Copyright and the Right of Publicity

The Seventh Circuit says that June Toney’s Illinois right-of-publicity claim against L’Oreal is not preempted by the Copyright Act. That said, June Toney’s right-of-publicity claim against L’Oreal should be a big, fat loser.

The statute protects a person’s “identity.” The statute defines “identity” as “any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.” (As the court notes, a fixed representation of a person — a copyrighted photo — is not co-extensive with that person’s identity.) I will claim to be an ordinary, reasonable viewer. I’ve seen photos on boxes of L’Oreal. And I have no idea whether those photos represent June Toney, or not. In fact, I suspect that 999 out of 1,000 “ordinary, reasonable” viewers couldn’t pick June Toney out of a lineup. Motion for partial summary judgment for the defendant, granted, leaving what June Toney must hope her attorney pleaded — a breach of contract claim.