Timed Out, LLC v. Youabian, Inc.

When applying the federal copyright act, the Courts will employ a two-step test to determine preemption.

Opinion (Kitching): Timed Out, LLC deals with professional models and protects their image rights. Kambiz Youabian (Youabian) is accused of using the images or likenesses of some of the models protected by Timed Out on their website. The Models (Plaintiff) claim that they suffered damage through the "dilution of the value" of their images.
Youabian moved for summary judgment on the pleadings arguing that, among other things, the Models' claims were "preempted by the federal Copyright Act." The trial court agreed and granted Youabian's motion. The Models appealed. In reviewing the case, this Court cited 17 U.S.C. § 301 when it discussed the elements of preemption required under the Copyright Act. The first of two conditions is "the subject of the claim must be a work fixed in a tangible medium of expression and come within the subject matter or scope of copyright protection as described in sections 102 and 103 of 17 United States Code." The second condition is "the right asserted under state law must be equivalent to the exclusive rights contained in section 106." In this case, the Court stated that the use of the likenesses to promote Youabian's business is what constitutes misappropriation, not just the publication of the images. However, when applying the two-part test of preemption, the Court concluded that the likenesses are not copyrightable (step one), and the right of publicity asserted under state law is not preempted by federal law since it does not fall within the subject of copyright.

As such, the judgment is REVERSED and the motion is VACATED.