KNB Enterprises v. Matthews: Right of Publicity

Q: Does KNB mean every claim involving a copyrighted image escapes preemption?

No. KNB protects claims aimed at unauthorized commercial use of identity. If a publicity claim is really an effort to control reproduction or distribution of the copyrighted work itself, it can look equivalent to the copyright owner's rights and face preemption. The decisive question is what the plaintiff is actually trying to control.

A California appellate court held that models' statutory right-of-publicity claims under Civil Code § 3344 are not preempted by federal copyright, because a human likeness is not copyrightable even when captured in a copyrighted image.

A photography company shoots erotic images, owns the copyright, and posts samples to Usenet newsgroups to promote its own subscription site. Someone else copies those images and displays them on a commercial website without permission. Can the models sue under California’s right-of-publicity statute, or does federal copyright law swallow the claim because the dispute is “really” about copying a photograph? In KNB Enterprises v. Matthews, 78 Cal. App. 4th 362, No. B127931 (Cal. Ct. App. 2d Dist., Div. 1, Feb. 17, 2000), the California Court of Appeal gave a foundational answer: the models can sue. Writing through a panel of Acting Presiding Justice Ortega with Justices Miriam Vogel and Masterson, the court held that California Civil Code § 3344 claims are not preempted by the federal Copyright Act, because the thing the statute protects (a human likeness) is not itself copyrightable, even when it appears inside a copyrighted photograph.

At a glance

Case: KNB Enterprises v. Matthews, 78 Cal. App. 4th 362, No. B127931 (Cal. Ct. App., 2d Dist., Div. 1, Feb. 17, 2000).
Parties: KNB Enterprises, a photography company asserting assigned right-of-publicity claims on behalf of professional models, against Greg W. Matthews, operator of an adult website (“Justpics”).
Conduct: On facts stipulated for the parties’ cross-motions for summary judgment, Matthews used a software program to copy 417 of KNB’s copyrighted erotic photographs (depicting 452 models, none of them celebrities) from Usenet and displayed them, for profit, on his subscription website without consent.
Procedural posture: The trial court granted summary judgment for Matthews, reasoning the § 3344 claims were preempted by federal copyright law. KNB appealed.
Holding: Reversed. Because a human likeness is not copyrightable subject matter, the models’ § 3344 claims are not equivalent to a copyright infringement claim and are not preempted; the right of publicity falls outside the subject matter of copyright.

The preemption test and why the models passed it

Section 301 of the Copyright Act preempts state-law rights only when two conditions are both met. First, the subject-matter prong: the work at issue must be fixed in a tangible medium and fall “within the subject matter of copyright” under 17 U.S.C. §§ 102 and 103. Second, the equivalency prong: the state-law right asserted must be “equivalent to” one of the exclusive rights in 17 U.S.C. § 106 (reproduction, distribution, public display, and the like). Fail either prong and the state claim survives.

The trial court had treated the case as a copyright dispute in disguise. After all, KNB owned the photographs’ copyrights and conceded that any infringement claim belonged in federal court. But the Court of Appeal refused to collapse the photograph and the person into one. The subject of a § 3344 claim is not the photograph as a creative work; it is the plaintiff’s name, voice, signature, photograph, or likeness as an attribute of personhood. And a human likeness, the court reasoned, is not copyrightable. Copyright protects the photographer’s original expression (lighting, angle, composition, the fixed image), not the appearance of the human being captured. Because the models’ identities sit outside the subject matter of copyright, the first preemption prong is not satisfied.

The court did not stop there. Returning to the two-part test, it concluded that “neither condition has been met in this case”: first, the subjects of the claims are the models’ likenesses, which are not copyrightable even though “embodied in a copyrightable work such as a photograph”; second, the right asserted under the state statute, the right of publicity, does not fall within the subject matter of copyright. Both steps of that conclusion lean on the same Nimmer passage and on the same underlying point, which is that a persona is not a work of authorship. The court’s operative holding fuses the two: because a human likeness is not copyrightable, even if captured in a copyrighted photograph, the models’ § 3344 claims “are not the equivalent of a copyright infringement claim and are not preempted by federal copyright law.” The likeness is simply not the kind of thing copyright governs.

Distinguishing the photograph from the person

The conceptual heart of KNB is its insistence that two distinct legal interests can attach to a single image. The photographer holds a copyright in the photograph as an authored work. The model holds a right of publicity in her own identity. These travel separately. KNB could own the copyrights outright and still assert the models’ personality rights against an unauthorized commercial user. Indeed, KNB held those publicity claims by assignment from the models.

The court grounded § 3344 in its 1971 enactment as a commercial-appropriation statute complementing the common law tort of appropriation. The statute imposes liability on anyone who knowingly uses another’s “name, voice, signature, photograph, or likeness” on or in products, or for advertising or selling, without consent. Matthews’s stipulated conduct (displaying the models’ images on a for-profit subscription website) fit that description. The defense that he had merely copied copyrighted files missed the statutory target: § 3344 does not punish copying expression; it punishes the unauthorized commercial exploitation of identity.

This distinction has outsized doctrinal importance. It explains why the right of publicity is not a backdoor copyright claim and why a defendant cannot defeat a publicity suit simply by pointing out that the plaintiff’s image happens to live inside a copyrighted work. Federal courts have since taken up the question in more refined terms, and KNB recurs in that line, though not always as an endorsement. In Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017), the Ninth Circuit cited KNB while holding that publicity claims were preempted where the defendant held a license from the copyright owner and the plaintiffs were in substance objecting to distribution of the photographs themselves. The panel read KNB narrowly, as a case about use of a likeness on unrelated merchandise or in advertising, and framed preemption around how a likeness is used rather than around a categorical rule that likenesses are never within copyright’s subject matter.

The limits the decision implies

KNB is broad in result but not unlimited in logic, and the boundary matters. The court drew one limit itself. Reading Fleet v. CBS, Inc., 50 Cal. App. 4th 1911 (1996), narrowly, it said a § 3344 claim is preempted under Fleet where a model or actor with no copyright interest in the work seeks to prevent the exclusive copyright holder from displaying the copyrighted work, but not where, as here, the defendant has no legal right to publish the work at all. The status of the defendant, licensed owner versus stranger, did real work in the opinion. Beyond that, the case involved a defendant who took the photographs and used the depicted persons’ likenesses for his own commercial display. That is core appropriation. The harder cases arise when the plaintiff’s publicity claim is, in substance, an attempt to control the distribution of the copyrighted work as such: to dictate who may reproduce or display the photograph as an artistic object. In that posture, the publicity claim begins to look equivalent to the copyright owner’s § 106 rights, and preemption pressure returns.

KNB itself did not have to police that boundary, because the models were not trying to control the photographs as creative works; they were objecting to the commercial use of their identities. But the opinion’s subject-matter reasoning (likeness is not copyrightable) coexists with the later-developed principle that how a copyrighted image is used can determine preemption. The two ideas are reconciled by focusing on what the plaintiff actually seeks to control: her persona, or the artwork.

Open questions

The decision leaves several issues for later courts. Where is the line between a publicity claim that protects identity (not preempted) and one that effectively seeks to govern reproduction or display of a copyrighted image (potentially preempted)? How does KNB interact with the federal courts’ more granular merchandise-and-advertising-versus-artistic-work framework, given that both regimes claim the same statute as support? And in an age of AI-generated and composited imagery, when a “likeness” is synthesized rather than photographed, does the subject-matter logic (that a real human’s appearance is not copyrightable) translate cleanly to outputs that have no single human subject?

Implications

Section 3344 is not a disguised copyright claim. A defendant cannot defeat a California publicity suit merely by showing the plaintiff’s image sits inside a copyrighted photograph; the likeness is separate, protectable subject matter.
Ownership of the photo and the personality right can split. A copyright holder can still face (or, as here, assert by assignment) right-of-publicity claims; image ownership is not identity consent.
The subject-matter prong is the model plaintiff’s friend. Because a human likeness is not copyrightable, § 3344 claims can defeat preemption at the first step, and in KNB the same reasoning carried the court through the second step as well.
Use, not medium, frames the harder cases. Where a publicity claim targets unauthorized commercial exploitation of identity it survives; where it really seeks to control distribution of the artwork, preemption risk grows.
Foundational citation. KNB anchors the California position that the right of publicity protects persona, not pixels, and recurs in federal preemption analysis.

Frequently asked questions

Why weren’t the models’ claims preempted by copyright? Because the federal Copyright Act preempts only state claims whose subject matter falls within copyright. A human likeness is not copyrightable: copyright protects the photographer’s original expression, not the appearance of the person depicted. Since § 3344 protects the person’s identity, its subject matter sits outside copyright, defeating preemption at the first step.

Can the owner of a photograph still be sued under the right of publicity? Yes, when the issue is the depicted person’s identity rather than the photograph as a creative work. Copyright ownership is not the same as the subject’s consent to commercial use of her likeness. In KNB, the publicity claims were even held by assignment from the models, separate from the photo copyrights.

Does KNB mean every claim involving a copyrighted image escapes preemption? No. KNB protects claims aimed at unauthorized commercial use of identity. If a publicity claim is really an effort to control reproduction or distribution of the copyrighted work itself, it can look equivalent to the copyright owner’s rights and face preemption. The decisive question is what the plaintiff is actually trying to control.