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.

insurer can't use "promotional event" exclusion to avoid coverage for recurring club nights

Acosta v. Clear Blue Specialty Ins. Co., 2026 WL 2093910, No. CV-24-03681-PHX-DJH (D. Ariz. Jul. 21, 2026)

Plaintiffs are models trying to recover for claims resolved by consent judgment in their underlying lawsuit, one of the many against adult clubs around the country.

In various social media posts, the insured used plaintiffs’ images to advertise club events, such as “Champagne Saturdays,” “Latin Ladies Night,” “Working Man Specials,” and “2 por 1 Martes.” Plaintiffs claim that their injury constituted a “personal and advertising injury” under the policy.

But the Policy excludes coverage of “personal and advertising injury” that arises out of “exhibitions and related marketing,” defined as:

(a) The creation, production, publication, performance, exhibition, distribution or exploitation of motion pictures, television programs, commercials, web or internet productions, theatrical shows, sporting events, music, promotional events, celebrity image or likeness, literary works, and similar productions or work, in any medium including videos, phonographic recordings, tapes, compact discs, DVDs, memory cards, electronic software or media, books, magazines, social media, webcasts and web sites.

(b) The conduct of individuals in shows, theatrical productions, concerts, sporting events, or any other form of exhibition.

(c) Merchandising, advertising or publicity programs or material for the operations and material described in (a) or (b) above.

Plaintiffs argued that a “promotional event” is not “a party at a nightclub but rather an ‘event’ thrown in furtherance of promoting something…”

The insurance company responded contested images were advertisements for “promotional events” as the events advertised “were not ordinary nightclub evenings.” They touted “drink specials, free admission for women, reduced dance pricing, and other deals.”

The policy didn’t further define “promotional event,” so the court analyzed the terms of the policy as written and from the “viewpoint of one untrained in law or in the insurance business.” Sampedro v. Clear Blue Specialty Insurance Company, 2026 WL 1291919 (M.D. Fla. May 12, 2026), held that the same exclusion unambiguously excused the insurer from defending the nightclub in a similar case involving ads for “the ‘Pretty Chicks & Kicks’ and ‘Tastee Tuesday’ events.” The court reasoned that, even under such a definition, “[the nightclub’s] promotional events promoted the nightclub itself through alcohol sales and DJ appearances.”

Nobriga v. Clear Blue Specialty Insurance Company, 2026 WL 1998727 (D. Conn. July 10, 2026), used dictionary definitions to define a “promotional event” as “a noteworthy happening or social occasion or activity serving the means of furthering the growth or development of something, particularly the acceptance and sale of merchandise through advertising, publicity, or discounting.” Based on this definition, ads for the café’s “Cinco de Mayo Party,” “Halloween and St. Patrick’s Day parties,” and “Baseball Night” constituted advertisements for “promotional events.” “[E]ach advertisement offered discounts on food and entertainment with the goal of bringing additional customers through [the café’s] doors, and tied such discounts to specific holidays or themed nights such as baseball night” making them “advertising” for “promotional events.”

The court agreed that a “promotional event” need not be in furtherance of something other than a business itself. But it thought that the common understanding of “promotional event” wasn’t broad enough to encompass “every promotion put in place by a business.” While holiday parties qualify as “promotional events,” the same couldn’t be said for ads “tied to…a recurring weekly promotion[,]” such as “Baseball Night.”

Here, some of the events advertised seemingly occurred on the same day each week or at a defined time every day. Those were “a routine part of” the insured’s business, not a “noteworthy happening” or “social occasion,” and were untethered to anything but the promotions themselves. There was no special food; “merely offering drink and dance specials does not definitively transform a promotion into a promotional event,” nor did giving the promotion a title. “The lack of ties to a special occasion or specific occurrence” made the exclusion inapplicable. “To rule otherwise would require reading the word ‘event’ out of the phrase ‘promotional event.’”

The court also rejected the insurer’s argument for judgment on the pleadings that the exclusion applied because the underlying litigation arose out of the publication of a celebrity image or likeness. But not all recognized models are “celebrities.” More facts were required.

Clear Blue Specialty Ins. Co. v. 05 Petete, Inc., 2026 WL 2196263, No. 26-1891 (E.D. Pa. Jul. 29, 2026)

Similar result here on the same language. One underlying plaintiff pled herself out of coverage by pleading that she was a “social media celebrity,” but the others didn’t. “Being well-known in one’s profession or endeavors does not by itself raise one’s status to the level of a celebrity.”

As for the promotional events exclusion, “Contrabando’s High-Voltage Wednesdays,” “Exclusive Fridays,” “Matinee Sundays,” and “Euphoric Saturdays” were “certainly promoting Euphoria’s nightclub itself and are using the images of plaintiffs to do so.” But the ads were

merely encouraging the presence of patrons on Wednesdays, Fridays, Saturdays and Sundays generally and are not pointing to any Wednesday, Friday, Saturday or Sunday in particular. It is the standard business of a nightclub to sell liquor to its clientele and to provide musical entertainment. The offer of reduced prices from time to time is a standard business practice to entice customers. The reduced prices are not tied to a specific event or events but are in place for all Wednesdays, Fridays, Saturdays, and Sundays.

“While the World Series is an event, the baseball season is not an event. Likewise, while the grand opening of Euphoria’s nightclub or the opening of any business would be an event, its continual and regular day-to-day operation is not in ordinary parlance deemed to be an event or series of events. Such operation may continue for years.” Thus, the ambiguous policy language was construed against the drafter/insurer and it had a duty to defend against three of the underlying plaintiffs’ claims, and thus a duty to defend in the underlying lawsuit.

Reminder: Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026: submit by June 1

Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026

The Trademark and Unfair Competition Scholarship Roundtable co-hosted by Harvard, NYU, and the University of Pennsylvania will take place this year at NYU. Now in its fifth year, the Roundtable is designed to be a forum for the discussion of current trademark, unfair competition, and right of publicity scholarship, covering a range of methodologies, topics, and perspectives. Five to six papers will be chosen for discussion over the course of the Roundtable, with each paper allocated an hour for discussion and assigned a commentator.

The Roundtable will be held on Friday, October 16, 2026. If there is a critical mass of papers, we may also extend the Roundtable through Saturday morning, October 17. Participation at the Roundtable will be limited and invitation-only and we expect all participants to have read the papers in advance. We will ask participants to rely if possible on research accounts to cover travel and accommodation, but if that is not possible we will have funds to cover costs.

We invite submissions from academics working on any aspect of trademark, false advertising, marketing, right of publicity, or related areas of the law. Priority will be given to those who can attend the entire event and a dinner the night of Friday, October 16. Submissions must be of full drafts in Microsoft word format. The deadline for submission is June 1, 2026. Decisions on participation will be made by June 15, 2026.

Submissions should be made by means of this Google form<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_forms_d_e_1FAIpQLSfpHCiFmcHZ6SCKp4oWYC1TDTVXC8MNxWlaw2XpMc4IF3GtHQ_viewform-3Fusp-3Dpublish-2Deditor&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=JCtF1L1KFZQA400a-MfN1LbbUwey4sno6RJztdDSMVk&m=frYEnTCmkzL5dabxDGK2I-SaTfGMF9qSkTH-tqc6v8_eRDuLE2XZ1o1PydGPHvx0&s=PUCAH7B4foFMqAuRCNa6K1oA1S63rzSVKgCgIrUKF8I&e=>. If you have any questions, please contact Barton Beebe at barton.beebe@nyu.edu<mailto:barton.beebe@nyu.edu>.

the continuing merger of TM and the right of publicity: court can't tell the defenses apart

Upper Deck Co. v. Pixels.com LLC, No. 3:24-cv-00923-BAS-DEB, 2026 WL 776227 (S.D. Cal. March 19, 2026)

Eric Goldman’s discussion. Upper Deck makes sports memorabilia (including sports player trading cards), and has exclusive licensing agreements with various athletes, including famous basketball player Michael Jordan, to use their names, images, and likenesses. Pixels is an online company, selling print-on-demand décor, photographs, wall art, prints, and other similar products. Pixel allows people to upload images and to sell physical prints of those images on its sites. Those included framed prints of Upper Deck’s trading cards featuring Jordan, and other prints displaying Jordan’s likeness. Upper Deck sued for false affiliation/endorsement, false advertising, and unfair competition; trademark dilution; trademark infringement; and right of publicity claims. The court mostly allowed the claims to proceed, with some subtractions.

Those subtractions included the dilution claim: Upper Deck’s registered hologram mark was not sufficiently famous among the general consuming public. However, trademark infringement claims based on the use of (non-hologram) reproductions of the hologram mark survived, despite Pixels’ argument that the one product containing the Upper Deck Hologram Mark listed on its website was never actually sold. Also, a copy of the 1986-87 Fleer Michael Jordan Rookie Card was sold at an auction for $840,000, while the framed print of that card offered for sale on Pixels’ website was priced at $70.

The same result occurred for Lanham Act false advertising and false affiliation claims based on Pixels’ advertisement and sale of products displaying Jordan’s trademarks on its website.

False advertising: The court found that Upper Deck identified a “false statement of fact” by Pixels in a “commercial advertisement about its own or another’s product,” via Pixels’ advertising of products containing Jordan’s trademarks on its website. The court analogized to the use of a kosher certification mark, which doesn’t seem to be analogous in materiality terms. Also, “the fact that some of the images are accompanied by the names of the persons uploading the images on Pixels website does not undermine the misleading nature of Pixels’ use of Jordan’s trademarks in advertising its products.” No further explanation.  

False association: “To establish proximate cause for false association claims, it is sufficient to demonstrate misuse of the relevant mark is likely to cause consumer confusion.” No materiality or harm requirement.

Upper Deck, as licensee for Jordan’s publicity rights, was also able to bring its publicity rights claims, including a publicity rights violation as a predicate violation for UCL claims (if there was no adequate remedy at law).

There were statute of limitations issues. The analogous limitations period for Lanham Act violations in California is four years; two years for the common law right of publicity; and four years for the statutory right of publicity, statutory unfair competition, and common law unfair competition. The specific images that fall within those time frames could be addressed by motions in limine.

I often tell my students that courts interpret the federal and state dilution laws as closely together as they can (with the partial exception of fame) because no one wants to do two dilution analyses, no matter whether the laws are written differently. I predicted that this would also become true of post-JDI Rogers/right of publicity defenses and here I am proven right: Apparently unable to recognize that, in theory, Rogers is the Ninth Circuit test for First Amendment limits on trademark and transformativeness is the Ninth Circuit test for First Amendment limits on the right of publicity, the court here rejects them both because Pixels is supposedly making trademark use of Upper Deck’s marks (that is, the basis recognized by JDI, but until now not part of transformativeness). And it does so because … Upper Deck’s trademarks, including Michael Jordan’s likeness, appear in the images and are thus serving as source indicators. “The pictures and photographs of Jordan displayed in Pixels’ products at issue in this action are source-identifying insofar as they contain Jordan’s Marks.” Bad reasoning all around. Pixels could still argue expressive use “insofar as it is relevant to the likelihood of confusion analysis at trial.” But ROP violations don’t require confusion—so I guess Pixels just loses?

CDA 230: Pixels is a “publisher or speaker” for advertising and curating content on its websites, but not for selling and distributing physical products. “Pixels does not create the illicit images of products uploaded and displayed on its site, and Pixels’ website search engine and content filtering tools do not contribute to the creation of those products.” This gets rid of display-only ROP and other state law violations (because the Ninth Circuit says state-law ROP claims aren’t exempted IP claims), but keeps the rest (e.g., claims based on Pixels’ contracting with vendors to manufacture and ship products, facilitating product returns, and offering a money-back guarantee).

WIPIP Panel 3: Deepfakes, Celebrities, and Movies

A Digital Right of Publicity for the AI World (Emma Perot)

Prehistory: ROP covers lookalikes, soundalikes, video game avatars (at least for realism).

Persona as training data. Theories of personality: users informed about use; many social media companies do not allow opt-in or opt-out; performers can be subject to exploitative terms. Unjust enrichment: in absence of compensation for training and licensing to third parties. Incentives undermined, though this won’t apply to the average social media user. We tend to favor art we think is made by humans. W/o proper protection we’ll undermine incentives.

Input stage: is consent obtained? Maybe, sort of, via terms of service, contracts with publishers, agreements made pre-AI.

Output stage: could be identifiable or unidentifiable. The latter isn’t really a problem for ROP. But the ability to create unidentifiable persona makes input approach important—persona has been used for the training. Risk of nefarious uses already addressed in many situations; but expressive uses could be covered which could interfere with realistic depictions, e.g. in biopics. If you’re conveying information about the person perhaps we want to allow that (as opposed to casting them in a role).

No FAKES: positives—exception for satire/parody, disclaimers not permitted. Negatives: doesn’t address training, uses to create composite figures, licenses last too long (10 years). SAG-AFTRA agreement: more positive b/c TV/theatrical uses they say: each capture and use of digital replica should be consented to and compensated.

Need clarity on how consent for input is sought and how outputs will be treated in expressive works. Avoid labor displacement.

Betsy Rosenblatt: Different interests from people who make a living from their persona v. someone who is more concerned w/privacy.

Lisa Ramsey: theories of persona is one framing, but what are the goals of the law is another. What are you trying to protect? Right to make $ from performing? Right to stay out of database?

[Persona is a bad fit for a consent-to-train framework because the details of a person’s life etc. are facts. You may be thinking about songs and movies, but the NYT wants to be able to license its news stories w/o being overridden by the subjectss. Moreover, persona is constructed with others. When I tell my life story, my husband’s life story is inherently implicated.

Incentives: if you are relying on the preference for human-made work, what you want is a disclosure regime; licensing by the person will lead to lots of deception.]

Transformative Celebrity (Rebecca Curtin)  

ROP claims might be implicated by methods users use—Zarya of the Dawn looks a lot like Zendaya, and that’s b/c the prompter used her name to produce a character who resembles Zendaya. Use of names in prompts alone, w/o reference to whether an infringing result is produced, has been raised by artists who alleged that allowing users to request art in the style of X was a violation of the ROP.

Transformative use was imported into ROP from ©, but © has recently devalued new meaning and message. Should ROP follow ©? Should © return to focus on new meaning, especially for use of persona? Does it make sense for © and ROP defenses to differ?

Transformativeness is not the worst approach of the possibilities in ROP.

Warhol’s commerciality test sounds a lot like the predominant use test in ROP cases (yuck).

Thinks Griner v. King was wrongly decided by 8^th Cir.—use of “success kid” meme was not fair use even used in political speech. Inherently expressive way of using image as cultural reference, but court reasons that controlling the commercial use of the template was the point of seeking © and thus not transformative—devalues what the politician was trying to say. Warhol is undervaluing new message & meaning, and expanding that approach to ROP would be devastating to the transformative power of celebrity itself.

Brian Frye [edited to correct attribution]: the speech is out there; it’s just a question of who gets paid/the rents.

A: chills speech by future potential speakers.

RT: experience w/state dilution law suggests courts are neither willing to use nor capable of using two different tests with the same name. Return to productive use, but this time for the ROP?

Trademark Law's Trouble with Titles (Stacey Dogan)         

What would have happened if Barbie, the movie, was made by a truly subversive entity instead of by Mattel? TM handles titles very badly in ways that are becoming more problematic after JDI. Alone in the Dark lawsuit—based on video game suing over title of movie Alone in the Dark, one of many films under the same name.  Several courts in the wake of JDI have concluded that titles may be source indicating, meaning that Ds have to go through the regular LOC standard, which is much less speech-protective. But these courts have gotten it wrong.

Titles and TMs do have some things in common. But differences in purpose function and impact on audiences versus impact on consumers; differences in consequences of extending legal rights to titles (speech impacts)—which should mean different legal rules. Reference to titology, literary theory of what titles mean.

Looks at different contexts: titles as TMs, recognized by early 20^th-c courts as basis for unfair competition claims, but rightly with a high standard requiring explicit misleadingness; Rogers and titles as alleged infringement; Dastar and its conception of TM’s relationship to expressive works (TMs identify source of physical object; titles are not TMs in this view, but indicate a relationship b/t author & expression); and then JDI and Kagan’s understanding of “use as an indication of source.” This should be understood narrowly to preclude the treatment of titles as TMs.

Goal: easy resolution of most cases. Presume titles are not source-indicating uses, which means that Rogers-like speech protection is appropriate. But Rogers needs an update: can’t later claim TM rights based on expressive uses. Some kind of estoppel, though implementation is tricky.

How to draw the line b/t mere use in title and other uses? Advertising of title/work should clearly be allowed, but what about merchandise? Advertising in connection w/merch?

Ramsey: would only apply rules against people who asserted TM rights by applying for registration, claiming in a pleading, or maybe using TM symbol—treat as an admission by the defendant. But what about Harry Potter and the ___? If there’s no inherent meaning before adopted, maybe allow TM, but something like Alone in the Dark already had meaning and thus shouldn’t ever be protectable.

A: two different forms of expressive use: one set of terms involves common meaning like Alone in the Dark; also important to be able to engage in nominative fair use-like titles like Barbie Girl.

Rosenblatt: how much do we need title exceptionalism to get to this place? Dastar: relationship b/t title and content is not a source relationship. We can understand that some titles are descriptive, generic, arbitrary and approach them that way. (I don’t think arbitrary titles are marks! Use as a mark is a separate requirement from placement on Abercrombie.) But she’d limit that to rights claims; whereas when titles are the source of alleged infringement we should treat that differently.

A: we have title exceptionalism on the protection side and should retain it b/c of the expressive cost of granting rights. Titles are creating more problems than characters—most of the Rogers character cases are easily resolved in favor of the defendant b/c courts have found that use w/in a work is more purely expressive.

FIRST: Archival Encounters That Set History in Motion (Claudy Op den Kamp)

Videographic presentation of history of first film © registration in US.

Santa Clara IP Conference: Where Do We Go From Here?

Moderator: Edward Lee, Santa Clara Law

BJ Ard (copyright), University of Wisconsin Law School

© is often displaced by contract and other regimes in sectors—scaling it up or down would produce minimal impact. Consumer copying for example is often solved by non-© solutions: Spotify changed things, as did rise of cloud-based services which meant people had less to share. Content ID can block fair use but does allow lots of uses that otherwise wouldn’t be fair. Even big-budget productions, like video games, don’t rely on © to deter second-comers but on features that are costly to duplicate, actors/TM/ROP protection, sequelization. It’s not that this sector is representative but hybrid relations that are only partly ©-governed exist across the board. Copyright owners use licensing models to overwrite © provisions. Streaming services continue this trend w/no need for legal enforcement b/c access is built into the system.

© is the only policymaking place where concerns about AI are actually being aired, but © can’t stop AI; big © owners are going to license. Given that © isn’t doing as much work in its traditional domains, we shouldn’t expect it to do work in these new domains. Asking it to solve labor issues, market concentration, privacy is likely to fail.

Colleen Chien (patent): AI’s effects on search for examination; AI can also identify potentially infringing products. AI tools used to digest evidence and make predictions. As we see platforms start to make their own IP infringement determinations, we might find them “good enough” w/o need for lawyers. Discussed need for human review—need to figure out.

Camilla Hrdy (trade secret), Rutgers Law School

Trade secret law is different from other IP; often not defined until mid litigation where you perform “identification,” the law of which is in chaos. California wants you to identify the secret before discovery; courts had maybe been converging on that but the 9^th Circuit said no, the Defend Trade Secrets Act has a different standard—not reasonable particularity but sufficient particularity; other circuits say different things. Lack of clarity on fundamental initial issue. What does it mean to keep something secret? Not clear; jury left on its own. What does it mean for a secret to be readily ascertainable? In California, the most important trade secret jurisdiction, there isn’t a requirement of lack of ready ascertainability—even if you could perform reverse engineering in 8 hours you can still be liable for getting it from an employee. NJ has the same rule. Lots of lack of clarity about workers’ high level knowledge and experience—lots of courts think that asking about that is the same as asking whether something is generally known in the field. Not clear about what it takes for a secret to have independent economic value—lots of courts just look at whether you invested in the information. We need more people thinking about trade secret law! People need to talk to practitioners. We don’t know enough!

Keith Robinson (patent), Wake Forest University School of Law

Uncertainty around what counts as invention. Mental conception doesn’t really match with the evidence we look for (documentary: notebook, emails, other records). Identifying a problem rarely matters. Even a highly specific articulation of a problem is typically insufficient unless paired w/ a concrete solution.

Jennifer Rothman (right of publicity), Univ. of Pennsylvania Carey Law School

Identity thicket: overlapping rights. People have been registering marks in names/likenesses for a while; current focus on Matthew McConaghey is perplexing to her (and me). But we might highlight how rights are being separated out w/potentially different controllers and licensees. There used to be a lot more distinction b/t people using name as business name/putting it on goods/services. But now the Lanham Act and states protect use of names, voices, and images as marks, at least if we are commercializing them in some way. The PR stunt of the registrations is more interesting: he has a deal for use of his voice as a voice clone that can speak multiple languages—it’s a way to market his deal. False advertising law is also relevant to these uses. © is also relevant and maybe is less peripheral than Ard said. Are digital replicas uncopyrightable? Unclear! There are pending registrations. If registrable, can there be multiple registrations of a digital replica as you can have multiple registrations of photos of a person? If so, what’s infringement? We’ll see people leveraging © this way more. © one’s personality or “character” bible in the same way people © scripts. Music industry has already made © claims that using similar voices is infringing.

At the federal level Take It Down is about intimate images; No Fakes is also under consideration to regulate digital replicas generally. There’s so much going on: that’s the identity thicket. And one person might not control all these rights; rights conflicts are possible, raising serious concerns about a human-centered approach. Compare to EU approach, focusing on concerns about the underlying person being depicted and secondarily on the public.

Capitol Hill: not clear what will happen, if anything. But it won’t help matters very much b/c unlikely to preempt the thicket that already exists. And won’t address concerns about transferring rights away from underlying person, or about deception licensed by the underlying person. Considering model state ROP law to address more of these issues, especially transferring someone’s own name, likeness etc away from them—has seen SAG realize this is a problem. Might see more of an appetite for repealing CDA 230; shifts in tech to build guardrails; we might see shifts in preferences for authenticity—hopes for the renaissance of theater.

court of appeals refuses to create right of publicity for houses, over dissent

Dihno v. Netflix, Inc., 2025 WL 3280834, B335652 (Cal. Ct. App. Nov. 25, 2025)

Over a partial dissent, the court of appeals affirms the rejection of various claims, including CLRA and FAL claims, against Netflix based on its use of a photo of plaintiffs’ house in an ad for Buying Beverly Hills, one of its reality shows, which depicts the operations of a real estate firm. “Plaintiffs’ home is on a ridgeline in the Hollywood Hills. The property is guarded by a private gate and the home is not visible from any nearby street. The closest publicly accessible vantage point from which the home can be seen is 1,034 feet away.” The photo was taken by a nonparty and published on Shutterstock, then licensed for the ad. The photographer “allegedly took the photo without Dihno’s knowledge or consent using a drone or other specialized photography equipment. The photo depicted interior and exterior details of the home not visible from any public location, including the ‘room layout’ and the entrances and exits. The original photo allegedly depicted plaintiffs’ silhouettes, but was cropped to remove them for the ad. As alleged, both Netflix and its ad agency knew that the home was not associated with or depicted in Buying Beverly Hills.

People allegedly began to visit plaintiffs’ home “on a daily basis” asking to see it and claiming they learned it was for sale through the Buying Beverly Hills advertisement, including a woman who demanded to enter, refused to leave, and was arrested. “Other people attempted to open plaintiffs’ front gate and climb over their fence.” Plaintiffs received calls “more than once daily” from real estate agents who sought to represent the family in selling the home. (OMG! Me too!) This caused plaintiffs harm to their mental health, reputations, and relationships with neighbors. They spent approximately $20,000 on security measures.

Plaintiffs sued for: (1) invasion of privacy, based on theories that Netflix intruded upon plaintiffs’ seclusion and portrayed them in a false light; (2) negligent infliction of emotional distress (NIED); (3) intentional infliction of emotional distress (IIED); (4) Consumer Legal Remedies Act (CLRA) violations; and (5) violation of the California False Advertising Law (FAL).

Invasion of privacy: Right of seclusion: This requires that a defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy, and the intrusion must occur in a manner highly offensive to a reasonable person.” The state constitutional cause of action for invasion of privacy has “largely parallel” elements.

Netflix didn’t do the intruding; the question was whether it “ratified” the intrusion when it published the ad. “Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him.” But there were no allegations that the photographer acted on Netflix’s behalf. Indeed, the photo was on Shutterstock, from which any member of the public could license the photo, contradicting any argument that the photographer acted for Netflix. Moreover, “[r]atification can only occur where the person ratifying has full knowledge of the facts.” Netflix was not alleged to have knowledge. 

What about the people who intruded, allegedly caused by Netflix? Intentional intrusion doesn’t cover third party intrusions except when vicarious liability is possible—that is, when the intruders are defendant’s employees. Although an ad soliciting people to come to another’s home for sex and providing the address might show an intent for third parties to harass the plaintiff, that’s not what happened here.

False light: This requires a portrayal that would be “highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.” “Yet, on its face, the advertisement depicted a home, not the plaintiffs; and it included no personal information from which any viewer could identify them.” Even if third party real estate agents somehow associated them with the show, “the complaint does not allege, and plaintiffs fail to explain, how association with a television show involving real estate is highly offensive to a reasonable person. As a matter of law, we conclude it is not.” Although they alleged that the ad publicly disclosed the entrances, pathways, and floor layout of their home, there was no allegation of falsity.

Statutory invasion of privacy: Plaintiffs invoked a California law providing that any person who enters “the airspace above the land of another person ... in order to capture any type of visual image ... of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person” is liable for physical invasion of privacy. But there were no specific factual allegations that could support this statutory claim with respect to offensiveness.

CLRA and FAL: No standing. Standing requires economic injury or damage which “ ‘was the result of, i.e. caused by,’ ” the CLRA or FAL violation. For causation, plaintiffs must demonstrate that they “ ‘ “actual[ly] reli[ed]” ’ on the ‘ “allegedly deceptive or misleading statements” ’ and that it ‘ “was an immediate cause” ’ ” of their injuries. But plaintiffs didn’t allege reliance, only harm from alleged perceived affiliation with Buying Beverly Hills.

Plaintiffs argued that reliance was unnecessary because their CLRA and FAL claims do not sound in fraud, but they obviously were. Plus, CLRA remedies are available only to a “consumer,” meaning “an individual who seeks or acquires, by purchase or lease, any goods or services ....” Although plaintiffs alleged that they purchased goods generally, “we disagree that the CLRA can be interpreted to permit any person who purchases goods to seek relief from any entity that publishes misleading advertisements.”

NIED: “[A]s a general matter, there is no duty to act to protect others from the conduct of third parties.” There were no allegations that plaintiffs had a special relationship with Netflix, and under the facts alleged, Netflix did not affirmatively create any peril. The ad didn’t encourage third parties to visit the home, trespass on the property, or harass the homeowners. It didn’t even disclose plaintiffs’ address, “nor any street or landmark from which the home’s location could be feasibly discerned.” Moreover, the complaint alleged, plaintiffs’ home “is not even located in Beverly Hills,” meaning that anyone searching for the home in the television show’s namesake city would be looking in the wrong place.

IIED: Netflix allegedly posted the ad on its own home page and on other unspecified websites and publications. The complaint didn’t allege that plaintiffs themselves were Netflix subscribers, nor that they were the target of any form of the ad, nor that Netflix intended to encourage third parties to visit.

IIED typically requires conduct directed at the plaintiff, but there’s an exception “when the defendant is aware, but acts with reckless disregard of the plaintiff and the probability that [its] conduct will cause severe emotional distress to that plaintiff.” This exception applies only when the defendant’s conduct “was done with knowledge of [plaintiffs’] presence and of a substantial certainty that they would suffer severe emotional injury.” The complaint didn’t and couldn’t plausibly allege that.

Private nuisance also failed for similar reasons.  

A concurrence defended the majority’s reluctance to expand the intentional tort of intrusion “in a sweeping and unwarranted way”:

In search of a legal theory, appellants contend they “should have some right under the law to limit Netflix’s exploitation of their home, life, and privacy.” Appellants’ claim that Netflix “exploit[ed]” “their home” sounds suspiciously like a proposed right of publicity for houses. For good reason, there is no such tort.

 Given the causal chain alleged, liability under this new theory would be

breathtaking in its scope. Let’s say the Los Angeles Times decides to do a piece on “five houses in Los Angeles that look like they came out of a fairy tale.” You know—with those cute, curving brown roofs. People read the piece and think, “Wow, I’d like to see that.” They drive by, or walk by, the houses. Maybe some even knock and ask to come inside. Let’s say lots of people do that. Let’s say the “publisher” of the piece is not the Los Angeles Times but an influencer on Instagram who’s interested in architecture. Can the owners or residents of those homes sue for intrusion? One can imagine myriad other examples. And—according to appellants—someone who merely licenses a photograph from a stock footage agency and publishes it can be socked with a lawsuit as well if people show up to check out the house in the photo.

Nor were ads without constitutional protection.

Judge Edmon partially dissented, arguing that there should be an intrusion claim here, relying on the flexibility and expansiveness of the privacy torts. “[A]t least a few cases have recognized claims for intrusion where defendants published information about the plaintiffs that caused third parties to intrude into their private spaces.” Unsurprisingly, these are cases when harassers published solicitations claiming that women wanted sex and third parties showed up in reliance on the false claims. But the dissent would generalize to “defendants’ publication of information that created interest in the plaintiffs and led to foreseeable physical intrusions by third parties that significantly disturbed the plaintiffs’ solitude.” That’s not foreseeability—that’s deception and intent to harass. But the dissent would not require intent to harm, only intent to intrude. [I’m still not seeing intent to intrude here.] And it didn’t matter that Netflix didn’t publish an address or names, because, in a previous case, the ad used the woman’s name but not her address and the third parties were able to find her address by using the phone directory. Because “many third parties allegedly were readily able to discover [the address here], presumably by using widely available Internet or artificial intelligence tools, “I therefore would leave it to the trier of fact to decide whether Netflix’s use of the photograph of plaintiffs’ home in its advertising, even without an accompanying address, was sufficiently offensive to create liability for intrusion.” And subsequent publication can matter to whether an intrusion is particularly invasive.

Plaintiffs do not suggest—and I would not conclude—that simply taking a photograph of the outside of plaintiffs’ house was an actionable invasion of privacy. But that is not all plaintiffs allege. They allege that the photograph was broadcast to hundreds of millions of viewers in connection with a television series about the sale of upscale real estate to the rich and famous. In an era of obsessive interest in fancy homes and fancy people—coupled with Internet tools that make it a simple matter to link an image of a property to an address—I believe a reasonable trier of fact could, in appropriate circumstances, conclude that Netflix’s advertisement gave rise to a cause of action for intrusion.

Because this was an ad, there were lesser constitutional concerns than with other applications of the privacy torts.

As for the anti-drone photography statute, the dissent would still have rejected the claim, albeit for a different reason: the dissent accepted the allegations that the drone must have flown too close because it “captured exterior and interior details of the house that that are not visible from any public location,” which could be “offensive to a reasonable person” within in the meaning of the law. Nonetheless, there was no “visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity,” as further required by the statute.

The dissent would also have found private nuisance properly alleged.

 

New article: History and Tradition in First Amendment Intellectual Property Cases: A Critique

 Preprint available here.

Abstract

There are indications that the "history and tradition" approach the Supreme Court applied to gun rights and abortion restrictions may be coming for First Amendment doctrine. In intellectual property cases, it already has, with the Court using historical analogies for the right of publicity, copyright, and trademark. Unlike in the Second Amendment context, where the Court has reasoned from things earlier regulators didn’t do to strike down gun regulations today, in “history and tradition” First Amendment law the Court has reasoned by broad analogy to allow new speech restrictions.   

One lesson is that the history and tradition approach does not meaningfully constrain Justices even in low-political-salience areas like copyright and trademark, outside highly politicized contexts. The manipulability of levels of generality in making historical analogies has been justly criticized, but the IP cases provide a particularly clear contrast in outcomes from those in the Second Amendment cases, despite putatively using the same method of looking to historical models before—and even in place of—applying a means-ends test or other non-analogic scrutiny.

IPSC: Closing plenary: DOGE; the First Amendment (me!); and the 50th anniversary of the Copyright Act

David Schwartz (Northwestern Pritzker School of Law), Christopher Cotropia (The George Washington University Law School), DOGE Days at the USPTO? Evidence from a Natural Experiment in Administrative Reform

PTO provides some employees w/union protections and others not. As soon as DOGE hits, nonunion staff productivity goes way down, while examiner productivity remains constant. Admin has acknowledged patent examiner union; did not try to enforce return to office mandate.

Staff makes sure drawing is sufficient and application has all necessary parts. There’s a lot of activity; staff does more than examiners—total nearly 53% of events while applicants represent about 30% (necessary activity before next step is triggered for someone else), and examiners do the rest. There’s a strong correlation b/t how busy examiners are and how busy staff is. Relatively parallel trends.

But after DOGE, activity dropped—not because people were fired/left although examiners dropped by 1% and staff dropped by 5%; result holds even normalized by employee—a 40% drop in productivity for staff and nothing significant for examiners.

What if threat of tariffs spooked applicant behavior? Checked for that; enormous PTO backlog makes unlikely, but maybe it could delay responses to OAs. Even when we sample to just account for things where applicant delay won’t matter, same results.

Implications: significant costs from admin reforms like DOGE. Abrupt intervention in administrative state that created a lot of uncertainty & ambiguity. Unappreciated benefit of benefits of unions/job security: unions are accused of resisting change. Will be studying longer term effects as well.

We didn’t look at quality, but we did look at whether they changed the mix of things they did (maybe initial responses are easier) but they didn’t.

Rebecca Tushnet (Harvard Law School) History and Tradition in First Amendment Intellectual Property Cases

I’m going to skip over as much IP doctrine as I can make myself ignore on the theory that most of you know at least some of Zacchini, Eldred, Golan, Jack Daniel’s, and Elster. I’m going to focus on trying to draw connections between the First Amendment IP cases and what we might expect from seeing history and tradition as a method expand to more of the First Amendment.

The news is not good. “History and tradition” as constitutional theory is originalism unconstrained by textualism. Unlike in the Second Amendment context, where the Court has reasoned from things earlier regulators didn’t do to strike down gun regulations today, in “history and tradition” First Amendment law the Court has reasoned by broad analogy to allow new speech restrictions.

This is not a result of politicization, even if the adoption of the method is politically driven because originalism wasn’t getting the right results. It is the result of the impossibility of using history and tradition without a theory of how to make good analogies from the past to the present. History and tradition thus does not meaningfully constrain Justices even in low-political-salience areas like copyright and trademark.

Most discussion of the risks of Bruen-izing the First Amendment has so far focused on the risks of reviving speech controls in their historical form such as blasphemy, obscenity, and unfettered defamation law. The IP story shows that it’s worse than that: it is fully possible to appeal to history and tradition to further expand control of speech beyond historic limits. At a bare minimum, the considerations present in other modes of free speech reasoning—the considerations involved in tailoring regulation to regulable harm—remain necessary even when consulting history and tradition.

As Richard Fallon noted, the strict scrutiny test “evolved simultaneously in a number of doctrinal areas” by the 1960s and quickly came to “dominat[e] numerous fields of constitutional law.”  Strict scrutiny as a standard means that the government must show that its actions were “narrowly tailored” to further a “compelling government interest,” and that they were the “least restrictive means” to further that interest. In First Amendment cases, it is usually strict in theory and fatal in fact.

Not too long ago, the Roberts Court seemed destined to use strict scrutiny liberally to invalidate many government speech regulations. The court struck down campaign finance laws, privacy laws, and anti-animal crush video laws, and in 2015, the Court announced that strict scrutiny would apply to all content-based regulations, including noncensorious regulations like those of a city trying to specify which signs can go where and for how long. But, the composition of the federal courts has changed, and the Supreme Court is clearly open to throwing out decades of precedent.

In the Second Amendment case Bruen v. New York, the Supreme Court held that only gun restrictions that met a stringent historical compatibility test would be allowed. But judges are rarely trained historians, and history tends not to speak in one voice. Reflecting some of the resulting problems, in a followup case, Rahimi, a majority of the Court reiterated that its test did not require a “historical twin,” but rather a “historical analogue.”

To understate matters, it is not yet clear what constitutes a sufficiently close analogy. One possibility is that the analogy is sufficiently close when the Court tells us it is. But that’s not law.

Any serious attempt to apply history and tradition as a legal standard has to grapple with the well-known challenges of analogical reasoning. And unfortunately the IP cases do not suggest that the Court will be able to do so.  The unifying factor in the First Amendment IP cases is their reliance on history and tradition to uphold a speech restriction whose contours had been substantially expanded from those known when the Constitution—or the Fourteenth Amendment—was adopted.

In the gun cases, the Court begins with the presumptive coverage of gun rights (the people have such rights, for self-defense) and then looks for whether history approves of the challenged limits on those rights. In the First Amendment IP cases, the Court does not begin with the presumptive coverage of “the freedom of speech,” but rather with the historical compatibility of intellectual property claims with free speech. This sets up the result: new IP rights are also fine.

In Zacchini, for example, the Supreme Court consistently characterized the conflict as one between the television station’s First Amendment rights to report news and the performer’s interest in his “entire act,” the latter of which was equivalent to a well-recognized common-law copyright claim.  Lower courts then immediately disregarded the Court’s analogy and started approving almost anything called “right of publicity.” But Common-law copyright in an entire performance is very different from controlling any mention or evocation of an identity. Bruen-type attention to the right of publicity’s different subject matter (what Justice Thomas called the “how” of regulation) and justifications (what he called the “why” of regulation) compared to copyright could have helped limit overreaching claims.

More recently, the Court used history and tradition to reject two First Amendment challenges to new copyright legislation. Rather than analyzing whether these changes were speech regulations subject to intermediate or strict scrutiny, the Supreme Court reasoned that term extension and creating federal copyrights where none had previously existed were both things Congress had done before, so no additional First Amendment analysis was required. 

As long as Congress acted within the “traditional contours” of copyright, the Court told us, its acts required no further scrutiny. But what are those traditional contours, since we know after Eldred and Golan that those contours don’t include “a work’s term of protection is the term specified when it was created” or “a work in the public domain stays in the public domain”? Copyright’s subject matter, covered rights, and scope of what constitutes infringement of a right have all expanded dramatically since the Founding. I should note that I don’t generally oppose these expansions; my argument is instead that the thing we call copyright is very different from what the Framers called copyright, so saying that their copyright was consistent with the freedom of speech doesn’t tell us an awful lot about our copyright without a theory of how to compare theirs to ours even if “the freedom of speech” remains constant.

The Court did identify fair use and the idea/expression distinction as key traditional contours of copyright. But Congress has passed laws that cut sharply back on fair use in the digital context. Lower courts both before and after Golan have said it’s constitutional to prohibit “circumvention” of digital access controls even if that makes many fair uses impossible. If your only guideline is “traditional contours” and there is a history of contracting freedom to use copyrighted works, then it’s difficult to tell when the traditional contours have been unconstitutionally reshaped.

Even more recently, trademark law has seen the same untethered use of history and tradition. In Jack Daniel’s, the court essentially reasoned that, because trademark law is historically grounded, source-identifying uses that cause deception must not be part of the speech historically protected by the First Amendment.

But there are even worse problems with the analogy to founding-era trademark than there are with analogizing to founding-era copyright, given the lack of a substantive federal registration system until the mid-20th century, the vast expansion of subject matter, and the vast expansion of what constitutes infringement, not to mention the invention of dilution.

Then, in Vidal v. Elster, most of the Justices appealed to history and tradition as supporting the names clause that bars registration of a living person’s name without their consent. But the cracks in history and tradition were finally noticeable even to them: Should the analysis be at the level of the purpose of having a trademark registration system? A registration system needs to make content based distinctions to function. Does that mean that any content-based regulation is ok? That would allow Congress to, for example, deny registration to any trademark that made reference to birth control or abortion. That’s a very broad analogy.

Justice Thomas’s opinion for the Court relied on the long tradition of providing unfair competition protection to names in tort lawsuits brought by the person whose name it is, as well as of allowing people to use their own names in commerce even when someone else has already used that name in a line of business. That is, “a tradition of restricting the trademarking of names has coexisted with the First Amendment … Though the particulars of the doctrine have shifted over time, the consistent through line is that a person generally had a claim only on his own name.”

This is mostly true, but unhelpful: First, the reference to “trademarking” a name is ahistorical because, historically, trademarks arose from use in commerce. “Trademark” wasn’t a verb. The registration system is not the same thing as allowing a private right of action for name confusion. This is a clear example of how the history and tradition approach expands judicial freedom—Justice Thomas didn’t even seem to notice that he was generalizing from individual private infringement suits to a government-run registration system that bars certain registrations even in the absence of private opposition.

Second, even if we accept the jump between private tort claims challenging specific uses and a statutory restriction on registration, that common-law history has an obvious link with Section 2(a), the prohibition on false association. Section 2(c) goes further—its only independent utility is when it applies to a mark that wouldn’t falsely suggest a connection. Barring registration of DEMOCRATS AGAINST ELON MUSK doesn’t seem like it’s going to facilitate source identification. This is especially true given the difference between registration and actual use: Even without a registration, Elster can (for now) sell his TRUMP TOO SMALL T-shirts, thus inflicting the same source- or reputation-affecting consequences on the world.

Bruen directed courts to consider whether new gun regulations were sufficiently analogous to past ones in the “how” and the “why” of their burden on a law-abiding citizen’s right to armed self-defense. By contrast, in Elster, Justice Thomas’s opinion ignored both the how of past regulations—through infringement claims—and the why—fraud prevention instead of protection for a free-floating interest in personality.

Justice Barrett’s concurrence was attentive to this gap. As she wrote: “[T]he Court’s evidence, consisting of loosely related cases from the late-19th and early-20th centuries, does not establish a historical analogue for the names clause.” The ability to cherry-pick a few cases out of the historical record allows for a lot of manipulation, especially in a common-law nation where there is no such thing as an unbroken, consistent line of cases.

The majority approach has both a timing problem and a conceptual problem. For timing, why is the late-19th and early-20th century important when it was neither the Founding nor immediately around Reconstruction? Conceptually, Barrett wrote: “[T]he Court never explains why hunting for historical forebears on the restriction-by-restriction basis is the right way to analyze the constitutional question.”

A key issue is that the founding era had comparatively few laws and more reliance on judicially recognized causes of action than we do now. In common law adjudication, even when judges articulated general principles, they were applying them to particular facts, so limiting principles that weren’t presently relevant in the case before them were often omitted from discussion. Perhaps more importantly, the analogy between the historical caselaw and a statute would have to come from identifying the rule emerging from the caselaw and comparing it to the statute. And any grouping of cases to give a “rule” has to have an underlying theory of what unites these cases: a classic level of generality problem. “Historical cases were about protecting rights when names were used as source-identifiers” is one theory, but so is “historical cases were about protecting rights when names were used deceptively as source-identifiers,” which creates a different baseline.

History and tradition is probably going to play a bigger role in future First Amendment cases, as this year’s Paxton v. NetChoice decision upholding age verification requirements for certain websites signals.  In Paxton, the Court used a history of regulating minors’ access to obscene-for-minors speech to identify a legitimate state interest in identity verification legislation. But website age verification is unlike brick-and-mortar age verification because it can potentially be saved for government review or exposed to hackers (something that just happened with the identity verification for a women-only app, Tea and its male competitor TeaOnHer), and it is very expensive, as opposed to the very low marginal cost of checking IDs in a store staffed by humans.

The broader lesson is that a law’s overbreadth, underbreadth, and harms compared to the alternatives for achieving the government’s interests are necessary considerations, but ones not facially addressed by history and tradition. History simply doesn’t supply its own analytic framework, and “sufficiently close analogy” is not all that helpful.

The flabbiness of history currently works differently for different constitutional rights. Most of the work of the history and tradition test in Second Amendment law comes from what legislators didn’t do—they didn’t regulate guns in particular ways. In the First Amendment context, by contrast, courts have extrapolated from private rights courts and legislatures granted in the past to allow them to grant new and expanded private rights in the present for similar reasons. Anti-gun regulation judges can dismiss inconvenient past examples of gun regulation as misunderstandings. Pro-IP rights judges can seize on outlier cases, or simply use the general justifications for IP rights expressed in past cases and treat them in isolation from the countervailing considerations that formerly limited those rights.

The expansion of relevant evidence beyond text to any practice (or nonpractice) of legal regulation aids in the project of judicial freedom: In such a vast corpus, who could deny that there must be some errors and misunderstandings in there? At the same time, judges can dismiss inconvenient past limits on IP rights as matters of legislative grace, and can always find at least some expansive descriptions of the private interest at issue, which then justifies further expanding the scope of the right.

The manipulability of levels of generality in defining an interest grounded in history and tradition requires more legal tools than are currently on display—and those tools cannot be found in “the past.” They require interpretation and judgment.

Therefore, although the tiers of scrutiny may be shaky for various reasons, the concerns they implement will not go away. In the First Amendment, those animating concerns include: worry about government suppression of views it doesn’t like, whether by viewpoint-based laws or laws that in practice discriminate against particular viewpoints; related worry about government’s ability to identify when speech actually causes harm rather than just causing upset; not unrelated but separate concerns about overbreadth and underbreadth, where poor targeting of a regulation may reveal bad motives or just unwarranted discrimination against certain kinds of speakers when other speech causes the same harm but remains unregulated.

One useful question is whether a speech restriction matches well to the putative harm it addresses. If its harm-prevention claim relies on an extended causal chain that could be interrupted by other factors, or is unpersuasive as a justification for the law at issue because of the amount of harmful speech it leaves untouched or the amount of harmless speech it suppresses, then we should identify a constitutional problem.

That is, considerations of fit—usually considered as part of the second and third prongs of strict or intermediate scrutiny—cannot and should not disappear even if the “compelling government interest” and “substantial government interest” standards are replaced by a test that requires the government interest asserted to be recognized by US history and tradition. Indeed, tailoring concerns are likely the only way to evaluate whether newly enacted laws are consistent with a history and tradition of allowing some speech regulations and not others. Historical analogies can start us off, but we will still need to ask about tailoring and alternatives.

Zacchini, the right of publicity case, could even offer us a potential model if we took the historical analogy seriously as a limit on what lawmakers can enact, as in the Second Amendment context. After all, there were reasons why common-law copyright in unfixed performances didn’t prevent most reporting about what people said or looked like.  Better still though would be to take on directly the project of identifying the relevant government interest and the extent of a regulation’s impact on speech that ought to be protected.

[very good questions I didn’t get a chance to write down, sorry! Among others, Mark Lemley suggested a Bruen-type approach: if they didn’t do it before, they can’t do it now. There’s a lot of debate in the broader con law literature, but I think it’s probably more important to make sure that the competing interests are defined at the same level of generality—freedom to choose nonconfusing marks, for example, instead of freedom to use someone else’s name in a nonconfusing way, if you’re going to describe “source indication” at a very high level of generality as a justification for the names clause.

Jake Linford asked whether the relatively recent historical pedigree of strict scrutiny gave me any pause. No. First, I carry no brief for strict scrutiny as such; European congruence and proportionality also provide tools to address causation/harm/tailoring issues that history & tradition can’t alone address. Second, there is a difference between a constitutional commitment and how that constitutional commitment is implemented. NYT v. Sullivan is a good example—defamation was well known as a legitimate cause of action, but its dangers were also well known and the SCt thought we’d learned enough about them to put new procedural barriers in place. Another example I didn’t mention is the Miranda warning—when we know that specific problems recur, we can change our implementation of the constitutional guarantee even as the guarantee remains the same.]

Elizabeth Townsend Gard (Tulane University Law School), Zvi Rosen (University of New Hampshire Franklin Pierce School of Law), 50 Year Review of the 1976 Copyright Act

Gard is new EIC of J of © Society; looking back on 50 years and forward to next 50 years b/c Next Great © Act seems unlikely. Doing interviews w/prominent scholars/lawyers/legislators. We want to take a snapshot of © in 2026, so engagement is welcome; there’s going to be a conference at GW in Oct. 2026. Younger scholars encouraged. Copyright Society Research Guides: for scholars to use.

AI voice cloning opinion narrows claims to ROP, rejecting TM and (most) copyright theories

Lehrman v. Lovo, Inc., --- F.Supp.3d ----, 2025 WL 1902547, 24-CV-3770 (JPO) (S.D.N.Y. Jul. 10, 2025)

Plaintiffs alleged that Lovo misled them about its use of their voices, using AI to synthesize and sell unauthorized “clones” of their voices. They sued for violations of New York civil rights and consumer protection laws, the Lanham Act, and the Copyright Act, along with common-law contract, fraud, conversion, unjust enrichment, and unfair competition claims. Lovo was partially successful on its motion to dismiss, but had to deal with the NY ROP claims, as well as consumer protection and breach of contract claims. I might not agree with every detail of the extensive opinion, but this is a useful map of the issues. It’s also a reminder of the hazards of not contracting properly with people you don’t employ.

Plaintiffs Lehrman and Sage are voice-over actors. Lovo “sells a text-to-speech subscription service that allows its clients to generate voice-over narrations at a fraction of the cost of the traditional model.” It claims that its software, Genny, was “created using ‘1000s of voices.’ ” Genny is allegedly capable of creating a voice “clone,” which “refers to a virtual copy of a real person’s voice.” It advertised its voice cloning service by emphasizing how similar its cloned voices are to the originals from which they are derived. In one marketing video, Lovo stated, “you will hear five speakers whose voices have been cloned to near perfection. Their tone, accent, and even mannerisms are fully learned by our AI voice system.” One of Lovo’s co-founders described a cloned voice as a replacement for “a real human voice,” allowing users of Lovo’s platform to “make that voice say anything that you want, even if that person has never actually said that before in their life.”

Lovo advertises the commercial use of its platform to “Save $$ and time on voiceovers.” Allegedly, “Lovo represents to its customers that Lovo is granting full commercial rights for all content generated using its platform to users who subscribe to any of its paid plans,” which cover “any monetized, business-related uses such as videos, audio books, advertising, promotion, web page blogging, [and] product integration.”

Lovo originally solicited Lehrman and Sage for the projects relevant to this action on an online marketplace for freelance services called Fiverr. A Lovo employee allegedly contacted Lehrman and hired him to “provide voice recordings for ‘research purposes,’” assuring him that the company would use the recordings for “research purposes only,” and that such research would be only “internal” and “academic” in nature. Lehrman wrote back, asking for a “guarantee that these scripts will not be used for anything other than your specific research project,” to which the employee replied: “The scripts will not be used for anything else ....” The employee further confirmed that the script would not be “repurposed and used in a different order.” He was paid $1,200 for his work.

Similarly, Sage asked what the proposed recordings would be used for, and the Lovo rep (a principal) replied: “These are test scripts for radio ads. They will not be disclosed externally, and will only be consumed internally, so will not require rights of any sort.” Sage asked him to to confirm that the recordings would not be used “in broadcast,” and he again repeated the previous statement. Lovo paid Sage $400 for her work.

Both of them ultimately (after filing suit) registered their scripted performances with the Copyright Office.

Plaintiffs allegedly first learned that their voices had been used in unanticipated ways when they listened to an episode of the Deadline Strike Talk podcast narrated in part by an artificial voice produced by Lovo’s software. They alleged that the voice used in the podcast was “identical to Mr. Lehrman’s voice.” Allegedly, “[n]umerous people who heard the podcast,” including “friends” and “professional colleagues” “told Mr. Lehrman or Ms. Sage” that the “voice on the podcast was virtually identical to Mr. Lehrman’s voice,” and that “the cloned voice would undoubtedly be mistaken for Mr. Lehrman’s actual voice.” They also alleged, with declaration support, that professionals “experience[d] [in] discerning and conveying small differences in voice tone, quality, timbre, and delivery” believe that “Lovo’s cloned voice is a replica of Mr. Lehrman’s real voice.” Lehrman allegedly found that Lovo “had been marketing [the clone of his voice] as part of its subscription service under the stage name ‘Kyle Snow.’ ” The Kyle Snow voice was also in advertisements on Lovo’s website and YouTube. For example, Lovo allegedly advertised the Kyle Snow voice as “an ideal male voice generator ... for all kinds of content” due to his “upbeat tone and slightly faster talking speed.”

Sage also allegedly discovered that Lovo had created a clone of her voice named “Sally Coleman” that was available to Lovo’s subscribers. This was allegedly marketed using “side-by-side” comparisons of Sage’s original audio recordings—the ones she provided via Fiverr—and the “cloned version of her voice,” including in an investor pitch that was posted on YouTube. 

Plaintiffs brought individual claims and also sought to represent a voice actor class and a consumer class of consumers who bought the Lovo software and used the voices.

Breach of contract: Sufficiently pled.

Lanham Act false association: Failed for want of a mark that was used as a mark. Plaintiffs didn’t argue that they could bring §43(a)(1)(A) claims without a valid mark. Persona can be a “mark”—even for a noncelebrity. But celebrity endorsement cases have involved “the unauthorized use of a celebrity’s likeness on merchandise, implying that the celebrity approves of the merchandise or is affiliated with the seller,” or “the explicit use of a celebrity’s likeness in advertising or to promote goods or services.”

Plaintiffs alleged that “they are well-known and sought-after voice actors whose voices are their recognizable calling cards,” which was enough at this stage to make the use of their voices capable of causing consumer confusion. The problem was that the allegations didn’t suggest trademark use. “Because marks can take essentially any form, courts must therefore be careful to ensure that they receive protection only when used as contemplated by the statute—that is, as marks.” The court found celebrity endorsement cases to be an “uneas[y]” fit with this principle, “as celebrities’ personas are also their products,” though at least for advertising cases the service of endorsement seems like the trademark use. Citing Jennifer Rothman, the court emphasized that “personal marks” are treated differently from other marks—they’re harder to register, and the law “is highly skeptical of efforts to restrict individuals from using their own identities in trade” and doesn’t allow “transfer attributes of one’s identity—such as personal skill as an artisan—when one transfers trademark rights in one’s name or likeness.” [My own view is that the latter point isn’t really relevant—it’s just not possible to do that; maybe that means that many name transfers are transfers in gross and should fail, but that is straying pretty far from our concerns here.]

The key issue here was that this wasn’t a celebrity endorsement case: the voices were themselves the products/services being sold. “Plaintiffs here use their voices in ways that are clearly separable from their identities and personalities. Their clients pay them to produce recordings of themselves narrating scripts, which the clients then own and use to produce content, as authorized by their contracts with Plaintiffs.” Thus, their voices “serve dual functions as both ‘one of the most palpable ways identity is manifested,’ and as ordinary services in the voice-over market.” Thus, even as to the alleged false endorsement or “business affiliation” confusion, plaintiffs’ voices were “protectable only to the extent that they function primarily as source identifiers rather than as products themselves.” The court analogized to trade dress product design claims, which are difficult because trademark terminology “is unsuited for application to the product itself.”

Plaintiffs failed to show that their voices were protectable marks. They didn’t plead secondary meaning or the relevant factors except for “a few conclusory references to the recognizability of their voices” and the fact that “Plaintiffs’ work has been sought out by large companies.” Regardless, “Plaintiffs have not alleged that their voices are primarily significant as brands rather than as services to which brands might be attached.” As the court noted, “even extremely famous celebrities are barred from asserting Section 43(a)(1) claims based on the use of their likenesses as products rather than as source-identifying marks.” Product use was descriptive use, not trademark use. An alternate rule would threaten a new voice actor “whose voice happens to sound highly similar to either Lehrman’s or Sage’s,” especially given that identicality isn’t required for likely confusion. The court also pointed out that unregistered trademark rights can be assigned, with “unsettling” consequences for voices:

To allow any artist, actor, or other creative tradesperson to sue their doppelgangers for trademark infringement, as Plaintiffs’ theory would allow, would “create[e] a cause of action for, in effect, plagiarism,” and would be incompatible with the careful ways that courts have circumscribed the Lanham Act to avoid unduly burdening competition and free expression. [Citing Dastar.]

Lookalike cases involving ads involve “appropriating the identity and the goodwill of the famous plaintiffs—that is, pretending to be Woody Allen—rather than merely engaging in the same trade while happening to look like the famous plaintiffs.” And, the court noted, Allen’s cases involved use of identity in ads, not his lookalike’s presence as part of a good or service. “To allow Plaintiffs to protect the downstream uses of their voices merely because Plaintiffs originated them would disrupt the ‘carefully crafted bargain’ struck by patent and copyright law and ‘misuse’ the Lanham Act to ‘to reward [artisans] for their innovating in creating a particular [work or] device.’”

What we’re seeing, post-JDI, is the further development of a “use as a mark” doctrine to cabin trademark’s nearly unchecked expansion, unfortunately mostly without discussion of the relevant considerations and how they relate to the purposes of trademark law. That’s present here, yay! It would be great for more courts to admit that this not an entirely empirical assessment, or at least it’s only empirical at the categorical level. (See also the pre-JDI Louboutin v. YSL case, the standout entry in the “ipse dixit use as a mark” cases.) In addition, JDI’s language about how even partial TM use is bad is, as has always been apparent, complete nonsense (in the absence of a materiality requirement).

False advertising: Two theories here. First, plaintiffs alleged that marketing their voices under the names “Kyle Snow” and “Sally Coleman” was literally false. The court disagreed: “Plaintiffs point to numerous examples of Lovo marketing the voices as what they truly are—synthetic ‘clones’ of real actors’ voices.” Also, Lovo falsely allegedly stated that the cloned voices “came with all commercial rights.” But even if that’s true, “such misrepresentations do not concern ‘the nature, characteristics, qualities, or geographic origin’ of Plaintiffs’ cloned voices.” (Dastar.)

Second, plaintiffs alleged that Lovo “confus[ed] potential customers ... as to [Plaintiffs’] affiliation with Lovo and the ability to use the Lovo service in place of traditional access to these actors,” and that Lovo “misrepresent[ed] that [Plaintiffs] have partnered with Lovo.” Those were not actionable as false advertising; they were repeats of the false affiliation claim, and “Plaintiffs cannot avoid the requirement of a protectable mark by ‘disguis[ing] a § 43(a)(1)(A) trademark infringement and unfair competition claim as a false advertising § 43(a)(1)(B) claim.’”

In addition, plaintiffs failed to identify any false implication or consumer confusion from Lovo’s advertising, “as opposed to being confused by the similarity of the synthetic voices to Plaintiffs’ voices when heard in the wild. In fact, Plaintiffs actually allege that Lovo’s advertising was clear on the lack of connection between Plaintiffs and Lovo’s voice clones.”

Even if Lovo made misrepresentations, plaintiffs didn’t plead actual injury. Where “the defendant and plaintiffs are competitors in the same market,” materiality and injury usually blend together, but plaintiffs didn’t allege that their losses were related to actionable false claims in Lovo’s advertising. Instead, their losses were allegedly due to the existence of Lovo’s product: “Put differently, Lovo’s services are more desirable to some customers because they are cheaper and more accessible. While Plaintiffs might have a different cause of action for such competitive harm, it does not sound in Lanham Act false advertising.”

Copyright: Four claims, only one of which goes forward. The court approved of the sequence (1) complaint filed without any copyright claims, (2) registration secured, (3) complaint amended to add copyright claims as consistent with Fourth Estate, and I think I agree, since (1) was far from a sham complaint. The discovery rule applied for statute of limitations purposes,

Contractual defenses couldn’t be resolved on a motion to dismiss, even without taking into consideration the chat messages exchanged by the parties. Turns out, Fiverr’s TOS provide special rules for “Voice Over Gigs” “that are inconsistent with a transfer of unrestricted copyrights.” Despite a general work for hire clause, the TOS stated that buyers of voice-over recordings are only “purchasing basic rights, ... allowing them to use the work forever and for any purpose except for commercials, radio, television and internet commercial spots.” Buyers need to purchase higher-tier packages of either “Commercial Rights,” in order to “promote a product and/or service,” or “Full Broadcast Rights,” in order to use the recordings “in radio, television and internet commercials.” Lovo didn’t do that.

First, Sage successfully pled a direct infringement claim based on Lovo’s use of her actual voice recording in an investor presentation, pitches to investors, at a conference, and in Lovo’s external marketing materials. (Although this is for later, the fair use defense for comparative advertising is a distinct subset of copyright fair use cases where defendants generally win. How else are they supposed to substantiate their claim of being as good as a human?)

Both plaintiffs alleged direct infringement based on Lovo’s use of their recordings to train the Genny AI model. These claims failed “for lack of adequate explanation in the complaint.” They didn’t explain “what training is or how it works, even at a very high level of generality. The Court therefore cannot ascertain or reasonably infer which exclusive rights Lovo allegedly infringed, or how.” But amendment was possible, including using information-and-belief pleading. (On the other hand, it might be hard to plead what was outside the scope of the license, even as modified by the chats.)

Copyright infringement by the AI outputs: Here there was really no hope. Sound recording copyright only covers exact duplication of the fixed sounds, which was not alleged here as even a possibility for Genny. And we know that a voice isn’t copyrightable, since that’s what gives them their valid ROP claims.

Contributory infringement: based on AI outputs, therefore failed.

NY ROP: Although NY’s ROP is narrower than other states’, and only covers uses in, essentially, advertising, there was enough here to proceed. (Query how much of plaintiffs’ damage comes from the advertising and not the underlying product; also, later on the incidental use defense—advertising for a product that does not itself violate the ROP is protected where the advertising actually relates to the product—may come into play.)

The statute of limitations is one year, but the republication exception can restart the limitations period, and applied here. But are digital replicas even covered? Lovo argued that NY’s 2021 statutory protection for digital replicas of deceased persons meant that expressio unius applied to exclude that from the main ROP. But that reasoning ignored context. “Just before the amendment was proposed, New York courts held that digital replicas of living persons—at least ones with a visual component—were already covered by the law. There is no indication in the text of Sections 50 and 50-f, or in the legislative history, that the amendment was intended to overturn this precedent, nor to exclude the possibility of a similar holding with respect to audio-only voice clones.” The same could be true of voice. “If anything, the Court views ‘voice’ as having a broader scope than a term like ‘picture,’ because it cannot plausibly be read to refer to any particular form of media or representative device. While Section 51’s statutory ROP “is to be narrowly read” in light of its legislative history, it is nonetheless “not to be obeyed grudgingly by construing it narrowly and treating it as though it did not exist for any purpose other than that embraced within the strict construction of its words.”

As to the substance, plaintiffs sufficiently alleged recognizability and Lovo itself allegedly represented that its creations are “practically indistinguishable from the ‘real’ voice.” While “New York courts have consistently dismissed Section 51 claims based on the use of a fictitious name, even if the depiction at issue evokes some characteristics of the person or the person is identifiable by reference to external sources,” “those cases all involve a fictional character sharing certain discrete attributes or traits with a Section 51 plaintiff, not the use of the plaintiff’s portrait or voice.” “Lovo cannot escape liability merely because it appended fictitious names to those appropriated voices. To hold otherwise would carve out a massive, judicially created loophole in the statute with no textual or doctrinal basis.”

Plaintiffs also adequately alleged use in both advertising and trade. “Advertising purposes has been defined as use in, or as part of, an advertisement or solicitation for patronage of a particular product or service, and trade purposes involves use which would draw trade to the firm,” although the statute doesn’t reach newsworthy uses or matters of public interest. Lovo didn’t raise a First Amendment, newsworthiness, or public interest defense.

The court is a little wobbly on whether the underlying product itself counts as “trade” purposes, though my reading of the NY cases is that it can’t (emphasis added to last sentence):

Whether or not the solicitation of investors itself counts as an “advertisement,” the function of the “investor presentation, which was later posted publicly online, is plausibly understood as promoting Lovo’s underlying product. The same goes for the use of Lehrman’s voice in tutorials and promotional articles posted online. Moreover, even if the voices were not used in formal advertisements or solicitations, they were clearly used for commercial purposes, and to draw trade to the firm. It is plausible to infer that, by illustrating the value of the product and helping show prospective customers how to use it, Lovo used its publicly posted tutorials to increase the appeal of its software, acquire subscribers, and retain subscribers it already had. Plaintiffs allege even that Lehrman’s cloned voice was Lovo’s default product and one of its self-described “best” voices.

NY GBL: Partially survives, raising an interesting Dastar preemption issue. Section 349 prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service” and Section 350 prohibits “[f]alse advertising in the conduct of any business, trade or commerce or in the furnishing of any service.”  “To successfully assert a claim under either section, ‘a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.’ ”

Mostly, plaintiffs failed to identify material misrepresentations to the public; they couldn’t rely on misrepresentations to them because they were not acting as consumers in those transactions, and Sections 349 and 350 do not reach such “narrow, private dispute[s].”

However, plaintiffs adequately alleged that Lovo materially misrepresented the scope of the “commercial rights” that it promised to provide to its subscribers, thereby making its offerings appear more attractive. Lovo’s consumers thus “purchased ... [but] did not receive a product with the full value with unlimited usage rights, which would have been a product with legitimately acquired and/or created voices.” Sections 349 and 350 aren’t limited to “nature, characteristics, qualities, or geographic origin.”

Note: While statutory interpretation got us Dastar, if it’s true that extending the Lanham Act to licensing claims would cause a conflict with copyright law, it’s equally true that extending state law to licensing claims would cause a conflict with copyright law, creating conflict preemption. Cf. Jackson v. Roberts (finding preemption of a ROP claim). But the court says that plaintiffs “could not bring a similar GBL claim based on alleged misrepresentations about a copyright license, as such a claim would be preempted by the Copyright Act.” I am not sure about the difference between advertising “commercial rights” or “unrestricted use” and advertising “properly licensed,” but ok.

“Lovo promised its subscribers that they could use Lovo’s voice clones without legal restrictions. While Lovo was correct with respect to federal copyright and trademark law, it was incorrect with respect to New York law. Lovo’s consumers could, like Lovo itself, be liable under Sections 50 and 51 of the NYCRL.” [Again, the language here is open, but I would argue that the only liability for customers would have to be for their own uses in advertising/trade.]

Lovo’s conduct with respect to its subscribers was “consumer oriented” in that it was “directed to consumers” and had “a broader impact on consumers at large.” Although the mere unauthorized use of the plaintiffs’ images would not be “ ‘consumer-oriented in the sense that it potentially affects similarly situated consumers,” reselling the voices to third-party consumers for downstream use by those consumers was relevantly different.

And plaintiffs adequately alleged that they suffered injury from Lovo’s misrepresentations in the form of diverted customers and lost sales. “While it is true that Lovo offered its voice clones at lower prices than the services of traditional voice actors, Lovo was able to poach Plaintiffs’ customers only because it purported to offer products that its subscribers could legally use—that is, because it engaged in misrepresentations made unlawful by Sections 349 and 350.”

Fraud claims failed because (1) plaintiffs didn’t adequately plead damages; although they alleged customer diversion/harm to brand value, they didn’t quantify the “true value of the recordings they sold to Lovo, as opposed to what Lovo paid,” which is the measure of fraud damages in NY, and (2) their fraud claims merely restated their breach of contract claims, which isn’t ok in NY “when the only fraud alleged is that the defendant was not sincere when it promised to perform under the contract.”

Unjust enrichment, conversion, and common law unfair competition claims were preempted by the New York Civil Rights law, which preempts “all common law claims based on unauthorized use of name, image, or personality, including unjust enrichment claims.” Relatedly, unfair competition is like the failed Lanham Act claims (except also requires bad faith), and there were no facts alleged “supporting an inference that Lovo acted with the intent of generating confusion or coopting Plaintiffs’ reputations (as opposed to the desirable characteristics of their voices).”