What is the focus of a right of publicity claim based on the use of a copyrighted work?

As explained above, the first prong looks at the work against which the plaintiff seeks to exercise a state-created right and requires that such work come within the "subject matter of copyright." In analyzing this issue, courts have occasionally encountered difficulty identifying the focus of the particular state law claim. When a right of publicity claim is based entirely on the defendant's use of a work that falls within the subject matter of copyright (e. g., a photograph or a sound recording) that depicts or otherwise embodies the plaintiff's likeness (e.g. , her visual appearance or voice), it can be unclear whether the focus of the plaintiff's claim is the likeness of the plaintiff or the copyrighted work embodying that likeness. See, e.g. , Maloney v. T3Media, Inc. , 853 F.3d 1004, 1011 (9th Cir. 2017) (considering preemption of a right of publicity claim based on the use of photographs of plaintiffs, and querying whether the focus of the claim is the photographs themselves or the " likeness or persona " exhibited in the photographs).