Arizona Court of Appeals, Division One, reaffirms common law right of publicity.

Beginning in 2015, a country western themed bar began displaying a series of ads highlighting various special events and promotions. These ads pictured various women, all wearing some sort of costume, bikini, or dress. The bar did not pay any of the women for these pictures—in fact, all of the images of the women were allegedly pirated and had been taken at unrelated professional photoshoots.

The women, who were all actresses, models, or social media influencers, sued the bar for its unauthorized use of the photos. They brought claims for violation of their right of publicity, false light, and violations of the Lanham Act. The bar moved for judgment on the pleadings on the right of publicity and false light claims. As to the former, the bar argued that, pursuant to A.R.S. § 12-761, only soldiers have a cause of action for the right of publicity and, regardless, a common law claim for right of publicity would be preempted by the federal Copyright Act. As to the latter, the bar argued the women failed to state a claim for false light because no reasonable person would find it highly offensive to be associated with cowboys and a country western bar. The superior court agreed with the bar and dismissed the two claims.

The Court of Appeals reversed. The court began by rejecting the bar’s argument that only soldiers have a right of publicity in Arizona. For this argument, the bar relied on § 12-761, which grants soldiers a statutory cause of action for invasion of the right of publicity. This, the bar argued, indicated the legislature intended to withhold the right of publicity from all others. However, common law causes of action are only preempted if the legislature makes that intent explicit. Here, nothing in the statute or its legislative history clearly indicated the legislature intended to extinguish a common law cause of action for the right of publicity. Indeed, the text of the statute itself indicated it was only meant to “supplement” other rights and remedies. Thus, the Court held that § 12-761 did not extinguish the common law right of publicity that Arizona courts have recognized for over 70 years.

The Court also rejected the argument that a common law claim to a right of publicity was preempted by the Copyright Act. Because the women’s claims weren’t based on the use of anything protected by copyright, but instead on a misappropriation of their likenesses, their claims did not fall under the Copyright Act and were thus not preempted.

Finally, the Court held that the women’s false light claim could not be decided at the summary judgment stage. The Court held that false light claims come in two flavors: (1) a defendant publishes something untrue about the plaintiff, or (2) the defendant publishes something true but creates a false implication, the false implication being the injury. The women’s claim fell under the second category because the use of their likenesses falsely implied that they had contracted or associated with the bar, which could hurt their brand and dilute their efforts to vet and selectively choose their modeling engagements. Whether this false implication would be “highly offensive” to a reasonable person such that it satisfied the elements of a false light claim could not be determined as a matter of law, and thus the superior court erred in granting judgment on the pleadings.

Judge Swann authored the opinion for the Court, joined by Judges Campbell and Winthrop.