Pre-emption: Copyright Act v. Right of Publicity

The 7th Circuit recently held that the Copyright Act does not pre-empt state law claims that use of a person's photograph violates the person's right of publicity. According to the court in Toney v. L'Oreal USA, Inc., No. 03-2184 (7th Cir. May 6, 2005), the Copyright Act protects works of authorship in a fixed medium, whereas the state right of publicity protects a person's "persona," which is not so fixed. The court believed the two rights were different enough to escape preemption.