Ray v. ESPN, Inc. – USCA, Eighth Circuit, April 22, 2015
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Eighth Circuit affirms dismissal of professional wrestler’s state-law right of publicity claims arising from ESPN’s re-telecast of wrestling match footage as preempted by Copyright Act.
Plaintiff, former professional wrestler Steve “Wild Thing” Ray, sued ESPN, Inc., ESPN Classic, Inc., and ESPN Classic Europe, Inc., in Missouri state court, claiming that ESPN’s re-telecast of Ray’s wrestling matches from his early-1990s stint with the United Wrestling Federation without Ray’s permission violated his right to control the use and broadcast of his name, image and likeness. Ray asserted state-law causes of action for invasion of privacy, misappropriation of name, infringement of the right of publicity and interference with prospective economic advantage. ESPN removed the case to federal court and moved to dismiss for failure to state a claim on the grounds that Ray’s claims were preempted by the Copyright Act. The district court agreed, dismissing the complaint in full. Ray appealed to the Eighth Circuit, which affirmed in all respects.
The appellate court held that both conditions for preemption under the Copyright Act were satisfied: (1) the work at issue was within the subject matter of copyright as defined in sections 102 and 103 of the Act; and (2) the state-law-created rights at issue were equivalent to an exclusive right granted by Section 106 of the Act. The filming of Ray’s wrestling performances clearly generated an original work of authorship that was fixed in a tangible medium of expression and could be perceived, reproduced or otherwise communicated, meeting the first element of the preemption test. The court rejected Ray’s argument that ESPN’s alleged use of his “likeness” was the case’s focal point, and it distinguished cases cited by Ray that involved defendants’ unauthorized use of plaintiffs’ names or likenesses to promote or sell their products. The court also noted that Ray’s likeness could not be detached from the copyrighted performances that were contained in the re-telecast footage.
As to the second requirement, the Eighth Circuit held that Ray’s state-law claims targeting the re-telecast of his wrestling footage were equivalent to the exclusive rights of reproduction, public performance, distribution or display under the Copyright Act.