United States: Three Point Shot - May 2015

"Wild Thing" Forced to Tap Out in Battle against ESPN

Last month, the Eighth Circuit Court of Appeals forced former professional wrestler Steve "Wild Thing" Ray to tap out in his battle against ESPN by dismissing the wrestler's right of publicity suit for failure to state a claim. Mr. Ray originally sued ESPN for rebroadcasting old wrestling matches in which Ray participated without his permission, claiming that such unauthorized rebroadcasting infringed his state-law right of publicity. In a federal court forearm smash, the district court for the Western District of Missouri held that the Copyright Act preempted Ray's right of publicity claim. Subsequently, Ray appealed the ruling – hoping for a surprising "sunset flip" of his dismissal – but the Eighth Circuit affirmed the lower court's submission hold.

Under the laws of most states, the right of publicity, or a similar tort such as misappropriation, prevents the unauthorized commercial use of one's identity, likeness, name or personality. However, according to 17 U.S.C. § 301(a), the Copyright Act will preempt state-law claims when (1) the work at issue comes within the subject matter of copyright and (2) the state law created right is equivalent to a right within the scope of copyright.

As the Eighth Circuit pointed out in its decision, broadcasts of sporting events, like those of Ray's past performances, are "original works of authorship...fixed in a tangible medium of expression" and can be "perceived, reproduced, or otherwise communicated," and are therefore properly the subject matter of copyright. (Ray v. ESPN, Inc., 2015 WL 1810486 (8th Cir. Apr. 22, 2015)).

As to the second preemption prong, copyright owners hold the exclusive right to reproduce and license copyrighted work, including broadcasts. Here, according to the court, Ray's likeness could not be detached from the copyrighted performances. Any infringement of his state-law right therefore derived from the mere rebroadcast of the performance, the exact right that the Copyright Act confers upon the copyright owner. Thus, with a resounding superplex from the second rope, the Eighth Circuit rejected Ray's arguments and ruled the state law created right is equivalent to a right within the scope of copyright. In so ruling, the court distinguished the cases cited by Ray, which generally involved using an individual's likeness in advertisements without permission to promote commercial products, as opposed to the current dispute which involved rebroadcasting a copyrighted film.

The Eighth Circuit's decision comes on the heels of another right of publicity suit targeting ESPN, wherein the father of former professional wrestler Eddie Gilbert is suing WWE and ESPN for rebroadcasting his son's past performances. However, the district court of the Western District of Tennessee, overseeing the Gilbert case, is not bound by the Eighth Circuit's decision.

As these cases unfold it will be interesting to see what effect, if any, signed releases of the athlete's right of publicity have on the courts' decisions and their copyright preemption analyses. The Eighth Circuit noted that Mr. Ray specifically agreed with the Universal Wrestling Foundation that his performances would be recorded and sold. Mr. Gilbert, however, claims that his son never signed with WWE or ESPN and therefore never transferred his right of publicity in his performances.

The validity of any given waiver is one thing. But whether a waiver is even required to broadcast sporting events where the defendant in question holds or has licensed the copyright is the crucial question. These heel vs. face matches, pitting broadcasters against athletes, are cropping up around the country and while the Eighth Circuit needn't confront the question, the Gilbert court might. Whether the courts decide to somehow pin their decisions on the legitimacy or presence of an underlying waiver, or instead lay the preemption smackdown on all such right of publicity claims, remains to be seen.

Cable Networks Throw Copyright Infringement Haymaker at Online Streaming Sites

The May 2nd bout between Floyd "Money" Mayweather and Manny "Pac-Man" Pacquiao (the "Fight") was billed as the most anticipated boxing match in recent history. The run-up to the Fight involved years of intense back-and-forth between the two camps (the numerous negotiation attempts were its own version of a 12-round slugfest) before the two fighters finally agreed to terms. From a fan's perspective, the May 2nd fight promised to settle the debate over this era's best pound-for-pound boxer – but the match drew global interest for much more than that.

Economically, the Fight shattered the previous record for the largest purse in boxing history (the $152 million purse earned by Mayweather's 2013 bout with Canelo Alvarez),and netted more than $400 million in pay-per-view buys alone and about $500 million in total revenue. Pay-per-view ("PPV") buys represent a considerable chunk of total value, and the Fight commanded around $89.95 per PPV buy (and much more for commercial subscribers), with a reported 4.4 million PPV buys. These figures would cause any boxing promoter to leap onto the ring ropes and pound their chest in triumph. Not surprisingly, the Fight also drew anonymous online sites seeking a piece of the action by promising to show free live streams of the bout.

In a complaint filed on April 28, 2015 in the United States District Court in the Central District of California, Showtime Networks Inc. ("Showtime") and Home Box Office Inc. ("HBO"), along with Mayweather and Pacquiao's promotion companies, Mayweather Promotions, LLC and Top Rank, Inc. (together, the "Plaintiffs"), claimed a host of online streaming websites (pretenders, not legitimate contenders) planned to broadcast unauthorized live Internet streams of the Fight's coverage in violation of federal copyright laws (Showtime Networks, Inc. v. Doe 1, No. 15-03147 (C.D. Cal. filed Apr. 30, 2015)).

According to the complaint, the Fight was to be a jointly produced event with exclusive rights held by HBO and Showtime; the agreement between HBO and Showtime specifically prohibited online streams to United States audiences. At the time the complaint was filed, several online distributors allegedly promised a "free online stream" of the Fight to interested parties, often with embedded graphics of the fighters and countdown timers to the event.

The Plaintiffs argued that unauthorized streams of the Fight would cause irreparable harm by unlawfully infringing on the exclusive rights of reproduction and public performance under the Copyright Act. Additionally, any unauthorized broadcast would throw Plaintiffs against the ropes by threatening to irreparably harm Plaintiffs' relationships with consumers, PPV providers, and authorized carriers, who relied on consumer purchases of the Fight.

The right of first transmission and publication of a popular live sporting event is highly valuable, giving Plaintiffs extra incentive to attempt to seek expedited relief. A week before the Fight, Plaintiffs sent an advance notice of potential infringement to the identified streaming websites (i) demanding the removal of all references to streaming the Fight, and (ii) requiring written assurance that the Fight would not be streamed. Plaintiffs' demand provided a 48-hour window to comply, to which they received no responses. Consequently, Plaintiffs sought a temporary restraining order and other injunctive relief to prohibit distribution of the Fight.

On April 30, 2015, the court granted a temporary restraining order, spurring two of the Defendant websites to remove online offers of free streaming from their home pages. The judge was convinced that Plaintiffs had established that they would suffer irreparable harm in the absence of immediate relief – delivering a knockout blow to the several streaming sites listed in the complaint. The judge was particularly concerned with the effect such streams would have on the Plaintiffs' relationships with third-party providers and consumers, as well as the resulting economic harm.

Boxing promoters and television providers scored a decisive victory, as Internet pirates could not survive the referee's 10-count in this district court title bout.

Balk! Ninth Circuit Deems Decade-old Barry Bonds Conviction Foul

Recently, the Ninth Circuit, sitting en banc, vacated the obstruction of justice conviction of former San Francisco Giant All-Star outfielder Barry Bonds. The conviction rested on a rambling, evasive answer given before a grand jury proceeding during which Bonds had been questioned for hours about his suspected use of steroids. However, after 12 years, the former slugger presumably is relieved to finally have this matter behind him – much like finding out that the manager has graciously given you the afternoon off against the reigning Cy Young Award winner or a wily knuckleballer.

This saga has been drawn out like a long, extra-inning battle, but can be summarized to fit in a SportsCenter highlight. Over a decade ago, Bonds was charged with perjury – a felony – for providing evasive answers to a federal grand jury. The testimony in question was in connection with the infamous Bay Area Laboratory Co-operative (BALCO) steroids controversy, one of the major events that triggered a crackdown and end of what is commonly known as baseball's "Steroids Era." As part of the judicial process, Bonds appeared in front of a grand jury in December 2003. There, he admitted to using a clear substance and cream that he received from his trainer at the time – reasoning that the trainer told him they were legal substances – but denied ever using steroids. Apparently, though, his responses just missed the outside corner when it came to pleasing the jury, which eventually came out of the bullpen to deliver a conviction for obstruction of justice, not perjury. The guilty verdict earned Bonds 30 days of house arrest, two years of probation and 250 hours of community service, but the sentence was stayed while Bonds appealed his conviction. Due to a three-judge Ninth Circuit panel initially upholding the conviction, however, Bonds eventually was required to serve this sentence prior to the most recent development.

Having already served the sentence, Bonds broke out of his years-long legal slump by finally having his conviction overturned by a 10-1 en banc vote. When reviewing the obstruction of justice conviction, the court determined that insufficient evidence existed to convict Bonds. Because a reversal for insufficient evidence implicates Bonds's rights under the Double Jeopardy Clause, he may not be tried again. Although the decision was near-unanimous, there were three concurring opinions, each with different rationales. The first noted that Bonds's statement was nonresponsive and that in no respect could it constitute a criminal act. The second opinion reasoned that a statement such as Bonds's merely triggers the prosecutor's duty to pin the witness down and elicit a clear response. The final concurrence indicated that the examination must be considered as a whole, and when doing so, it cannot be said that Bonds obstructed the process. (United States v. Bonds, No. 11-10669 (9th Cir. Apr. 22, 2015)).

No matter how the court got to home plate, the end result is that, like many of Bonds's home runs in San Francisco, this case is now going, going, gone, deep into McCovey Cove!

Three Point Shot - May 2015

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.