Facts

Patrick Maloney and Tim Judge filed a class action against T3Media Inc. dba Paya.com, involving the alleged use of their image and likeness.

PLAINTIFFS' CONTENTIONS:
Plaintiffs were members of the Catholic University basketball team from 1997 until 2001, and won the 2001 Men's Division III National Collegiate Athletic Association championship game. Plaintiffs contended that defendant provided cloud-based storage, hosting and licensing services for digital content uploaded by third-parties.

Plaintiffs alleged that the NCAA and defendant entered into an agreement for the hosting, storage, and licensing of the NCAA Photo Library, including photographs of plaintiffs from the 2001 championship game. Defendant then made those images available to the public without plaintiffs' consent. Plaintiffs alleged that such use of their image constituted misappropriation of their rights of publicity.

Plaintiffs sued defendants, alleging causes of action for deprivation of rights of publicity in violation of California Civil Code Section 3344, violation of rights of publicity under California common law, and violation of the Unfair Competition Act under the California Business and Professions Code.

DEFENDANT'S CONTENTIONS:
Defendant filed an anti-SLAPP motion to strike plaintiffs' claims. Defendant contended that plaintiffs' claims fell within the scope of the anti-SLAPP statute because they arose from the display and/or licensing of copyrighted NCAA photographs and that plaintiffs had no chance of prevailing given that their claims were preempted by the Federal Copyright law or were otherwise barred under the First Amendment and California law, which exempted from liability "the use of a...likeness in connection with any news, public affairs, or sports broadcast or account."

Result

The court granted T3Media's anti-SLAPP motion and dismissed the action without leave to amend because plaintiffs had had prior opportunities to amend their complaint and to conduct at least minimal discovery, but otherwise failed to save their claim from preemption. Accordingly, the court dismissed the action with prejudice.