Preemption: Copyright Act Does Not Preempt Illinois Right To Publicity

Ultra Sheen SupremeToney v. L’Oreal USA (7th Cir. 2005) (CV 03–2184).

June Toney consented to allow her photograph to be used, to advertise a hair-relaxer (“Ultra Sheen Supreme”) by Carson Products.  L’Oreal later acquired the Ultra Sheen line and began to use the photo without her permission and beyond the time-period specified in the original contract, Toney sued — alleging a violation of her right of publicity under Illinois law. The district court dismissed the case as preempted under 17 USC 301.

On appeal, the Seventh Circuit panel vacated, finding that the Illinois Statute protecting the right of publicity is not preempted by the copyright act because the rights to publicity protect the identity of a person rather than a particular tangible picture or photograph.

Therefore, the bottom line is that Toney’s claim under the Illinois right of publicity statute is not preempted by federal copyright law.

Vacated and Remanded.

File Attachment: Toney v. Loreal.pdf (26 KB)