## Facts

- A production company associated with Robert Fleet and Alina Szpak‑Fleet produced a motion picture initially titled *White Dragon* (later released as *The Legend of the White Horse*).
- CBS entered a distribution agreement granting it exclusive worldwide distribution rights (with limited territorial exceptions) in all media for approximately $1.25 million.
- Stephan Fleet (a minor) and Archie Lee Simpson acted in the film during principal photography beginning in 1985.
- Completion and financing disputes led to litigation among production participants, including an injunction that plaintiffs claimed prevented them from contacting CBS for a period.
- CBS ultimately distributed the film on home video and used a picture of Stephan Fleet on the videocassette packaging.
- Plaintiffs sued CBS under California Civil Code § 3344, alleging misappropriation of their name, image, likeness, or identity through CBS’s exploitation of the film and related packaging without additional authorization or compensation.

## Issues

1. Whether a California Civil Code § 3344 misappropriation/right-of-publicity claim is preempted by 17 U.S.C. § 301 when the only alleged exploitation is distribution and marketing of the actor’s performance as fixed in a motion picture.
2. Whether use of an actor’s image on packaging for the motion picture supplies an “extra element” sufficient to avoid copyright preemption when tied to distribution of the copyrighted film.

## Decision

- The Court of Appeal affirmed summary judgment for CBS.
- The court held that, as pleaded, plaintiffs’ § 3344 claim was preempted by federal copyright law because the alleged exploitation occurred through distribution and marketing of the copyrighted motion picture embodying plaintiffs’ performances.
- The court concluded plaintiffs identified no qualitatively different “extra element” beyond rights equivalent to copyright’s reproduction, distribution, and display rights.

## Legal Principles

- Under 17 U.S.C. § 301, a state-law claim is preempted when (1) it concerns subject matter within copyright and (2) it asserts rights equivalent to the exclusive rights protected by copyright.
- An actor’s performance fixed in a motion picture falls within copyright’s subject matter for § 301 purposes when the complaint targets use of the performance as embodied in the film.
- A right-of-publicity claim under California Civil Code § 3344 is preempted when it functionally seeks to control or obtain compensation for distribution, reproduction, or display of a copyrighted audiovisual work.
- Avoiding preemption requires an “extra element” that changes the nature of the claim (e.g., independent commercial use of identity unrelated to exploitation of the copyrighted work, or a distinct false endorsement theory); mere relabeling as misappropriation of identity is insufficient.
- Disputes about compensation for acting services or production arrangements sound in contract or related theories and do not convert downstream distribution of a copyrighted film into a non-preempted § 3344 claim.

## Conclusion

Because plaintiffs’ alleged injury arose from CBS’s distribution and packaging of the motion picture embodying their performances, the asserted § 3344 right-of-publicity claim sought rights equivalent to those protected by federal copyright and was therefore preempted, making summary judgment for CBS proper.


Fleet v. CBS, Inc., 50 Cal. App. 4th 1911 (Ct. App. 1996)