David Weiskopf writes: This past week, in Jules Jordan Video vs. 144942 Canada (August 16, 2010), in which Plaintiff (an adult film star) sued Defendant for its pirating and redistributing of plaintiff's films, the Ninth Circuit held, in what I consider to be a very troubling ruling, that the Plaintiff's (California-based) right of publicity claim was preempted by his available claims for copyright infringement under federal copyright law. Specifically, in reversing the lower District Court and vacating the judgment in favor of plaintiff, the Court's three judge panel (which included Judge Kozinski, who, you might remember, famously dissented from the Ninth Circuit's Order rejecting the suggestion of an en banc hearing in Wendt vs. Host International, Inc., based in part on his argument that the Ninth Circuit should have found that that the right of publicity claim at issue was preempted by the the actors' federal copyright claims) held that "[Plaintiff's] right of publicity claim falls within the subject matter of copyright, and that the rights he asserts are equivalent to the rights within the scope of Section 106 of the Copyright Act. The essence of [Plaintiff's] claim is that [Defendants] reproduced and distributed the DVDs without authorization. [Plaintiff's] claim is under the Copyright Act." The Court's primary reasoning appears based on the facts of the case, where the Court makes clear that Defendant's infringing acts were comprised solely of reproducing and distributing pirated DVDs; Defendant did not otherwise use Plaintiff's name or likeness in promoting the fake DVDs, but simply redistributed the illicitly made copies containing the original and otherwise properly authorized performance (likeness) of Plaintiff.
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