Submitted January 14, 2015.
Appeal from United States District Court for the Western District of Missouri - Kansas City.
For Steve Ray, Plaintiff - Appellant: Jonathan D. McDowell, Brown & James, Springfield, MO; Saundra J. McDowell, Mcdowell & Mcdowell, Kansas City, MO.
For ESPN, Inc., ESPN CLASSIC, Inc., ESPN CLASSIC EUROPE, Inc., Defendants - Appellees: Joseph Ernest Martineau, Sarah A. Milunski, Lewis & Rice, Saint Louis, MO; Scott Andrew Wissel, Lewis & Rice, Kansas City, MO.
Before SMITH, BENTON, and SHEPHERD, Circuit Judges.
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 court held that the Copyright Act preempts Ray's claims and therefore dismissed Ray's suit for failure to state a claim. We affirm.
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) (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 ...