Abstract
To prevent conflicting state-law interests and federal copyright interests in a single claim, Congress enacted Section 301 of the Copyright Act of 1976—providing a two-prong test to determine when a state-law claim is preempted by federal copyright law. Though Section 301 appears to be a clear and simple test, it has proven to be anything but. Between 1986 and 2023, six of the thirteen circuit courts decided whether state-law right of publicity claims are preempted by federal copyright law using the Section 301 two-prong test, but each court’s analysis was vastly different from the other. Specifically, the Second, Third, Fifth, Seventh, Eighth, and Ninth Circuits analyzed copyright preemption issues with right of publicity claims without a clear framework.
Confusion plagues the courts in the following areas: (1) the subject matter and scope of the issues, (2) the equivalency of rights asserted by the plaintiff to copyright, and (3) the differing language within the relevant state right of publicity laws and its place within the preemption analysis. Further, each court has developed a different first step in analyzing preemption, which greatly affects the direction of the rest of the analysis. In some cases, courts consider both implied and express preemption. In others, courts only consider express preemption. Yet, none of the courts use a uniform framework. As the Ninth Circuit described, copyright preemption in relation to right of publicity claims has become quite the “murky body of law.”
In the effort to clarify the murky waters of preemption, this Comment proposes a three-part framework for courts to uniformly apply in right of publicity litigations where copyright preemption is in question. The initial part of the framework provides a clear first step for courts to determine what is truly at the heart of the claim. The second and third steps preserve the Section 301 test but incorporate new considerations courts have historically encountered to clarify the confusion about subject matter, scope, and rights. This framework avoids the limitations of a bright-line rule by being broad enough to cover the many different fact-dependent and complex copyright issues found within right of publicity claims while still being clear enough to be helpful.
Recommended Citation
Annie Seay,
Clearing Up the Confusion: A Three-Part Framework for Applying the Copyright Preemption Clause to Right of Publicity Claims,
73
Emory L. J.
1501
(2024).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol73/iss6/4