By: Leah Guzick*
Abstract
Right of publicity claims, governed by state law, protect against potential misappropriation of one’s identity. Federal law, such as the Copyright Act of 1976, has the ability to both expressly and impliedly preempt state law. In August of 2020, the Second Circuit ended a five-year litigation battle between Curtis Jackson and William Roberts, better known as Rick Ross and 50 Cent, respectively. Jackson sued Roberts after Roberts recorded a remixed version of Jackson’s hit, “In Da Club.” Jackson, who held no copyright ownership of the song, claimed that Roberts infringed on his right of publicity with Roberts’s remix. The Second Circuit affirmed the lower court’s summary judgement ruling, stating that Section 301 of the Copyright Act preempted Jackson’s right of publicity claim by using a test of both express and implied preemption.
With this decision, the Second Circuit joined the Eighth and Ninth Circuits in finding that the Copyright Act can preempt right of publicity claims, except when there is evidence of endorsement. Instead of only using express preemption—like the Eighth and Ninth Circuits—the Second Circuit went a step further in its analysis by also using implied preemption. This step is in direct opposition to the Third, Fifth, Seventh, and Tenth Circuits, which have found that under similar circumstances, the Copyright Act does not preempt a right of publicity claim.
This Comment addresses the circuit split regarding when to allow the Copyright Act to preempt a right of publicity claim. If this issue reaches the Supreme Court, this Comment recommends that the Court use the same tests and standards used by the Second Circuit in finding that the Copyright Act preempts right of publicity claims, apart from a
fair finding of endorsement.
* J.D./M.B.A. Candidate, The Pennsylvania State University, Penn State Law and Smeal College of Business, 2024.