Brown v. Ames
201 F.3d 654 (2000)
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Rule of Law:
State law claims for misappropriation of an individual's name and likeness (persona) are not preempted by the Copyright Act because a persona is not copyrightable subject matter, and the right of publicity does not conflict with the purposes and objectives of federal copyright law.
Facts:
- Collectibles Inc. operates a record label distributing and selling music recordings, specializing in repackaged vintage recordings.
- Roy C. Ames is a music producer who specializes in Texas blues, operating as Home Cooking Records.
- The appellees are individual blues musicians, songwriters, music producers, or heirs of such, whose performances were recorded.
- Around 1990, Ames, doing business as Home Cooking Records, licensed master recordings to Collectibles for commercial exploitation, which included performances by the appellees.
- The written license agreements purported to grant Collectibles the right to use the names, photographs, likenesses, and biographical material of the performers on the master recordings.
- Ames represented and warranted to Collectibles that he was entitled to convey these rights.
- Using the master recordings, Collectibles manufactured and distributed cassettes and CDs, as well as music catalogs, featuring the names and sometimes the likenesses of the performers.
- Ames also sold posters and videotapes with the names or likenesses of the plaintiffs.
Procedural Posture:
- Appellees (individual blues musicians, songwriters, producers, or their heirs) sued Roy C. Ames, Collectibles Inc., and Jerry and Nina Greene in a federal district court.
- The district court dismissed appellees' negligence and conversion claims as preempted by the Copyright Act.
- The district court dismissed without prejudice the copyright claims of those appellees who had not timely obtained registration certificates.
- Appellees' actions for copyright infringement, violations of the Lanham Act, and misappropriation of name or likeness under Texas state law proceeded to a jury trial.
- At the close of appellees' case, the district court granted judgment as a matter of law for defendants Jerry and Nina Greene.
- The jury found in favor of all defendants on the Lanham Act claims.
- The jury found that the defendants had misappropriated the names and likenesses of the appellees and had infringed (Collectibles innocently) copyrights held by some appellees.
- The jury also found that Weldon Bonner had not executed a Recording Agreement with Roy Ames.
- The jury awarded the appellees misappropriation damages of $127,000 ($100,000 from Ames and $27,000 from Collectibles).
- The district court issued a final judgment on August 3, 1998, holding Collectibles liable for $1,800 for copyright infringement and $27,000 for misappropriation, and Ames liable for $22,500 for copyright infringement and $100,000 for misappropriation.
- Collectibles Inc. and Roy C. Ames, as Defendant-Appellant and Movant-Appellant, respectively, appealed the district court's judgment to the United States Court of Appeals for the Fifth Circuit.
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Issue:
Does the Copyright Act preempt state law claims for misappropriation of a person's name and likeness when these are used without authorization to market musical performances on recordings, even if the defendants also lack copyrights for the performances themselves?
Opinions:
Majority - Edith H. Jones
No, the Copyright Act does not preempt state law claims for misappropriation of a person's name and likeness when these are used without authorization to market musical performances on recordings, even if the defendants also lack copyrights for the performances. The court first analyzed preemption under 17 U.S.C. § 301(a), which requires two conditions: (1) the content of the protected right must fall within the subject matter of copyright, and (2) the state law rights must be equivalent to the exclusive rights of federal copyright. The court determined that a person's name and likeness, or 'persona,' does not fall within the subject matter of copyright because it is not a 'writing' of an 'author' under the Copyright Clause and does not become copyrightable merely by identifying copyrighted works. The court distinguished this case from others where the misappropriated subject matter (e.g., songs or dramatic performances) was copyrightable, and instead found persuasive cases holding that vocal style, like a face, is not copyrightable. The court rejected the argument that names and likenesses become copyrightable because they are placed on copyrightable CDs or tapes. Second, the court considered conflict preemption under the Supremacy Clause. It found that the right of publicity, protected by the misappropriation tort, actually promotes the major objective of the Copyright Act—to encourage artistic and scientific endeavors—by providing economic incentive to performers. Furthermore, Congress was aware of state laws regarding privacy and publicity and intended for them to remain. The court also affirmed the jury's finding that the damages awarded were supported by sufficient evidence, as mathematical precision is not required for general damages in misappropriation cases. The jury's verdict that Weldon Bonner did not execute a particular recording agreement with Ames was also upheld, as evidence presented (Bonner's daughter's testimony and signature comparisons) could reasonably overcome the presumption of authenticity for a notarized contract under Texas law. Lastly, the court found that the appellants waived their argument regarding Leonard Brown's copyright in 'Ain't Got Much' because they failed to raise that specific objection at trial.
Analysis:
This case is significant for clarifying the boundary between federal copyright law and state law rights of publicity. By firmly establishing that a person's name and likeness (persona) are not copyrightable subject matter, the Fifth Circuit reinforced that state law claims for misappropriation are generally not preempted by the Copyright Act. This decision provides performers and individuals with a distinct cause of action to protect their identity and its commercial value, separate from any copyright interests in their creative works. It underscores that the economic incentives offered by rights of publicity align with, rather than conflict with, the federal goal of promoting creativity, especially when unauthorized use occurs in situations where the defendant holds no valid copyrights to the underlying artistic works.
