The Copyright Act preempts California’s right to publicity law (Civ. Code 3344) insofar as it would permit persons to sue for the non-commercial use and publication of copyrighted photographs that third parties took showing the plaintiffs. The photographs were copyrighted works of art. While California’s statute can properly prohibit the unconsented-to use of a plaintiff’s image on merchandise or in advertising, it cannot prohibit or require compensation for using a copyrighted photograph of the plaintiff for other—here, non-profit—purposes.
Ninth Circuit Court of Appeals (Smith, M., J.); April 5, 2017; 2017 WL 1244899