court finds ROP claim preempted where model initially consented to being in ad

Delacruz v. Roc Nation LLC, No. 2:25-cv-11864-AH-(SSCx), 2026 WL 2455107 (C.D. Cal. Jul. 28, 2026)

Should copyright preemption apply to a right of publicity claim where the original, consented-to use of the work was created for advertising? The court here answers yes, although I think I would say no under conflict preemption.

Delacruz is a professional model “whose likeness has been featured in advertisements throughout the world.” Roc photographed her for a fee in connection with an advertising and marketing campaign for Megan Thee Stallion’s Hot Girl Summer swimwear.  She allegedly granted consent only for use in social media, but Roc used her likeness on physical, public billboards. She sued for California statutory and common law misappropriation of her right of publicity and false endorsement/false advertising under the Lanham Act. (A breach of contract claim was apparently dropped.)

The question in the 9th Circuit is whether the use of the likeness forms the basis of a publicity rights claim—if so, it’s not preempted. On the other hand, “merely interfering with the distribution, display, or performance of a copyrighted work” is preempted. While existing precedent “strongly implies that misuse of an individual’s likeness is the ‘basis’ of a publicity-right claim when the name or image is exploited in advertising or on merchandise,” the circuit has considered other factors. For example, where there’s not voice imitation, but rather licensing of an existing sound recording, “the entirety of the allegedly misappropriated vocal performance is contained within a copyrighted medium” and there is preemption. (This is downstream of §301 preemption just being a bad fit for the relevant considerations, as I have argued—the court here, like many before it, mixes and matches statutory and conflict preemption reasoning, not to its benefit.)

The court here also drew on Second Circuit precedent, which looked at whether a plaintiff’s name or likeness was “extracted in any way to appear independently from how it originally appeared” in the works at issue. Melendez v. Sirius XM Radio, Inc., 50 F.4th 294 (2d Cir. 2022). Fleet v. CBS, Inc., 50 Cal. App. 4th 1911 (1996), also found preemption where “the only alleged exploitation occurred through the distribution of the actor’s performance in a motion picture.”

Thus, it wasn’t enough to avoid preemption that the photos were (re)used in commercial advertising when they were created as commercial advertising. Under such circumstances, the plaintiff was objecting to the “ ‘unauthorized distribution and republication of a copyrighted work, not the exploitation of [her] likeness on an unrelated product or in advertising.’ In other words, the entirety of the misappropriated likeness is contained within a copyrighted or copyrightable medium.” She consented to the commercial use of the photographs; her claims arose from the further distribution or duplication of those photographs.

 

Nimmer says that a claim “deserve[s] to be preempted ... [involving] facts of a party trying to suppress the very copyrighted work to which she had earlier voluntarily contributed.” Therefore, “the conclusion cannot follow mechanically that all advertising is actionable.” Following Nimmer, plaintiff “collaborated in the creation of a copyrighted advertising product,” and “even if she ... can also adduce a contractual dispute” regarding the scope of placement of such photographs, her collaboration “precludes her from using the right of publicity to squelch exploitation of that copyrighted work for its intended purpose of appearing on” Hot Girl Summer swimwear advertisements.

True, Toney v. L’Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005), allowed a publicity rights claim to proceed when the defendant used the ad in which she appeared beyond the authorized time period, but the court thought that conflicted with Ninth Circuit precedent. “[T]he commercial use element does not qualitatively distinguish the right of publicity claim from a claim in copyright because the claim involves acts of distribution for commercial use. Thus, the claim does not involve additional elements beyond the reproduction of copyrighted works.”

Lanham Act: There was no literal falsity. Her theory was that the billboards were misleading because it suggested that she endorsed the Hot Girl Summer swimwear to billboard viewers when she sought to endorse the swimwear to social media viewers only.

However, by agreeing to participate in the photoshoot for the advertising campaign, Plaintiff effectively lent her endorsement of the Hot Girl Summer swimwear. Plaintiff does not allege that there was anything about that endorsement that communicated a limitation to certain viewers only, such that the photograph was misleading when it was posted on a billboard. Moreover, Plaintiff does not allege a theory of likelihood of confusion where the only plausible confusion alleged is who was to receive the message, not anything about the message itself.