Paola Canas et al vs.

Bay Entertainment 9/28/2021

Facts

Who sues whom on what cause of action for what remedy? (trial court level)

Paola Canas (petitioner) sues Bay Entertainment (respondent) for violating right of publicity,
portraying them in a false light and violating the Lantham Act (trademark registration)

Arizona Superior Court, Maricopa County J. Lisa Flores

Respondent publishes advertisements and social media posts over a period of two years using
copyrighted images of models and social media influencers. Petitioners are not paid for use of
photos and did not consent to use.

Procedural Posture
Court of Appeals Arizona, Division 1

Appeal of Dismissal

Case Dismissed on Motion for Judgment based on argument that right of publicity is only
a protected right for soldiers; that federal copyright laws preempt Appellants right of
publicity claims and that no reasonable person would consider the association as a
violation of the Lantham Act aka highly offensive.

Issues

Does Arizona protect the right of publicity to the general public?

Does the Federal Copyright Act preempt a claim for violation of publicity in this case?
Can false light claims be resolved in a motion for judgment?

Rules

What rule(s) do(es) the court APPLY to decide the case? (avoid dicta)

1. A statute establishing one right does not disclude other rights:

a. Orca v Noder Ariz 2014 “if legislature seeks to preempt a case of action. The
laws text pr at least the legislative record should say so explicitly”.
b. ARS § 12-761 “The rights and remedies provided in this section supplement any
other rights and remedies provided by law, including common law right of
privacy.”
 c. See in re Estate of Reynolds )adopting Restatement of Unfair Competition) “ARS
12-761 supplements but does not supplant the common law protection against
non-consenual publicity”

2. Arizona protects the right of publicity under common law.

a. Reed vs Real Detective 1945 Right of Privacy
b. Reynolds…extend[s] right of privacy to right of publicity to a commercial injury”
under “appropriation for commercial or trade purposes”

3. Federal Copyright law does not preempt right to publicity simply because a
trademark/personal likeness is contained in a copyrightable medium, because it deals
not with copyrighted photographs but the likeness contained therein , which is protected
by the Lantham Act under trademark laws.
a. No Doubt vs. Activision 2010 “non copyrightable personal attribute rather than
personal performance, Copyright Act does not preempt claims.
b. Downing V Abercrombie & Fitch 2001 “Subkect matter of right to publicity claim
is the name or the likeness, which ‘does not become a work of authorship simply
because it is embodied in a copyrightable work”
4. False light claims cannot be resolved on a motion for judgment that no claim was stated.
a. Claim was stated as a violation of the second instances of false light under
Restatement of Torts “false implication about the individuals”
b. See Desert Palm Survical Group v. Petta 2015 “jury was in the best position to
resolve… material questions of fact”.

Holding/Disposition of Court

The apellant’s right to privacy is protected in Arizona under common law and is not prempted by
Federal Copyright law. The appelant’s false light claim cannot be dismissed based on lack of
claim as this is a factual issue to be determined by a jury, not an issue of law.

Analysis

What arguments does the appellee make?

Arizona does not protect public’s right to publicity.

Federal Copyright Law preempts claims on copyrightable materials.
Association with a Cowboy Bar is not “highly offensive” or tortious and therefore there is no
claim for false light.

What arguments does the appellent make?

Arizona Common Law protects right to publicity.

Federal Copyright Act does not preempt likeness and trademark protections under the Lantham
Act.
False Light Claims can be based on a false implication about an individual.

How did the court respond to those respective arguments?

Agreed with appellant.

Why did the court rule the way it did?

Just because AZ 12-761 denotes a soldiers right to privacy does not mean it precludes a
civilians right to privacy as pre established in case law. Likeness of a Social Media Influencer
and/or Model is considered a trademark covered under the Lantham Act and is not preempted
by Federal Copyright Act because the issue is not the pirated photographs but the likeness
therein. False light claims cannot be dismissed based on lack of claim as these are facts for a
jury to decide, not matters of law for summary judgment.

See cited case law and statutes in Rules section

Concurrence or Dissent -N/A

Definitions

Law ex novo- new fresh point of view related to appeals cases

Lantham Act- Federal Law regarding trademarks and likeness
Inapposite-irrelevant
Abrogation-repeal or abolition of a law, right or agreement
Pleading- written submission that sets out claims such as briefs, motions, attachments and
responses.