## Facts

- Patrick Maloney and Tim Judge were NCAA Division III basketball players photographed during the 2001 NCAA Division III national championship game.
- The NCAA owned or controlled copyrights in the game photographs and authorized T3Media, Inc. to host, display, and license the images through an online photo library.
- T3Media sold nonexclusive licenses allowing consumers to download digital copies of the photographs for personal, noncommercial “art” use.
- T3Media’s terms prohibited commercial uses such as advertising or product endorsements.
- Maloney and Judge alleged T3Media commercially exploited their likenesses by selling downloads of photographs depicting them without their consent, asserting California statutory and common-law right of publicity claims and an unfair competition claim.
- The district court granted T3Media’s special motion to strike under California’s anti-SLAPP statute, concluding the claims were preempted by the Copyright Act.
- On appeal, plaintiffs conceded the claims arose from protected speech activity, leaving preemption and the resulting ability to show a probability of prevailing as the central dispute.

## Issues

1. Whether the challenged conduct involved works within the subject matter of copyright under 17 U.S.C. § 301(a) when the claims targeted copyrighted photographs depicting the plaintiffs.
2. Whether plaintiffs’ asserted publicity and unfair-competition rights were equivalent to rights protected by the Copyright Act, making the claims preempted.
3. Whether, given protected-activity status under the anti-SLAPP statute, plaintiffs could show a reasonable probability of prevailing despite federal preemption.

## Decision

- The Ninth Circuit affirmed the order granting T3Media’s anti-SLAPP motion to strike.
- The court held the Copyright Act preempted the California statutory right of publicity, common-law misappropriation/right of publicity, and derivative unfair competition claims.
- Because the claims were preempted, plaintiffs could not demonstrate a reasonable probability of prevailing as required at the second step of the anti-SLAPP analysis.

## Legal Principles

- Copyright Act preemption under 17 U.S.C. § 301 applies when (1) the work at issue falls within copyright’s subject matter and (2) the state-law rights asserted are equivalent to exclusive rights within the general scope of copyright.
- Photographs are “pictorial” works within copyright’s subject matter; labeling the interest as control over one’s “likeness” does not avoid preemption when the conduct challenged is the display, reproduction, or distribution of copyrighted photos.
- A right-of-publicity claim may avoid preemption when a person’s identity is used in a way separate from the copyrighted work (e.g., advertising, merchandising, or endorsements), but not when the claim seeks to control sale or distribution of the copyrighted work itself.
- An unfair competition claim resting on the same conduct as preempted publicity claims is likewise preempted.
- Under California’s anti-SLAPP statute, once protected activity is shown (or conceded), the plaintiff must demonstrate a probability of prevailing; a claim barred by federal preemption cannot meet that burden.

## Conclusion

The Ninth Circuit held that California publicity and unfair-competition claims based solely on the licensed sale and distribution of copyrighted photographs are preempted by the Copyright Act, and therefore plaintiffs could not establish a probability of success necessary to defeat an anti-SLAPP motion.


Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017)