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03-2184 Toney v. L’Oreal U.S.A., Inc.

By: dmc-admin//September 27, 2004//

03-2184 Toney v. L’Oreal U.S.A., Inc.

By: dmc-admin//September 27, 2004//

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“Toney’s right of publicity in her likeness in photographic form protected under the IRPA is qualitatively indistinguishable from the rights enumerated in § 106 of the Copyright Act. Toney’s right to publicity prohibits the unauthorized reproduction, adaptation, publication, or display of her photos. But, Toney does not hold the copyright in those photos-the photographer (and by agency law his employer-here, the Carson Products Company) is the copyright holder. See Baltimore Orioles, 805 F.2d at 667-73 (applying ‘works made for hire’ doctrine of 17 U.S.C. § 201(b) to conclude that defendant baseball teams own the copyright in telecasts of major league baseball games). And because the exercise of the Carson Products Company’s rights to reproduce, adapt, publish, or display the photos would also infringe upon Toney’s right to publicity in her likeness in photographic form, her publicity right is equivalent to the rights encompassed by copyright listed in § 106. See id. at 679. Regardless of who holds the copyright in her photos, the bottom line is that no meaningful distinction can be made between the publicity rights Toney seeks to protect under the IRPA and the rights protected by copyright law.

“In closing, we emphasize that Toney has attempted to obtain in this litigation that which could have been sought through a breach of contract action. In light of our Baltimore Orioles decision-which Toney does not challenge-we are left only to speculate as to why such an action was not brought against the Defendants, which would have most likely avoided these copyright preemption issues.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Guzman, J., Kanne, J.

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