Copyright Preemption and the Right of Publicity
Is a state law claim for unauthorized commercial use of an individual's name, voice or likeness—i.e., a right of publicity (ROP) claim—preempted by the federal Copyright Act, when the defendant violates the ROP by reproducing or otherwise exploiting a copyrighted work that embodies such name/voice/likeness? In this edition of their Copyright Law column, Robert W. Clarida and Robert J. Bernstein examine a recent case that addressed this issue.
November 19, 2020 at 12:30 PM
9 minute read
In Jackson v. Roberts, 972 F.3d 25 (2d Cir. 2020), the U.S. Court of Appeals for the Second Circuit recently confronted a copyright question that has long challenged the courts: Is a state law claim for unauthorized commercial use of an individual's name, voice or likeness—i.e., a right of publicity (ROP) claim—preempted by the federal Copyright Act, when the defendant violates the ROP by reproducing or otherwise exploiting a copyrighted work that embodies such name/voice/likeness? In other words, must the individual plaintiff bring that action as a copyright infringement claim, or go without a remedy? The Second Circuit in Jackson clearly held that the answer was yes, but its route to that conclusion may leave future courts no closer to consensus on how to decide the issue.
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