By Bruce Isaacs
A federal judge called foul on a right of publicity lawsuit filed against CBS by a former college football player who sought to form a class action seeking approximately $800 million in damages, granting CBS’s motion for summary judgment and denying the players class certification. The lead plaintiff, University of Texas–El Paso player Yahchaaroah Lightbourne, had claimed that his and other former and current college athletes’ right of publicity was violated when numerous photographs taken of them at college sporting events were posted on the universities’ own websites.
On July 30, 2015, in the case of Lightbourne v. CBS Interactive, et al., No. 8:13-cv-00876-JLS (C.D. Cal.), Lightbourne’s motion for class certification was successfully defeated. On August 14, 2015, the court disposed of all of the remaining claims when it granted CBS’s motion for summary judgment.
The Denial of Lightbourne’s Motion for Class Certification
In denying Lightbourne’s motion for class certification, the court reasoned that individual issues predominated over common issues and, therefore, the requirements for class certification could not be satisfied. The court set forth various individual issues, which predominated over common issues, including the issues of express consent, implied consent, the substantive law of each state as it relates to a right of publicity claim, statutory damages, and other individual issues.
The court concluded that it would have to conduct mini-trials on each of these individualized issues on a photograph-by-photograph basis, which would make a class action impractical, unmanageable, and not a superior way to adjudicate the controversy.
The court recognized that Lightbourne was a resident of the state of Wyoming and that he played football for a university located in Texas (and had not played any football games in California). The court further emphasized that potential class members would reside in and would attend universities in many different states and that each of these states had a stronger interest in enforcing their own particular right of publicity laws than did the state of California (Lightbourne sought to apply California law), especially since the substantive law of the various states differed greatly.
The court also concluded that because California law provides for a mandatory award of attorneys’ fees (assuming, for sake of discussion, that California law did apply), then there is no reason why a class action would be more efficient than individual actions. Also, since Lightbourne himself signed an express consent form, it could not be persuasively argued that he was a typical or adequate representative for the plaintiff class.
The Grant of CBS’s Motion for Summary Judgment
In granting CBS’s motion for summary judgment, the court reasoned that Lightbourne had given his express consent when he signed a document titled “Student-Athlete Image Authorization,” which permitted Lightbourne’s university (the University of Texas–El Paso) and its agents to use, sell, and distribute his image.
Lightbourne argued that the NCAA rules negated his express written consent, but the court rejected this argument and specifically concluded that NCAA Rule 18.104.22.168 did not vitiate Lightbourne’s express consent. In addition, the court ruled that Lightbourne’s purported understanding of the consent form and his unspoken subjective intent in connection therewith
Accordingly, because his consent was undisputed, Lightbourne could not establish the prima facie elements of a right of publicity claim under California law and thus the court determined that CBS’s motion for summary judgment was well taken and should be granted. The court likewise ruled that CBS is the prevailing party and is entitled to recover its attorneys’ fees under California Civil Code Section 3344 in an amount to be determined by subsequent motion.
CBS was represented by Weil, Gotshal & Mangesin New York and Bruce Isaacs of Davis Wright Tremaine in Los Angeles.