Dennis Crouch reports on a Seventh Circuit opinion ruling that the Copyright Act does not preempt a claim under Illinois’ right of publicity. It arose in connection with a lawsuit by a model whose likeness was used by Ultra Sheen, and subsequently by L’Oreal, which acquired the former, beyond the contractual term. Here’s the heart of the opinion — I have bolded the words that define what is required for a claim to exist under copyright law:
[W]e find that [plaintiff’s] identity is not fixed in a tangible medium of expression. There is no “work of authorship” at issue in [her] right of publicity claim. A person’s likeness — her persona — is not authored and it is not fixed. The fact that an image might be fixed in a copyrightable photograph does not change this. . . . Identity, as we have described it, is an amorphous concept that is not protected by copyright law; thus, the state law protecting it is not preempted.