One of the more frequent legal hotline questions I receive has to do with use of copyrighted photos. It is clear that AAN members benefit from a broad right to acquire photos or videos relating to a story rather than having to find a photographer to shoot new images for each story. That is why we joined an amicus brief drafted by the Reporters Committee for Freedom of the Press in a case currently before the United States Court of Appeals for the Ninth Circuit.

The case is Patrick Maloney and Time Judge v. T3 Media, Inc.

The plaintiffs are a group of former players from the 2001 NCAA Division III Champion Catholic University Men’s Basketball team. Photos of the plaintiffs were taken by NCAA photographers (or approved NCAA photographers). In about January 2012, the NCAA entered into an agreement with the defendant T3Media, which provides cloud-based storage, hosting and licensing services for digital content under which the NCAA Photo Library – including photos of these plaintiffs – would be stored and hosted on the T3 servers.

The photos themselves could be seen on T3’s website, Paya.com. The public could come view digital samples and had the option to purchase a single copy of any photo for personal use. Users interested in a photo for something other than personal use could “make an offer” to purchase the photo, which triggered a more extensive negotiation between the prospective purchaser and the T3 Media.

The plaintiffs filed a class action lawsuit on behalf of all current and former NCAA student-athletes whose names, images and likenesses have been used without consent by T3 Media for the purpose of advertising, selling or soliciting purchases of the photos, resulting a violation of the plaintiff’s right of publicity. The plaintiffs contend that any consent obtained by T3 Media while still in school is void because NCAA rules prohibit the commercial exploitation of student-athlete images.

T3 Media responded by filing a special motion to dismiss under California’s “Anti-SLAPP” law because the plaintiffs cannot demonstrate a possibility of prevailing on any of their claims. That’s because the claims are: (1) preempted by federal copyright law; (2) constitutionally barred under the First Amendment and (3) invalid because California law exempts from liability the use of a likeness in connection with any news, public affairs, or sports broadcast account. It’s argument is basically that the plaintiff’s names and likeness are part of the “original work of authorship” that is copyrighted (while plaintiffs were arguing that the copyrights clearly owned by T3 Media do not also encompass the plaintiff’s names and likenesses – that would basically allow any photographer to commercialize any photo he or she takes, without the subject’s consent).

On March 6, 2015, the United States District Court for the Central District of California ruled in favor of T3 Media. Our brief, filed in support of T3 Media in the Court of Appeals highlights:

• The importance of this case from a First Amendment perspective. Perhaps if we were to sum it up in one line: the right of publicity should be an exception to the First Amendment; the First Amendment should not be an exception to the right of publicity (the plaintiffs and their supporters specifically advocate for the latter). “Doing otherwise stands to hinder the news media’s ability to report on matters of public concern.”


• The fact that the right of publicity falls into what courts have labeled “content-based” restrictions on speech. That particular type of restriction is subject to particular – strict – scrutiny and only allowed in a very few situations (such as incitement to imminent lawless action, obscenity, defamation, fraud, etc.). These photos are clearly non-commercial in nature – they do more than merely propose a commercial transaction. For instance, the photographs in this case depict a historic event for Catholic University (it’s first and only NCAA title). The fact that T3 media may earn a profit from licensing the photos does not make them commercial speech; they are still expressive and noncommercial in nature.


• Earlier cases from Ninth Circuit which held that an attempt to enforce a right of publicity claim is a content-based restriction of speech, which means it can only be upheld if there is a compelling government interest in the restriction of speech and the restriction employed is narrowly tailored to that interest. But it’s hard to envision how a right of publicity claim presents a “compelling” interest that is sufficient to overcome the need to communicate on a matter of public concern (which includes photos of a sporting event).


• The need for the First Amendment to trump the right of publicity in most situations. Those situations exist when an individual’s name or likeness is being associated with the advertisement of a product or service, not when the name or likeness is being used in a non-commercial journalism context. To extend the right of publicity would create confusion among news media and artists and would end up chilling free expression.

This case is important not because of the facts presented here but because of the overarching principle that the right of publicity must be a very limited exception to the First Amendment, existing and being enforced only on commercial situations, not journalism or other noncommercial situations. The wrong result in this case could result in more right of publicity cases against the media for anything that doesn’t look or feel like a straight news story – any novel way of presenting information via new media, for instance.