendant’s use of the
plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness
to defendant’s advantage, commercially or otherwise; (3) lack of
consent; and (4) resulting injury.” Fleet v. CBS, Inc., 50 Cal. App. 4th
1911, 1918 (1996). In addition, “to plead the statutory remedy provided
in Civil Code section 3344, there must also be an allegation of a knowing
use of the plaintiff’s name, photograph or likeness for purposes of
advertising or solicitation or purchases.” Id. Further, “judicial
construction of section 3344 has imposed an additional requirement. A
‘direct’ connection must be alleged between the use and the commercial
purpose.” Id. Lastly, plaintiffs’ UCL claim is derivative of their
publicity-right claims because it invokes alleged publicity-right
violations as its basis.
MALONEY V. T3MEDIA, INC. 9
copyrighted photograph containing an athlete’s likeness,”
which it said require preemption, and claims based on “using
the athlete’s likeness contained in the photograph for some
other purpose,” which it said do not. The district court also
concluded that plaintiffs were asserting rights equivalent to
the exclusive rights contained in the Copyright Act because
they did not identify a use of their names or likenesses
“independent of the display, reproduction, and distribution
of the copyrighted images in which they are depicted.”
Lastly, the district court found that the plaintiffs’ UCL claim
was derivative of the publicity-right claims, and thus
concluded that it failed because the publicity-right claims
were preempted by the Copyright Act. The court denied
plaintiffs’ request for additional discovery because the
identified topics did not bear on the issue of preemption. The
court also acknowledged that plaintiffs had been afforded
“an opportunity to amend and to conduct at least minimal
discovery,” so it struck the complaint without leave to amend
and dismissed the action with prejudice. The court later
awarded attorneys’ fees in T3Media’s favor. Cal. Civ. Proc.
Code § 425.16(c)(1). Plaintiffs filed a timely notice of
appeal on April 24, 2015.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
review the district court’s grant of a special motion to strike
de novo.” Graham-Sult v. Clainos, 756 F.3d 724, 735 (9th
Cir. 2013). “The district court’s decision not to permit
additional discovery pursuant to Federal Rule of Civil
Procedure 56(f) is reviewed for abuse of discretion.”
Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 839 (9th Cir.
2001).
10 MALONEY V. T3MEDIA, INC.
ANALYSIS
California’s anti-SLAPP statute permits defendants to
file a “special motion to strike” any “cause of action against
a person arising from any act of that person in furtherance of
the person’s right of petition or free speech under the United
States Constitution or the California Constitution in
connection with a public issue.” Cal. Civ. Proc. Code
§ 425.16(b)(1). “The anti-SLAPP statute was enacted to
allow for early dismissal of meritless first amendment cases
aimed at chilling expression through costly, time-consuming
litigation.” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir.
2003) (quotation marks omitted). Its “burden-shifting
mechanism” weeds out lawsuits “brought to deter common
citizens from exercising their political or legal rights or to
punish them for doing so.” Manzari v. Associated
Newspapers Ltd., 830 F.3d 881, 887‒88 (9th Cir. 2016)
(internal quotation marks omitted).
At step one of the anti-SLAPP analysis, “the moving
defendant must make a prima facie showing that the
plaintiff’s suit arises from an act in furtherance of the
defendant’s constitutional right to free speech.” Makaeff v.
Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013). At
step two, assuming that showing has been made, the burden
shifts to the plaintiff “to establish a reasonable probability
that it will prevail on its claim[s].” Id.
Here, plaintiffs concede that their suit arises from acts in
furtherance of T3Media’s right to free speech. That
conclusion is sound because their claims stem from the
publication and distribution of expressive photographs over
MALONEY V. T3MEDIA, INC. 11
the Internet. 3 It is thus incumbent on plaintiffs to
demonstrate a reasonable probability of prevailing on their
challenged claims. T3Media insists that feat is impossible
because the federal Copyright Act preempts plaintiffs’
claims. We agree.
Preemption under Section 301 of the Copyright Act
The Copyright Act affords copyright owners the
“exclusive rights” to display, perform, reproduce, or
distribute copies of a copyrighted work, to authorize others
to do those things, and to prepare derivative works based
upon the copyrighted work. 17 U.S.C. § 106. The
copyright, in other words, gives the owner “the right to
control the work,” including the decision whether or not to
3
The anti-SLAPP statute recognizes four categories of protected
speech and petitioning, including “any written or oral statement or
writing made in a place open to the public or a public forum in
connection with an issue of public interest,” Cal. Civ. Proc. Code
§ 425.16(e)(3), and “any other conduct in furtherance of the exercise of
the constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public interest,”
id. § 425.16(e)(4). T3Media’s conduct fits within the former category
because it posted the photographs on Paya.com and “[w]eb sites
accessible to the public . . . are ‘public forums’ for purposes of the anti-
SLAPP statute.” Barrett v. Rosenthal, 40 Cal. 4th 33, 41 n.4 (2006); see
also Safari Club Int’l v. Rudolph, 845 F.3d 1250, 1258‒60 (9th Cir.
2017) (defendant’s posting of video on YouTube satisfied
§ 425.16(e)(4)). T3Media’s conduct also fits within the latter category
because the photographs memorialize cherished moments in NCAA
sports history, and California defines “an issue of public interest”
broadly. See Nygard, Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027,
1042‒44 (2008) (concluding an issue of public interest is “any” issue in
which the public is interested); Rivero v. Am. Fed’n of State, Cty., and
Mun. Emps., AFL-CIO, 105 Cal. App. 4th 913, 920, 924 (2003).
12 MALONEY V. T3MEDIA, INC.
make the work available to the public. Laws v. Sony Music
Entm’t, Inc., 448 F.3d 1134, 1137 (9th Cir. 2006).
Section 301 of the Act seeks “to preempt and abolish any
rights under the common law or statutes of a State that are
equivalent to copyright and that extend to works,” so long as
the rights fall “within the scope of the Federal copyright
law.” H.R. Rep. No. 94-1476, at 130 (1976). “We have
adopted a two-part test,” in accordance with section 301, “to
determine whether a state law claim is preempted by the
Act.” Laws, 448 F.3d at 1137. First, we decide “whether
the ‘subject matter’ of the state law claim falls within the
subject matter of copyright as described in 17 U.S.C. §§ 102
and 103.” Id. Second, assuming it does, we determine
“whether the rights asserted under state law are equivalent to
the rights contained in 17 U.S.C. § 106, which articulates the
exclusive rights of copyright holders.” Id. at 1138.
Here, the parties joust solely with respect to step one and
assert competing rules that seek to define the boundary
between copyright preemption and state law rights of
publicity. Plaintiffs maintain that photograph-based
publicity-right claims categorically fall outside the subject
matter of copyright because such claims protect an
individual’s persona, which itself cannot be fixed in a
tangible medium of expression. T3Media, by contrast,
insists that the publicity right protects against the non-
consensual use of one’s name or likeness on merchandise or
in advertising. T3Media would permit publicity-right claims
to proceed in those contexts, but find preemption where, as
here, a likeness has been captured in an artistic work and the
work itself is being distributed for personal use.
The right of publicity seeks to prevent commercial
exploitation of an individual’s identity without that person’s
MALONEY V. T3MEDIA, INC. 13
consent. See Hilton v. Hallmark Cards, 599 F.3d 894, 910
(9th Cir. 2009) (stating that the “core” of the right of
publicity is preventing “merchandising [of] a celebrity’s
image without that person’s consent”); Facenda v. N.F.L.
Films, Inc., 542 F.3d 1007, 1031 (3rd Cir. 2008) (stating that
the “core” of the publicity right “is the right not to have one’s
identity used in advertising”); Toney v. L’Oreal USA, Inc.,
406 F.3d 905, 910 (7th Cir. 2005) (“The basis of a right of
publicity claim concerns the message—whether the plaintiff
endorses, or appears to endorse the product in question.”).
Mindful of that premise, we conclude that a publicity-right
claim is not preempted when it targets non-consensual use
of one’s name or likeness on merchandise or in advertising.
But when a likeness has been captured in a copyrighted
artistic visual work and the work itself is being distributed
for personal use, a publicity-right claim interferes with the
exclusive rights of the copyright holder, and is preempted by
section 301 of the Copyright Act.
Here, Maloney and Judge do not contend that their
likenesses were ever used on merchandise or in advertising.
They challenge instead the copyright holder’s decision to
distribute the copyrighted images themselves by selling
consumers a non-exclusive license to download a chosen
photograph from the NCAA Photo Library for non-
commercial art use. Under these circumstances, the
publicity-right claims and the derivative UCL claim
challenge “control of the artistic work itself.” Laws, 448
F.3d at 1142. Because plaintiffs seek to hold T3Media liable
for exercising rights governed exclusively by copyright law,
the claims are preempted by section 301 of the Copyright
Act.
14 MALONEY V. T3MEDIA, INC.
We derive these conclusions from the text of the
Copyright Act, our precedents, the reasoning of other
circuits, and a leading copyright treatise.
1. Step One – The subject matter of the state law
claims falls within the subject matter of
copyright.
a. The statutory text and our precedents.
The “subject matter of copyright” embodies “original
works of authorship fixed in any tangible medium of
expression . . . from which they can be perceived,
reproduced, or otherwise communicated, either directly or
with the aid of a machine or device.” 17 U.S.C. § 102(a).
“Works of authorship include,” among other things,
“pictorial” works. Id. §§ 102(a), (a)(5). Additionally, “[a]
work is ‘fixed’ in a tangible medium of expression when its
embodiment in a copy . . . is sufficiently permanent or stable
to permit it to be perceived, reproduced, or otherwise
communicated for a period of time of more than transitory
duration.” Id. § 101.
Here, the publicity-right claims arise from the licensing
of photographs, which plaintiffs concede are expressive
“pictorial” works to which “[a] photographer contributes
some original elements.” 4 There is also no doubt that a
photograph is “sufficiently permanent” to permit it to be
perceived “for more than transitory duration.” 17 U.S.C.
§ 101. The “‘subject matter’ of the state law claim[s]”—the
4
Amici Associated Press et al. insist that “[p]hotographers use their
tools and artistic judgment by manipulating lighting, angle, positioning,
and timing.”
MALONEY V. T3MEDIA, INC. 15
photographs—therefore appears to fall within the subject
matter of copyright. Laws, 448 F.3d at 1137.
Plaintiffs resist this conclusion by drilling down on the
content of a publicity-right claim. Plaintiffs maintain that
the right of publicity—as it pertains to photographs—
protects against exploitation of an individual’s “likeness” or
“persona.” Since those attributes “exist independent of any
single photograph,” plaintiffs argue that photograph-based
publicity-right claims categorically fall outside the “subject
matter of copyright.” In other words, plaintiffs insist they do
not assert any right in the particular photographic “works of
authorship” at issue here. Instead, they claim that “the
personal attributes protected by the right of publicity . . .
cannot be ‘fixed’ in copyrightable form in the same way as
an actor’s performance or an author’s writings.” 5
Plaintiffs draw support for their position primarily from
Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir.
2001). There, clothing retailer Abercrombie & Fitch
developed a surfing theme for its catalog, which was the
company’s “largest advertising vehicle.” Id. at 999. As part
of the campaign, Abercrombie purchased photographs
depicting the plaintiffs taking part in the 1965 Makaha
5
See also MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON
COPYRIGHT § 1.01[B][1][c] (Matthew Bender, Rev. Ed. 2016)
[hereinafter “NIMMER”] (“The ‘work’ that is the subject of the right of
publicity is the persona, i.e., the name and likeness of a celebrity or other
individual. A persona can hardly be said to constitute a ‘writing’ of an
‘author’ within the meaning of the Copyright Clause of the
Constitution.”); J. THOMAS MCCARTHY, THE RIGHTS OF PUBLICITY AND
PRIVACY § 11:52 (2d ed. 2016) [hereinafter “MCCARTHY”] (“The picture
is not the person. . . . There is only one underlying ‘persona’ of a person
protected by the right of publicity. . . . [T]he exact image in [a]
photograph is not the underlying ‘right’ asserted in a right of publicity
case.”).
16 MALONEY V. T3MEDIA, INC.
International Surf Championship in Hawaii. Id. at 1000.
Abercrombie used the photographs in a section of the catalog
entitled “Surf Nekkid.” Id. It also “decided to create t-shirts,
exactly like those worn by the [plaintiffs] in the photograph,
for sale in the upcoming issue.” Id. These “Final Heat Tees”
appeared in the catalog for sale two pages after the pictures
of the plaintiffs. Id. Abercrombie did not obtain at any time
the plaintiffs’ permission to use the photographs in the
catalog. Id.
We held that section 301 of the Copyright Act did not
preempt plaintiffs’ publicity-right claims. Id. at 1005. We
reasoned that “it is not the publication of the photograph
itself, as a creative work of authorship, that is the basis for
[plaintiffs’] claims, but rather, it is the use of the [plaintiffs’]
likenesses and their names pictured in the published
photograph.” Id. at 1003. We observed that “[a] person’s
name or likeness is not a work of authorship within the
meaning of 17 U.S.C. § 102.” Id. at 1004. “This is true,”
we said, “notwithstanding the fact that [plaintiffs’] names
and likenesses are embodied in a copyrightable
photograph.” 6 Id.
6
Downing relied on two other decisions that plaintiffs likewise rely
on here. In Brown v. Ames, 201 F.3d 654 (5th Cir. 2000), a record
company misappropriated “the names and likenesses” of “individual
blues musicians, songwriters, [and] music producers” on the company’s
CD’s, tapes, catalogs, and posters. Id. at 656‒57. The Fifth Circuit
found that preemption does not apply because “the tort of
misappropriation of a name or likeness protects a person’s persona[,]”
and “[a] persona does not fall within the subject matter of copyright.”
Id. at 658. In KNB Enterprises v. Matthews, 78 Cal. App. 4th 362 (2000),
the defendant displayed some of the plaintiff’s erotic photographs on its
website to attract viewers to the site, where it charged customers a
monthly fee to view similar photographs. Id. at 366. The court declined
MALONEY V. T3MEDIA, INC. 17
Contrary to plaintiffs’ argument, Downing did not mint
a categorical rule that publicity-right claims “relating to a
likeness in a photograph” are not subject to preemption.
Instead, we said that when the “use” of a likeness forms the
“basis” of a publicity-right claim, the claim is not preempted.
Downing, 265 F.3d at 1103‒04. We did not state that a
likeness is the “basis” of a publicity-right claim any time it
is fixed in a photograph. The crux of the issue is thus
deciding when a publicity-right claim seeks to vindicate
misuse of an individual’s likeness, as opposed to merely
interfering with the distribution, display, or performance of
a copyrighted work.
On that point, plaintiffs rely almost entirely on the idea
that a theoretical line should separate publicity-right claims
based on photographs from other works protected by the
Copyright Act. They insist that “[a] different preemption
rule applies to right-of-publicity claims arising from
performances in film and sound recordings as opposed to
those arising from a mere likeness in a photograph,” and that
the latter type of claim is not subject to preemption because
“[u]nlike a performance, a person’s mere likeness is not a
copyrightable contribution to a photograph.”
The text of the Copyright Act does not support plaintiffs’
construction. Section 301 draws no distinction among
different types of copyrighted works when it comes to
to find that the plaintiffs’ publicity-right claims were subject to
preemption “because a human likeness is not copyrightable, even if
captured in a photograph.” Id. at 365. Neither decision supports
plaintiffs’ argument here because both cases involve the use of an
individual’s likeness on unrelated merchandise or in advertising.
18 MALONEY V. T3MEDIA, INC.
federal preemption. 7 See 17 U.S.C. § 301(a). It directs
attention to sections 102 and 103, which list the categories
of works in which copyright protection subsists, suggesting
that the same preemption rule applies to all works that are
contained within the “subject matter of copyright.” Id.
§ 102. Given that “pictorial” works appear on that list
alongside “motion pictures” and “sound recordings,” id.
§ 102(a)(5)‒(7), there is no textual basis to carve out a
preemption rule that applies solely to photographs.
Moreover, our precedents clarify that the distinction
pertinent to the preemption of a publicity-right claim is not
the type of copyrightable work at issue, but rather the way in
which one’s name or likeness is affected by the use of the
copyrighted work.
For example, in Downing, the publicity-right claim was
not permitted to proceed simply because an individual’s
likeness was fixed in a photograph. Indeed, it was “not the
publication of the photograph itself, as a creative work of
authorship,” that formed the basis of the publicity-right
7
Section 301(a) provides that
On and after January 1, 1978, all legal or equitable
rights that are equivalent to any of the exclusive rights
within the general scope of copyright as specified by
section 106 in works of authorship that are fixed in a
tangible medium of expression and come within the
subject matter of copyright as specified by sections
102 and 103, whether created before or after that date
and whether published or unpublished, are governed
exclusively by this title. Thereafter, no person is
entitled to any such right or equivalent right in any
such work under the common law or statutes of any
State.
17 U.S.C. § 301(a) (emphasis added).
MALONEY V. T3MEDIA, INC. 19
claim. 265 F.3d at 1103. Instead, it was the unauthorized
“use of the [plaintiffs’] likenesses” to advertise Abercrombie
products, and the creation of “t-shirts, exactly like those
worn by the [plaintiffs] in the photograph, for sale” in
Abercrombie’s catalog. Id. The plaintiffs sustained injury
to their individual “personas” because their likenesses were
exploited commercially without their consent. The plaintiffs
were not seeking to use the right of publicity simply to
prevent “publication” of an artistic, visual work.
Laws bolsters the interpretation that preemption turns on
how a copyrighted photograph is used. In particular, Laws
distinguished Downing as a case “involv[ing] photographs
used in advertising.” Id. at 1141 (emphasis added). We
observed that “Abercrombie went well beyond the mere
republication of the photograph. . . . Rather, it published the
photo in connection with a broad surf-themed advertising
campaign, identified the plaintiffs-surfers by name, and
offered for sale the same t-shirts worn by the plaintiffs in the
photo.” Id. Importantly, we said that “[Abercrombie] had
suggested that the surfers had endorsed Abercrombie’s t-
shirts. Accordingly, [Downing] concluded that ‘it is not the
publication of the photograph itself . . . that is the basis for
[plaintiffs’] claims, but rather, it is the use of the [plaintiffs’]
likenesses and their names pictured in the published
photographs.’” 8 Id. (quoting Downing, 265 F.3d at 1003)
(emphasis added). Laws strongly implies that misuse of an
individual’s likeness is the “basis” of a publicity-right claim
when the name or image is exploited in advertising or on
merchandise. It correspondingly implies that one’s likeness
8
Laws also distinguished Brown—a case plaintiffs rely on—as one
where preemption was not appropriate because the likenesses were used
on “compact disks, tapes, catalogs, and posters.” Laws, 448 F.3d at 1141
(citing Brown, 201 F.3d at 656‒57).
20 MALONEY V. T3MEDIA, INC.
does not form the basis of a publicity-right claim when “the
tort action challenges control of the artistic work itself,” id.
at 1142, or involves “the mere republication of the
photograph,” id. at 1141.
In further support of this interpretation, Laws appears to
reject plaintiffs’ reading of Fleet v. CBS Inc., 50 Cal. App.
4th 1911 (1996). In Fleet, the plaintiffs were actors in a film,
White Dragon, to which the defendant, CBS, Inc., owned the
copyright. Id. at 1914. Having been denied certain
compensation, plaintiffs sued CBS alleging that CBS “did
not have permission to utilize their names, pictures, or
likenesses in conjunction with any exploitation of the film.”
Id. CBS released the film anyway and included a picture of
one of the plaintiffs “on the packaging and [in] advertising
materials.” Id. at 1915. The court held that section 301 of
the Copyright Act preempted the plaintiffs’ publicity-right
claims. Id. at 1919. It “agree[d] that as a general proposition
Civil Code section 3344 is intended to protect rights which
cannot be copyrighted.” Id. But it found that the
“[plaintiffs’] analysis crumbles in the face of one obvious
fact: their individual performances in the film White Dragon
were copyrightable.” Id. Once the “performances were put
on film, they became ‘dramatic work[s]’ ‘fixed in [a]
tangible medium of expression.’” Id. (quoting 17 U.S.C.
§ 102(a)). “At that point,” the court said, “the performances
came within the scope or subject matter of copyright law
protection.” Id. at 1919‒20. Given that the publicity-right
claims sought “only to prevent CBS from reproducing and
distributing [plaintiffs’] performances in the film,” the court
concluded that “the[] claims must be preempted by federal
copyright law.” Id. at 1919.
Maloney and Judge read Fleet’s holding to be limited to
preemption of dramatic performances, and not to include
MALONEY V. T3MEDIA, INC. 21
photographs, because it observes that “[t]he celebrity who
has merely had his picture taken has not engaged in a
‘dramatic work’ or other ‘work of authorship,’ and, as
Professor Nimmer said, would be afforded no protection
under federal copyright law.” Id. at 1920. They believe
Fleet supports their line between photographs and dramatic
performances because Fleet adds “if not for state law, [the
celebrity who had his picture taken] would have no remedy
against those who would misappropriate his image for their
own gain.” Id. (emphasis added). The “state law,” of course,
is the right of publicity, so plaintiffs read Fleet to support a
dichotomy between likenesses in photographs and
likenesses in other copyrightable works.
Laws explains that in Fleet, however, “[s]ince CBS’s use
of plaintiffs’ likenesses did not extend beyond the use of the
copyrighted material it held, there was no right of publicity
at issue, aside from the actors’ performances.” Id. at 1143
(emphasis added). Laws does not read Fleet, as plaintiffs
contend, to draw a line between photographs and
performances. Instead, it endorses the practice of looking at
how one’s likeness is affected by “the use of the copyrighted
material”—whether that material is a photograph or
something else.
Laws itself illustrates the same point. There, Debra Laws
recorded a song, “Very Special,” to which Elektra obtained
the copyright. Id. at 1136. Sony then obtained a license from
Elektra to sample Laws’ recording of “Very Special” in a
song by Jennifer Lopez and L.L. Cool J. Id. After the song
became a hit, Laws brought publicity-right claims alleging
that Sony’s use of “Very Special” misappropriated her name
and voice. Id. We held that section 301 of the Copyright
Act preempted the publicity-right claims. Id.
22 MALONEY V. T3MEDIA, INC.
We distinguished cases where the defendant obtained a
license to a song and then imitated the singer’s voice, which
we said did not necessitate preemption because
misappropriation of the voice itself was the subject of those
publicity-right claims. Id. at 1140‒41. By contrast, we
concluded “it is clear that federal copyright law preempts a
claim alleging misappropriation of one’s voice when the
entirety of the allegedly misappropriated vocal performance
is contained within a copyrighted medium.” Id. at 1141.
Applying that rule, we concluded that Laws’s publicity-right
claim “challenge[d] control of the artistic work itself” and
“could hardly be more closely related to the subject matter
of the Copyright Act” because Sony had merely licensed
copyrighted content and “did not use Laws’s image, name,
or the voice recording in any promotional materials.” Id. at
1142.
Laws is significant in another respect—it considered the
argument “that the subject matter of a copyright claim and a
right of publicity claim are substantively different.” Id. at
1139. Like plaintiffs here, Laws argued “that a copyright
claim protects ownership rights to a work of art, while a right
of publicity claim concerns the right to protect one’s persona
and likeness.” Id. Sony responded that “the subject matter
of a right of publicity [claim] in one’s voice is not different
from a copyright claim when the voice is embodied within a
copyrighted sound recording.” Id. Sony added that “once a
voice becomes part of a sound recording in a fixed tangible
medium it comes within the subject matter of copyright.” Id.
We sided with Sony. We acknowledged that “California
law recognizes an assertable interest in the publicity
associated with one’s voice.” Id. at 1141. But again, we
held “that federal copyright law preempts a claim alleging
misappropriation of one’s voice when the entirety of the
MALONEY V. T3MEDIA, INC. 23
allegedly misappropriated vocal performance is contained
within a copyrighted medium.” Id.
Finally, our most recent decision in this area further
buttresses the concept that whether a right of publicity claim
is preempted turns on the way in which one’s name or
likeness is affected by the use of a copyrighted work. In
Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d
1146 (9th Cir. 2010), an actor who retained the copyright to
the adult films in which he performed sued a video company
for “replic[ating] and distribut[ing] a number of [his]
copyrighted DVDs without license or authority.” Id. at
1151. The actor brought publicity-right claims alleging that
the defendants “misappropriated his name and ‘persona,’ in
addition to his dramatic performance.’” Id. at 1153. The
actor contended that his publicity rights were offended by
the “unauthorized reproduction, counterfeiting, and sale” of
his copyrighted works. Id. Thus, he maintained, “the factual
basis of his right of publicity claim was the unauthorized
reproduction of his performance on the DVDs.” Id. at 1154.
We held that the Copyright Act preempted the publicity-
right claims because the actor’s assertion that “defendants
misappropriated his name and persona [wa]s based entirely
on the misappropriation of the DVDs and [the actor’s]
performance therein.” Id. at 1153. In other words, the actor
was objecting to the unauthorized distribution and
republication of a copyrighted work, not the exploitation of
his likeness on an unrelated product or in advertising. We
also considered the actor’s argument “that it is the use of his
name and likeness on the covers of the counterfeit DVDs that
violated his right of publicity.” Id. at 1154. We concluded
that even under that theory, the publicity-right claims would
still be preempted because “the pictures on the covers of the
24 MALONEY V. T3MEDIA, INC.
DVDs are ‘still shots’ of the copyrighted video
performance.” Id.
In sum, our cases clarify that a publicity-right claim may
proceed when a likeness is used non-consensually on
merchandise or in advertising. But where a likeness has
been captured in a copyrighted artistic visual work and the
work itself is being distributed for personal use, a publicity-
right claim is little more than a thinly disguised copyright
claim because it seeks to hold a copyright holder liable for
exercising his exclusive rights under the Copyright Act. 9
b. Persuasive authority.
A trio of cases out of the Third and Eighth Circuits lends
further support to this conclusion. In Facenda v. N.F.L.
Films, Inc., 542 F.3d 1007 (3rd Cir. 2008), the Third Circuit
considered a clash between “the right of publicity” and “the
exploitation of a defendant’s copyright.” Id. at 1028. The
plaintiff had narrated several NFL films, and the defendant
repurposed some of those copyrighted clips for use “in a
cable-television production about the football video game
‘Madden NFL 06.’” Id. at 1011. Consistent with our
holding that there is no categorical preemption rule
separating photographs from everything else, the court stated
that “[w]here a defendant in a right-of-publicity claim
9
The fact that the non-exclusive licenses were sold for a profit and
their price does not alter our analysis. The copyrighted works in Laws
and Jules Jordan were also sold, but the publicity-right claims were still
preempted. See Laws, 448 F.3d at 1136; Jules Jordan, 617 F.3d at 1150‒
51. More to the point, T3Media’s decision to license expressive works
for a fee does not change the fact that the publicity-right claims target
the display and distribution of copyrighted photographs for personal use.
Moreover, copyright holders are allowed to commercially exploit their
copyrights by exercising their exclusive rights under the Copyright Act.
MALONEY V. T3MEDIA, INC. 25
obtained a copyright in a work featuring the plaintiff, courts
must separate legitimate exploitations of what Congress
intended to be a copyright holder’s exclusive rights from
particular uses that infringe the right of publicity.” Id. at
1028 (emphasis added).
Turning to that task, the court observed that “when
defendants use the work ‘for the purposes of trade,’ such as
in an advertisement, plaintiffs’ right-of-publicity claims
have not been held to be preempted.” Id. at 1029 (citing
NIMMER § 1.01[B][3][b][iv][l]). Conversely, “when
defendants’ uses constitute ‘expressive works,’ right-of-
publicity claims have been preempted.” Id.
Applying that distinction, the Third Circuit concluded
that preemption was not appropriate because “[t]he NFL
used the sound recordings of [the plaintiff’s] voice in a
television production promoting the video game.” Id. at
1030. This was “akin to advertising,” id., and the “core” of
the publicity right, according to the court, “is the right not to
have one’s identity used in advertising.” 10 Id. at 1031.
10
The Third Circuit also “emphasize[d] that courts must
circumscribe the right of publicity so that musicians, actors, and other
voice artists do not get a right that extends beyond commercial
advertisements to other works of artistic expression.” Facenda, 542 F.3d
at 1032. Should courts neglect that task, then “[i]n addition to
copyrights, entertainment companies would need additional licenses for
artists’ rights of publicity in every case.” Id. Facenda proceeded with
the above analysis under the banner of “conflict preemption,” but it
treated the framework as similarly applicable to the context of express
preemption under section 301. See id. at 1029 n.13. As to express
preemption, Facenda found the publicity-right claim was directed to the
plaintiff’s actual voice, and thus fell outside the subject matter of
copyright. Id. at 1027‒28.
26 MALONEY V. T3MEDIA, INC.
In Ray v. ESPN, Inc., 783 F.3d 1140 (8th Cir. 2015), the
Eighth Circuit applied the same distinction that guided the
Third Circuit in Facenda. The plaintiff in Ray was a
professional wrestler whose matches were filmed. Id. at
1141. Defendant ESPN re-telecast those films without
obtaining the plaintiff’s consent. Id. at 1141‒42. The court
found that the filming of the plaintiff’s wrestling
performances “clearly generated” an original work of
authorship fixed in a tangible medium of expression. Id. at
1143. It thus concluded that the subject matter of the
publicity-right claim fell within the subject matter of
copyright because the claim was based on the distribution of
copyrighted material. Id. In response to the plaintiff’s
argument that misuse of his likeness was the “true focal
point” of the case, the court maintained that the publicity-
right claim was preempted because “ESPN did not use [the
plaintiff’s] likeness or name in an advertisement without his
permission to promote its commercial products.” Id. at
1143‒44 (internal quotation mark omitted).
A year later, the Eighth Circuit revisited the issue in
Dryer v. National Football League, 814 F.3d 938 (8th Cir.
2016). There, three NFL players argued that their publicity
rights were violated by use of their game footage in various
NFL films, which subsequently were licensed and broadcast
to the public. Id. at 941. They maintained that their
“performances in football games” were “part of their
identities rather than ‘fixed’ works eligible for copyright
protection.” Id. at 942. The court acknowledged that
athletic performances are not copyrightable, but found “the
Copyright Act specifically includes within its purview fixed
MALONEY V. T3MEDIA, INC. 27
recordings of such live performances.” 11 Id. Continuing,
the court observed that “a right-of-publicity suit challenging
the use of a copyrighted work in a commercial advertisement
could have purposes unrelated to the aims of copyright law.”
Id. at 943 (emphasis added). But it said that “[w]hen a right-
of-publicity suit challenges the expressive, non-commercial
use of a copyrighted work, . . . that suit seeks to subordinate
the copyright holder’s right to exploit the value of that work
to the plaintiff’s interest in controlling the work’s
dissemination.” Id. Because the plaintiffs “d[id] not
challenge the NFL’s use of their likenesses or identities in
any context other than the publication of th[e] game
footage,” the court held that the right-of-publicity claims fell
within the subject matter of copyright. Id. at 942.
A leading copyright treatise invoked by the Third and
Eighth Circuits further bolsters our conclusion. Nimmer on
Copyright suggests that the right of publicity should be
construed in accordance with the Restatement of Unfair
Competition, “which limits liability to misappropriation for
the purposes of trade.” See NIMMER § 1.01[B][3][b][iv]
(internal quotation marks omitted). According to the
Restatement, “[t]he name, likeness, and other indicia of a
person’s identity are used ‘for purposes of trade’” if they are
used “in advertising the user’s goods or services, or are
placed on merchandise marketed by the user, or are used in
connection with services rendered by the user.” Restatement
11
This holding belies plaintiffs’ assertion that their claims should
not be preempted because one’s likeness is not a “copyrightable
contribution to photograph.” In Dryer, the athletic performances were
likewise not copyrightable contributions, but the claims still fell within
the purview of copyright because the performances were fixed in a
film—a tangible medium of expression.
28 MALONEY V. T3MEDIA, INC.
(Third) of Unfair Competition § 47. Use for “purposes of
trade” would not ordinarily include “the use of a person’s
identity in news reporting, commentary, entertainment,
works of fiction or nonfiction, or in advertising that is
incidental to such uses.” Id.
The “use for trade” considerations can almost perfectly
distinguish between the cases finding preemption 12 and
those permitting publicity-right claims to proceed. 13 As our
precedents reflect, the crucial distinction is not between
12
The cases finding preemption concern the display or reproduction
of copyrighted expressive works. See, e.g., Jules Jordan, 617 F.3d at
1150–51 (distribution of film in which plaintiff acted); Laws, 448 F.3d
at 1136 (licensing of song in which plaintiff sang); Fleet, 50 Cal. App.
4th at 1914 (distribution of movie in which plaintiff acted).
13
These cases involved an imitation of Bette Midler’s voice to
advertise Ford Cars, Midler v. Ford Motor Co., 849 F.2d 460, 461 (9th
Cir. 1988), an imitation of Tom Waits’ voice to advertise Doritos, Waits
v. Frito-Lay, Inc., 978 F.2d 1093, 1096 (9th Cir. 1992), a robot
resembling Vanna White to advertise televisions, White v. Samsung
Elecs. Am., Inc., 971 F.2d 1395, 1396 (9th Cir. 1992), robots resembling
characters from Cheers used to draw customers to a bar, Wendt v. Host
Int’l, Inc., 125 F.3d 806, 809 (9th Cir. 1997), a photograph of a model
used to advertise hair products, Toney v. L’Oreal USA, Inc., 406 F.3d
905, 907 (7th Cir. 2005), a photograph of surfers used to advertise and
sell Abercrombie clothes, Downing, 265 F.3d at 999–1000, images of
The Three Stooges used to sell t-shirts, Comedy III Prods., Inc. v. Gary
Saderup, Inc., 25 Cal. 4th 387, 393 (2001), use of an announcer’s voice
to promote a video game, Facenda, 542 F.3d at 1011, and use of student-
athlete likenesses to sell a video game, Keller v. Elec. Arts Inc. (In re
NCAA Student-Athlete Name & Likeness Licensing Litigation), 724 F.3d
1268, 1271 (9th Cir. 2013).
MALONEY V. T3MEDIA, INC. 29
categories of copyrightable works, but how those
copyrighted works are used. 14
c. Application
As noted, Maloney and Judge do not allege that their
names and likenesses were ever used in connection with the
sale of any merchandise. Nor do they contend that their
likenesses were ever used in any advertising. Instead, the
copyrighted images themselves were licensed to individuals
for “non-commercial art use.” Moreover, the licensees of
the Maloney and Judge photos did not obtain “any right or
license to use the name or likeness of any individual . . . in
connection with or as an express or implied endorsement of
any product or service.”
Plaintiffs’ publicity-right claims and the derivative UCL
claim challenge “control of the artistic work itself.” Laws,
448 F.3d at 1142. Pursuant to Laws, the subject matter of
the state law claims therefore falls within the subject matter
of copyright.
We believe that our holding strikes the right balance by
permitting athletes to control the use of their names or
14
The McCarthy treatise echoes this conclusion. See MCCARTHY
§ 11:52 (“In some unusual cases, the use of an image of a person may be
preempted by copyright law because the only use the defendant is
charged with is copying or selling the image itself with no use in
advertising and no use to enhance a separate product. For example, a
photo archive that merely sells reproductions of photos of athletes is not
infringing the right of publicity of the pictured athletes. Since the vast
majority of athletes (both professional and amateur) do not own
copyright in such photos, they have no right to control the mere
reproduction and sale of their photos per se.”).
30 MALONEY V. T3MEDIA, INC.
likenesses on merchandise or in advertising, while
permitting photographers, the visual content licensing
industry, art print services, the media, and the public, to use
these culturally important images for expressive purposes.
Plaintiffs’ 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. 15
2. Step Two – The rights plaintiffs assert are
equivalent to rights within the general scope
of copyright.
At the second step, we determine whether the rights
plaintiffs assert under state law are “equivalent to rights
within the general scope of copyright as specified by section
106 of the Copyright Act.” Laws, 448 F.3d at 1143 (quoting
Del Madera Props. v. Rhodes & Gardner, 820 F.2d 973, 977
(9th Cir. 1987)). Section 106 affords copyright owners the
“exclusive rights” to display, perform, reproduce, or
distribute copies of a copyrighted work, to authorize others
to do those things, and to prepare derivative works based
upon the copyrighted work. 17 U.S.C. § 106. “To survive
preemption, the state cause of action must protect rights
which are qualitatively different from the copyright rights.
The state claim must have an extra element which changes
15
Notably, Laws expressed a similar concern when describing Fleet.
It said that “the plaintiffs’ right of publicity claim was a question of
control over the distribution . . . of a movie CBS owned.” 448 F.3d at
1143. Thus, “[h]ad the court [not found preemption], each actor could
claim that any showing of the film violated his right to control his image
and persona.” Id. We are similarly mindful of the potential for that
outcome here.
MALONEY V. T3MEDIA, INC. 31
the nature of the action.” Laws, 448 F.3d at 1143 (quoting
Del Madera, 820 F.2d at 977).
As a threshold matter, plaintiffs waived any argument
that the rights they assert are not equivalent to rights within
the general scope of copyright. They did not argue the issue
in their briefs, and we do not review issues raised only by
amicus curiae. Russian River Watershed Prot. Comm. v.
City of Santa Rosa, 142 F.3d 1136, 1141 (9th Cir. 1998).
Even had they made the argument, the district court
nonetheless was correct to conclude that the rights plaintiffs
assert are no different than the rights contained within the
general scope of the Copyright Act.
The complaint asserts statutory and common law
publicity-right claims, and a claim for a violation of the
UCL. Plaintiffs, however, do not identify any use of their
likenesses independent of the display, reproduction, and
distribution of the copyrighted material in which they are
depicted. We have held that under those circumstances,
none of plaintiffs’ claims is qualitatively different from a
copyright claim. See Laws, 448 F.3d at 1144 (holding that
“[t]he mere presence of an additional element (‘commercial
use’) in section 3344 is not enough to qualitatively
distinguish [a] right of publicity claim from a claim in
copyright”); see also id. at 1143‒44 (“squarely reject[ing]”
the argument that a UCL claim is qualitatively different than
a copyright claim under circumstances analogous to here). 16
16
The elements of a common law right-of-publicity claim are
subsumed within those of a statutory claim. See Fleet, 50 Cal. App. 4th
at 1918. Thus, Laws necessarily concluded that the singer’s common
law publicity-right claim asserted rights equivalent to copyright rights.
See Laws, 448 F.3d at 1136 (noting singer brought both statutory and
common law publicity-right claims).
32 MALONEY V. T3MEDIA, INC.
CONCLUSION
Under the circumstances presented here, the “‘subject
matter’ of the state law claim[s] falls within the subject
matter of copyright” and “the rights asserted under state law
are equivalent to the rights contained in 17 U.S.C. § 106.”
Laws, 448 F.3d at 1137, 1138. The federal Copyright Act
therefore preempts the plaintiffs’ publicity-right claims and
the derivative UCL claim. In light of that holding, plaintiffs’
cannot demonstrate a reasonable probability of prevailing on
their challenged claims. The district court did not err in
granting T3Media’s special motion to strike.17
We AFFIRM the district court’s order granting
T3Media’s special motion to strike and dismissing plaintiffs’
claims without leave to amend. Appellants shall bear costs
on appeal. Fed. R. App. P. 39(a)(2).
17
The district court also did not abuse its discretion in deciding not
to permit additional discovery. The identified topics did not bear on the
issue of preemption. Moreover, given that the claims are preempted, any
additional discovery would have been futile. We also do not reach
T3Media’s other asserted defenses in light of our holding regarding
preemption.