Right of Publicity

Licensing the Image, Not the Athlete: Maloney v. T3Media and Copyright Preemption of the Right of Publicity

The Ninth Circuit held that former NCAA players' publicity claims over an online photo-licensing service were preempted by copyright, because the suit attacked control of the photographs themselves rather than use of the players' identities on merchandise or in ads.

October 13, 2025
College basketball game in progress inside an arena
Because the plaintiffs challenged the licensed download of the photographs themselves, not a merchandising or advertising use, the court found their publicity claims preempted by copyright. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

Two former Catholic University basketball players—who once helped the underdog Cardinals win a Division III national championship—found their old game photographs available for download from the NCAA’s online Photo Library, operated by T3Media. Anyone could license a copy “for non-commercial art use.” The players sued under California’s right of publicity, arguing T3Media was commercializing their likenesses. In Maloney v. T3Media, Inc., No. 15-55630, 853 F.3d 1004 (9th Cir. Apr. 5, 2017), the United States Court of Appeals for the Ninth Circuit said no. In an opinion by Judge Milan D. Smith, Jr., joined by Judge John B. Owens and District Judge Edward R. Korman sitting by designation, the panel held that the federal Copyright Act preempted the players’ statutory and common-law publicity claims, because the suit targeted control over the copyrighted photographs themselves—not the use of the players’ identities on merchandise or in advertising.

At a glance

  • Case: Maloney v. T3Media, Inc., No. 15-55630, 853 F.3d 1004 (9th Cir. Apr. 5, 2017); affirming the U.S. District Court for the Central District of California (Birotte, J.), D.C. No. 2:14-cv-05048.
  • Parties: Patrick Maloney and Tim Judge, former NCAA student-athletes, against T3Media, Inc., which hosted and licensed the NCAA Photo Library.
  • Conduct: T3Media sold non-exclusive licenses letting consumers download photographs from the NCAA’s archive for non-commercial art use; the photographs included images of the plaintiffs.
  • Claims: California statutory right of publicity (Civil Code § 3344), common-law right of publicity, and a derivative unfair-competition claim.
  • Holding: The Copyright Act (§ 301) preempts the claims, and T3Media’s anti-SLAPP motion to strike was properly granted; affirmed. The publicity claims sought to control distribution of copyrighted photographs, an interest equivalent to the rights copyright governs.

The two-step preemption analysis, applied to athletes’ photos

The Ninth Circuit ran the familiar § 301 framework: a state claim is preempted when (1) the work falls within the subject matter of copyright and (2) the state-law right asserted is equivalent to one of the exclusive rights in § 106. Both had to be satisfied, and here both were.

On subject matter, the photographs were unquestionably copyrightable works fixed in a tangible medium. The plaintiffs leaned on the principle—familiar from cases like KNB Enterprises v. Matthews—that a human likeness is not itself copyrightable. The panel agreed with that principle as a starting point but refused to let it end the inquiry. The decisive question, the court explained, is not the abstract copyrightability of a face but what the plaintiff is actually trying to control. When a likeness has been captured in a copyrighted photograph and the plaintiff’s claim attacks the distribution of that very photograph, the claim falls within copyright’s subject matter for preemption purposes.

On equivalency, the players’ theory was that T3Media wrongfully exploited their likenesses by licensing downloads of the images. But stripped of labels, that is a complaint about who may reproduce, distribute, and display the photographs—precisely the exclusive rights conferred by § 106. Because the plaintiffs sought to hold T3Media liable for exercising rights “governed exclusively by copyright law,” their publicity and derivative unfair-competition claims were equivalent to copyright claims and therefore preempted.

The merchandise-and-advertising carve-out

What keeps Maloney from swallowing the right of publicity whole is the line the court was careful to draw. A publicity claim is not preempted, the panel emphasized, when a likeness is used “on merchandise” or “in advertising”—when, for example, a defendant slaps an athlete’s image on a T-shirt, a poster sold as memorabilia, or an ad implying endorsement. In those situations the plaintiff is not trying to control the photograph as an artistic work; the plaintiff is objecting to the commercial exploitation of identity, an interest distinct from copyright.

The preemption switch flips, the court explained, based on how the copyrighted work is used, not on the type of work involved. Where “a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use,” a publicity claim “interferes with the exclusive rights of the copyright holder” and is preempted. Where the same image is instead exploited to sell a separate product or service, the publicity claim protects persona, not pixels, and survives. T3Media fell on the preempted side because it licensed the photographs themselves for downloading, not the players’ identities to hawk goods.

This framing is the opinion’s lasting contribution. It reconciles two impulses that had pulled in opposite directions: the principle that a face is not copyrightable (which would shield most publicity claims from preemption) and the principle that a plaintiff cannot use the right of publicity to seize control of someone else’s copyrighted work (which would expand preemption). Maloney harmonizes them by asking what the lawsuit truly targets.

The anti-SLAPP overlay

There is a procedural lesson layered atop the substantive one. T3Media moved to strike under California’s anti-SLAPP statute (Code of Civil Procedure § 425.16), and the district court granted that motion; the Ninth Circuit affirmed. Anti-SLAPP allows a defendant to attack claims arising from protected activity early, shifting to the plaintiff the burden to show a probability of prevailing. Because the players’ claims were preempted as a matter of law, they could not show that probability, and the claims were struck—exposing the plaintiffs to the statute’s fee-shifting consequences. For publicity plaintiffs in the Ninth Circuit, Maloney is thus a double warning: a weak theory can be both preempted and dispatched quickly, with costs attached.

Open questions

The decision sharpened the test but left its edges contested. How should courts classify hybrid uses—say, a print-on-demand service that licenses a download which the buyer then prints on a mug—where the same transaction sits between “distribution of the work” and “merchandise”? Does the carve-out turn on the licensor’s stated purpose (“non-commercial art use”), the buyer’s eventual use, or the objective character of the transaction? How does Maloney apply when the “work” is AI-generated or synthetically composited imagery that has no single photographer-author whose § 106 rights could be invoked? And does the decision’s logic extend to video and game footage, or is it confined to still photographs? Commentators have noted the opinion generated real preemption uncertainty, and these are the seams where it shows.

Implications

  • Targeting the photograph, not the person, courts preemption. A publicity plaintiff who challenges the licensing or distribution of a copyrighted image—rather than its use on merchandise or in ads—risks having the claim swallowed by copyright.
  • The carve-out is the lifeline. Right-of-publicity claims over likeness used on merchandise or in advertising remain viable; counsel should plead the commercial-exploitation-of-identity theory, not a distribution-control theory.
  • “How,” not “what.” Preemption turns on how the copyrighted work is used, not the kind of work; the same photo can yield a preempted or surviving claim depending on the use.
  • Anti-SLAPP raises the stakes. In California and the Ninth Circuit, a preempted publicity claim can be struck early under § 425.16, exposing plaintiffs to fee-shifting.
  • Reconciles KNB and the artwork-control principle. Maloney accepts that a likeness is not copyrightable yet still finds preemption where the suit attacks control of the artistic work itself.

Frequently asked questions

Why did the athletes lose when a likeness isn’t copyrightable? The Ninth Circuit accepted that a face is not copyrightable, but held that the players were really trying to control distribution of the copyrighted photographs—licensing downloads of the images. That interest is equivalent to the copyright owner’s exclusive rights, so the claims were preempted despite the likeness principle.

When is a right-of-publicity claim NOT preempted under Maloney? When the defendant uses the likeness on merchandise or in advertising—exploiting the person’s identity to sell a separate product or service—rather than distributing the copyrighted work itself. There, the claim protects identity, not the artwork, and survives preemption.

How does Maloney fit with KNB Enterprises v. Matthews? Both accept that a human likeness is not copyrightable. KNB found § 3344 claims not preempted where the defendant commercially exploited the models’ identities. Maloney found preemption where the plaintiffs attacked distribution of the photographs themselves. The reconciling question is what the lawsuit targets: persona (survives) or control of the copyrighted work (preempted).

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