Copyright Act Does not Preempt State Law of Publicity

The U.S. Court of Appeals for the Seventh Circuit vacated and remanded the decision of the District Court for the Northern District of Illinois holding that the Copyright Act preempted the Illinois Right of Publicity Act (IRPA). Toney v. L’Oreal USA, Inc., Case No. 03-2184 (Seventh Cir. Apr. 8, 2005) (Kanne, J.).

June Toney is a print model whose likeness appeared on Johnson Products Company’s Ultra Sheen Supreme hair product packaging from November 1995 to November 2000 and in magazine advertisements for these products from November 1995 to November 1996. Toney authorized Johnson Products to use her likeness on this packaging and in these advertisements, but the authorization agreement stated that any additional uses of her likeness would be negotiated separately. Johnson Products sold the Ultra Sheen Supreme line of products to Carson Products, who later sold the line to L’Oreal USA. L’Oreal USA then sold the product line to Wella Products. After these acquisitions, Toney brought