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Fifth Circuit Finds Right of Publicity Not Preempted by Copyright Act

Fifth Circuit Finds Right of Publicity Not Preempted by Copyright Act 2025

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The document discusses a Fifth Circuit court decision that upheld an award for misappropriation of name and likeness against a record producer and label, ruling that such claims are not preempted by the Copyright Act. The case involved blues musicians who alleged copyright infringement and misappropriation related to their performances on CDs. The court allowed the musicians to recover damages for misappropriation despite the defendants' arguments that these claims should be preempted by copyright law, highlighting potential implications for future cases involving rights of publicity.

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What is the copyright right of publicity?

The right of publicity prevents the unauthorized commercial use of an individuals name, likeness, or other recognizable aspects of ones persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.

Is copyright infringement federal or state law?

The primary framework for copyright protection in the United States is provided by federal law, specifically the Copyright Act of 1976. Under this act, copyright is automatically granted to original works of authorship fixed in a tangible medium, such as literary works, music, films, visual arts, and software.

Can the FTC preempt state law?

At the same time, they only preempt state law to the extent that there is an inconsistency, which only occurs if the state law offers the same or lesser protection. Most of these clauses further specify that such a determination of consistency is to be made by the Federal Trade Commission.

Does federal securities law preempt state law?

Although federal law preempts state registration and qualification under Rule 506, the states have authority to require notice filings and collect state fees.

Does federal copyright law preempt state law?

Under this preemption test, the states are precluded from enforcing penalties for copyright violations if the intellectual property at issue falls within the subject matter of copyright as defined by federal law and if the claimed property rights are equivalent to the exclusive rights provided by federal copyright

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Can federal law preempt state law?

First, federal law can expressly preempt state law when a federal statute or regulation contains explicit preemptive language. Second, federal law can impliedly preempt state law when Congresss preemptive intent is implicit in the relevant federal laws structure and purpose.

Is right of publicity copyright preemption?

At a mini- mum, right of publicity claims should be preempted unless the use at issue (1) goes beyond the reproduction, display, distribution, or sale of a copyrighted or copyrightable work containing a persons name, likeness, or voice, for example a photograph, movie, or audio recording; and (2) states or implies the

Fifth Circuit Finds Right of Publicity Not Preempted by Copyright Act 2025

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What is the copyright right of publicity?

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