In Downing v. Abercrombie & Fitch (9th Cir. 2001) 265 F.3d 994, the plaintiffs, well known surfing enthusiasts, brought suit for California common law and statutory misappropriation of name and likeness claims against a clothing manufacturer when their faces and names were placed on t-shirts. The Ninth Circuit panel concluded that a Civil Code section 3344 claim is not preempted because claims for the use of name and likeness are not subject to copyright law. (Downing v. Abercrombie & Fitch, supra, 265 F.3d at p. 1005, fn. 4.) In Downing v. Abercrombie & Fitch (9th Cir. 2001) 265 F.3d 994, at pages 1102-1103, the Court held that defendant's publication of a photograph of plaintiffs in an advertising circular devoted to surfing was actionable. While it is true that the defendants in each case were in different businesses and that only the media business's publication prevailed, these facts were not determinative.