There have been instances in which a Right of Publicity claim has been preempted by Plaintiff’s copyright infringement claim. The Ninth Circuit recently found that a Plaintiff actor’s claim that his Right of Publicity had been violated was preempted by the Copyright Act because the “factual basis of his right of publicity claim was the unauthorized reproduction of his performance on the DVDs.” Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1154 (9th Cir. 2010). Therefore, the “essence” of Plaintiff’s claim was the reproduction and distribution of DVDs without authorization, which fell under Copyright protection. Explaining the rationale behind this, the Ninth Circuit stated that: “Were we to conclude that [Plaintiff’s] misappropriation claim was not preempted by the Copyright Act, then virtually every use of a copyright[] would infringe upon the original performer’s right of publicity.” Laws v. Sony Music Entm’t, Inc., 448 F.3d 1134, 1145 (9th Cir. 2006).
最近有一案例，知名度優先著作權而受保護。第九巡迴法院最近認定，原告起訴主張其知名度被侵害優先適用著作權法而受保護；因該知名度訴求之事實上依據係未經其授權重製DVD上 之表演，Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1154 (9th Cir. 2010). 所以，原告訴求之重製及散布DVDs，其落入著作權之保護。詮釋其背後之理論，第九巡迴法院闡述，我們總結原告起訴主張盜用著作權並不應先適用，實際上每一利用著作權係侵害原創表演者之知名度。Laws v. Sony Music Entm’t, Inc., 448 F.3d 1134, 1145 (9th Cir. 2006).
