Copyright Preemption Nixed in Models’ Privacy and Misappropriation Case

Professional models Amber Coyle and Jasmin Dustin were paid to participate in a photo and video shoot by Michael O’Rourke and O’Rourke Holdings, LLC.  Coyle and Dustin later sued O’Rourke and O’Rourke Holdings (O’Rourke) for violating the oral and written agreements the parties entered into at the time of the photo and video shoot.  Coyle and Dustin brought their suit in Los Angeles Superior Court.  They alleged the California state law claims of invasion of privacy and misappropriation of likeness against O’Rourke.

O’Rourke removed the case from state court to federal court, then immediately moved to dismiss the case.  O’Rourke claimed that Coyle’s and Dustin’s state law claims were preempted by the Copyright Act, which is federal law.  Preemption means that the federal law displaces the state law.  Coyle’s and Dustin’s complaint did not mention anything about copyright.

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Omega Can’t Pull Off Copyright Infringement Hat Trick

High end Swiss watch manufacturer Omega decided to take on discount retailer Costco.  Omega registered its Omega Globe Design with the U.S. Copyright Office.  Omega engraved its Omega Globe Design on the back of some of its Seamaster watches.  Costco bought authentic Omega Seamaster watches on the “gray market.”  The gray market is “a market that legally circumvents authorized channels of distribution to sell goods at prices lower than those intended by the manufacturer.”  Costco sold some of the engraved Seamaster watches in California.  Omega then sued Costco for copyright infringement, claiming that Costco imported copyrighted works (the engraved Omega Globe) without the copyright holder’s permission.

This case went all the way to the U.S Supreme Court once.  An equally divided court summarily affirmed the Ninth Circuit’s first decision.  The first time it heard the case, the Ninth Circuit ruled that the first sale doctrine did not apply to copies of copyrighted works produced abroad.  The first sale doctrine states that once the copyright holder sells a copy of a work, the copyright owner cannot claim copyright infringement for unauthorized distribution for any subsequent sales of that particular copy. 

The case was remanded to the district court.  The district court ruled that Omega impermissibly attempted to expand its limited monopoly and therefore misused its copyright of the Omega Globe.  The Ninth Circuit affirmed the district court’s grant of summary judgment to Costco.

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Former Professional Football Players Rumble Over Use of Their Likenesses

Electronic Arts (EA) develops and publishes Madden NFL, a video game that allows users to play virtual football games by controlling avatars of real life NFL players.  EA pays to license current NFL players’ likenesses.  Madden NFL also used former players’ likenesses from 2001 through 2009 for its “historic teams” version.  EA did not get a license to use the former players’ likenesses.  Some of the former players sued EA for violating their California state law rights of publicity and other rights.

This case is similar to Keller v. Electronic Arts, in which a college football player, Samuel Keller, sued EA for violating his California state law right of publicity by using Keller’s likeness without permission.  My post on the Keller case is College QB’s Right of Publicity Slaps Video Game Developer’s Free Speech Rights

Regarding the former NFL players, the Ninth Circuit stated

In Keller, we rejected several of the First Amendment defenses EA raises here on materially indistinguishable grounds.  EA advances one additional argument in this appeal – its use of former players’ likenesses is protected under the First Amendment as ‘incidental use.’  (Opinion pdf pages 3-4).

This post discusses only the new argument made by EA, its incidental use argument.

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SDARS and PSS Royalty Rate Determinations Upheld

The Copyright Royalty Board sets royalty rates for Satellite Digital Audio Radio Services (SDARS) and Preexisting Subscription Services (PSS).  SoundExchange, a nonprofit performance rights organization, collects and distributes digital performance royalties to copyright owners.  SoundExchange appealed the rates set by the Copyright Royalty Board in 2013, arguing that the Board arbitrarily set SDARS and PSS rates too low.  Music Choice, a PSS, provides music-only television channels to its subscribers.  Music Choice argued that the Board arbitrary set PSS rates too high.  The Court of Appeals, D.C. Circuit, upheld the Board’s royalty rates determinations.

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