## Facts

- Texas blues musicians, producers, and heirs alleged unauthorized commercial use of their names, photographs, likenesses, and biographical material in marketing vintage recordings.
- A producer (Ames), doing business as Clarity Music and Home Cooking Records, licensed master sound recordings to a label (Collectibles) around 1990.
- The license agreements purported to grant Collectibles rights to use performers’ names and likenesses; Ames warranted he could convey those rights.
- Collectibles manufactured and distributed CDs and cassettes from the masters and issued catalogs using performers’ names and sometimes photos.
- Ames also sold posters and videotapes bearing performers’ names or likenesses.
- Plaintiffs sued in federal court asserting copyright infringement, Lanham Act violations, and Texas misappropriation of name or likeness.
- The district court dismissed certain state tort claims as preempted and dismissed unregistered copyright claims without prejudice; remaining claims proceeded to trial.
- The jury found for defendants on the Lanham Act claims but found Ames and Collectibles liable for copyright infringement and Texas misappropriation, awarding damages; the district court entered judgment.
- Ames and Collectibles appealed, primarily arguing that the Texas misappropriation claims were preempted by 17 U.S.C. § 301.

## Issues

1. Whether Copyright Act § 301 preempts Texas misappropriation-of-name-or-likeness claims based on use of performers’ identities to market sound recordings.
2. Whether the evidence supported liability and damages for misappropriation as to particular plaintiffs and particular marketing uses (including Collectibles’ catalogs).

## Decision

- The Fifth Circuit affirmed the judgment for plaintiffs on the Texas misappropriation claims and rejected § 301 preemption.
- The court held that performers’ names and likenesses, as such, are not copyrightable subject matter and that the Texas tort includes elements not equivalent to copyright’s exclusive rights.
- The court upheld the jury’s findings and damages on the misappropriation claims, subject only to limited case-specific adjustments not altering the core holdings.
- Certiorari was denied.

## Legal Principles

- Section 301 preempts a state-law claim only if (1) the claim concerns subject matter within 17 U.S.C. §§ 102–103 and (2) the state-law rights are equivalent to the exclusive rights in 17 U.S.C. § 106.
- A person’s name and likeness, standing alone, are not within the subject matter of copyright for § 301 purposes.
- Texas misappropriation (right of publicity) requires unauthorized use of a person’s name or likeness for the defendant’s advantage or benefit (subject to limits such as news/public affairs), which is qualitatively different from rights to reproduce, distribute, perform, display, or prepare derivative works.
- A state claim targeting commercial exploitation of identity is not preempted merely because it arises in connection with marketing copyrighted or copyright-related works.

## Conclusion

The Fifth Circuit held that Texas misappropriation-of-name-or-likeness claims based on commercial use of performers’ identities to market recordings are not preempted by the Copyright Act because identity is not copyright subject matter and the state tort requires additional elements beyond copyright equivalence; the court largely affirmed liability and damages against the producer and label.


Brown v. Ames, 201 F.3d 654 (5th Cir. 2000), cert. denied, 531 U.S. 925 (2000)