                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2117
                         ___________________________

                                       Steve Ray

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

       ESPN, Inc.; ESPN CLASSIC, Inc.; ESPN CLASSIC EUROPE, Inc.

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Kansas City
                                  ____________

                            Submitted: January 14, 2015
                               Filed: April 22, 2015
                                   [Published]
                                  ____________

Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
                           ____________

PER CURIAM.

      Steve "Wild Thing" Ray brought suit against ESPN, Inc.; ESPN Classic, Inc.;
and ESPN Classic Europe, Inc. (collectively, "ESPN"), asserting state-law tort claims
related to ESPN's re-telecast of his wrestling performances. The district court1 held
that the Copyright Act preempts Ray's claims and therefore dismissed Ray's suit for
failure to state a claim. We affirm.

                                    I. Background
       Ray wrestled professionally in the Universal Wrestling Federation (UWF) from
1990 to 1994. He alleges that he wrestled in the UWF for pecuniary gain and that
"[e]ach [of his] match[es] was filmed for future use to generate revenue." Ray
specifically agreed with a representative of the UWF that the films would be "sold and
used." Since his retirement from the UWF in 1994, Ray has, among other things,
promoted healthcare products and weightlifting supplements.

       According to Ray, ESPN has obtained certain films of his wrestling matches
and re-telecast them throughout North America and Europe without first obtaining his
"consent to use [his] identity, likeness, name, nick name, or personality to depict him
in any way." Ray does not allege, however, that ESPN obtained the films unlawfully.
Because of ESPN's alleged actions, Ray filed suit against ESPN in the Circuit Court
of Jackson County, Missouri, asserting four claims under Missouri state law: (1)
invasion of privacy, (2) misappropriation of name, (3) infringement of the right of
publicity, and (4) interference with prospective economic advantage.

      ESPN removed the case to federal court. ESPN then moved to dismiss the entire
case under Federal Rule of Civil Procedure 12(b)(6) on the grounds that the Copyright
Act, 17 U.S.C. § 101 et seq., preempts Ray's claims. In analyzing ESPN's motion to
dismiss, the district court correctly noted at the outset of its opinion that Ray's first
two claims—invasion of privacy and misappropriation of name—allege the same tort
under Missouri law. See Nemani v. St. Louis Univ., 33 S.W.3d 184, 185 (Mo. 2000)


      1
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.

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(en banc) (citation omitted). The court also noted that Ray did not challenge ESPN's
contention that the Copyright Act preempts Ray's claims for invasion of privacy and
interference with prospective advantage; therefore, the court assumed these claims
were waived. See Crossett Paper Mills Emps. Fed. Credit Union v. Cumis Ins. Soc'y,
Inc., 476 F.3d 578, 580 n.2 (8th Cir. 2007).

      The court ultimately held that the Copyright Act preempts Ray's claims. In so
holding, the court noted that:

      [Ray's] wrestling performances were part of the copyrighted material,
      and his likenesses could not be detached from the copyrighted
      performances that were contained in the films. . . . [Ray] has not alleged
      that his name and likeness were used to promote or endorse any type of
      commercial product. Rather, [Ray] complains about ESPN airing
      wrestling performances that have been captured on video. Thus, [Ray's]
      complaints are based solely on ESPN airing video recordings depicting
      him in a "work of authorship," which is plainly encompassed by
      copyright law.

                                     II. Discussion
       On appeal, Ray argues that the district court erred in dismissing his claims as
preempted under the Copyright Act. We review de novo the district court's dismissal
for failure to state a claim. Rochling v. Dep't of Veterans Affairs, 725 F.3d 927, 930
(8th Cir. 2013) (citation omitted). In so doing, we assume "all facts in the complaint
to be true and construe[] all reasonable inferences from those facts most favorably to
the complainant." Id. (quotation and citations omitted).

      The Copyright Act will preempt Ray's state-law claims if the following two
conditions are satisfied:

      (1) the work at issue is within the subject matter of copyright as defined
      in § 102 and 103 of the Copyright Act, and (2) the state law created right

                                         -3-
      is equivalent to any of the exclusive rights within the general scope of
      copyright as specified in § 106 [of the Copyright Act].

Nat'l Car Rental Sys., Inc. v. Computer Assocs. Int'l, Inc., 991 F.2d 426, 428 (8th Cir.
1993) (citation and footnote omitted); see also 17 U.S.C. § 301(a). We analyze each
of these two conditions in turn.

                            A. Subject Matter of Copyright
         The Copyright Act defines the subject matter of copyright generally as "original
works of authorship fixed in any tangible medium of expression . . . from which they
can be perceived, reproduced, or otherwise communicated, either directly or with the
aid of a machine or device." 17 U.S.C. § 102(a). "Works of authorship" include
"motion pictures and other audiovisual works." Id. at § 102(a)(6). "A work is 'fixed'
in a tangible medium of expression when its embodiment in a copy or phonorecord
. . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or
otherwise communicated for a period of more than transitory duration." Id. at § 101.

         The filming of Ray's wrestling performances clearly generated an "original
work[] of authorship," id. at § 102(a), that was "'fixed' in a tangible medium of
expression" and could be "perceived, reproduced, or otherwise communicated," id. at
§ 101. The films, therefore, are within the subject matter of copyright law. Id.; see
also Nat'l Basketball Ass'n v. Motorola, Inc., 105 F.3d 841, 848 (2d. Cir. 1997) ("We
hold that where the challenged . . . misappropriation relates in part to the copyrighted
broadcasts of [basketball] games, the subject matter requirement is met as to both the
broadcasts and the [basketball] games."); Balt. Orioles, Inc. v. Major League Baseball
Players Ass'n, 805 F.2d 663, 674 (7th Cir. 1986) ("[T]elecasts [of baseball games] are
. . . within the subject matter of copyright."); Somerson v. McMahon, 956 F. Supp. 2d
1345, 1353–54 (N.D. Ga. 2012) (holding that "the video recordings of plaintiff's
wrestling activities fall within the subject matter of copyright" and that "the broadcast
or recording of the wrestling match is the subject of copyright protection"); Blood v.


                                          -4-
Titan Sports, Inc., No. 3:94-CV-307-P, 1997 U.S. Dist. LEXIS 24485, at *33–*34
(W.D.N.C. May 13, 1997) (holding that the Copyright Act preempted wrestler's state-
law claims for damages arising from the reproduction and distribution of films of his
wrestling performances).

       Ray nevertheless argues that his claims are not within the subject matter or
ambit of the Copyright Act because ESPN's alleged use of his "likeness" is the true
"focal point of this case." In support of his argument, he cites factually distinguishable
or inapposite authority, including Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th
Cir. 2001), and Brown v. Ames, 201 F.3d 654 (5th Cir. 2000), in which courts found
that the Copyright Act did not preempt certain state-law misappropriation or
right-of-publicity claims. In Downing, the defendant-retailer published a photograph
of the surfer-plaintiffs without their permission in the defendant's catalog to promote
the defendant's products as part of its surf-themed advertising campaign. 265 F.3d at
1000. The defendant also created and sold t-shirts exactly like those the plaintiffs wore
in the photograph. Id. As the court noted, "it [was] not the publication of the
photograph itself . . . that [was] the basis for [the plaintiffs'] claims, but rather, it [was]
the use of the [the plaintiffs'] likenesses and their names pictured in the published
photograph." Id. at 1003. Indeed, as the court later added, the defendant "went well
beyond mere republication of the photograph" and, among other things, "suggested
that the surfers had endorsed" the defendant's products. Laws v. Sony Music Entm't,
Inc., 448 F.3d 1134, 1141 (9th Cir. 2006) (referring to Downing). Similarly, the
defendants in Brown used the musician-plaintiffs' names and likenesses to sell
"cassettes and CD's," "music catalogs," "posters," and "videotapes," 201 F.3d at
656–57, even though the defendants "lacked copyrights" and had received no
authorization from the plaintiffs. Id. at 656. Notably, the court in Brown specifically
distinguished Baltimore Orioles—and in so doing, distinguished this case as well—on
the grounds that "the right of publicity claimed" by the plaintiffs in Baltimore Orioles
"was essentially a right to prevent rebroadcast of games whose broadcast rights were
already owned by" other parties. Id. at 659.

                                             -5-
       Neither Downing nor Brown involved an attempt to merely "prevent
rebroadcast" of a copyrighted film—unlike this case. ESPN did not use Ray's likeness
or name in an advertisement without his permission to promote its commercial
products, and, as the district court correctly noted, Ray's "likenesses could not be
detached from the copyrighted performances that were contained in the films."
Consequently, Ray's attempts on appeal to recast his claims to evade copyright
preemption are unavailing. See also No Doubt v. Activision Publ'g, Inc., 702 F. Supp.
2d 1139, 1144 (C.D. Cal. 2010) ("A claim asserted to prevent nothing more than the
reproduction, performance, distribution, or display of a dramatic performance
captured on film is subsumed by copyright law and preempted." (quotation and
citation omitted)); Fleet v. CBS, 58 Cal. Rptr. 2d 645, 651 (Cal. Ct. App. 1996) ("[I]t
was not merely appellants' likenesses which were captured on film—it was their
dramatic performances which are . . . copyrightable. An actor who wishes to protect
the use of the image contained in a single, fixed dramatic performance need simply
retain the copyright."); 1 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright § 1.01[B][3][b][iv][II] (2014) (noting that when a performer collaborates
in creating a copyrighted work, the performer is barred from "using the right of
publicity to squelch exploitation of that copyrighted work for its intended purpose").

                            B. Equivalence of State Rights
      The Copyright Act gives copyright owners "exclusive rights to do and to
authorize," among other things, the reproduction of "the copyrighted work in copies
or phonorecords"; the preparation of "derivative works based upon the copyrighted
work"; the distribution of "copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or lending"; and the
display of certain "copyrighted work publicly." 17 U.S.C. § 106.

       As discussed above, the crux of Ray's case is that ESPN re-telecast Ray's filmed
performances. Thus, because Ray's state-law rights have been "'infringed by the mere
act of reproduction, performance, distribution or display'" of his performances, his

                                          -6-
state-law rights are equivalent to the exclusive rights "'within the general scope of
copyright.'" Nat'l Car Rental Sys., at 431 (quoting 1 Nimmer on Copyright §
1.01[B][1]); see also Laws, 448 F.3d at 1143 (holding that the Copyright Act
preempted a plaintiff's right-of-publicity claim based on the reproduction of a voice
recording); Balt. Orioles, 805 F.2d at 677 ("[A] right in a work that is conferred by
state law is equivalent to the right to perform a telecast of that work if the state-law
right is infringed merely by broadcasting the work.").2

                                  III. Conclusion
      After having thoroughly reviewed all of Ray's arguments on appeal, we affirm
the district court's dismissal of Ray's state-law claims as preempted under the
Copyright Act.
                        ______________________________




      2
        In light of this analysis, we reject Ray's contention that his claim for
interference with prospective economic advantage is uniquely beyond the preemptive
scope of the Copyright Act or otherwise requires an analysis separate from that of his
other state-law claims. See, e.g., Stromback v. New Line Cinema, 384 F.3d 283, 306
(6th Cir. 2004) ("Generally, tortious interference claims . . . are held to be preempted
because the rights asserted in such claims are not qualitatively different from the rights
protected by copyright."); Harper & Row Publishers, Inc. v. Nation Enters., 723 F.2d
195, 201 (2d Cir. 1983) (holding that the Copyright Act preempted a tortious
interference claim), rev’d on other grounds, 471 U.S. 539 (1985).

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