Home

Ryan S. Hilbert


Publications

World Wrestling Federation Entertainment, Inc. v. Michael Bosman: A Legal Body Slam for Cybersquatters on the Web 

Authors: Ryan S. Hilbert and M. Scott Donahey

Abstract

No abstract available.

    bosman dispute domain policy registered

Volume 16
Issue 2
Page 421

 Download the article.
 

Toney v. L’Oreal USA Inc.: The Answer to the Question “What Do Hair Relaxer Products Have to Do With the Seventh Circuit’s View on Copyright Preemption and the Right of Publicity?” 

Authors: Ryan S. Hilbert and Maki Kanayama

Abstract

     The right of publicity is a state cause of action that forbids using another’s name, likeness, voice, or identity for commercial purposes. Although the publicity right is often grouped with torts that protect one’s right of privacy, the right is a distinct legal cause of action. The font-variant: small-caps;Restatement (Third) of Unfair Competitionfont-variant: normal; expressly safeguards an individual’s identity by treating the publicity right as a separate area of unfair competition law. Among a majority of states, the right of publicity is recognized either by statute or as a common law right. At the federal level, the Copyright Act of 1976, which protects original works of authorship reduced to a tangible medium, intersects with the publicity right by preempting any state law that offers rights equivalent to those provided by the Act. Although both copyright law and the right of publicity strive to protect artists and promote creativity, the two laws are often in conflict. The variations in each state’s requirements to maintain a cause of action under the right of publicity further complicate the issue.
     Generally speaking, a majority of the courts—including the Ninth Circuit—have held that federal copyright law does not preempt the state-based right of publicity. One of the most notable exceptions is the Seventh Circuit’s decision in Baltimore Orioles, Inc. v. Major League Baseball Players Assoc. In a recent decision entitled Toney v. L’Oreal USA Inc., the Seventh Circuit reaffirmed its view that federal copyright law preempts the right of publicity and dismissed plaintiff June Toney’s right of publicity claim. Interestingly, the court decided not to dismiss Toney’s claim under the Lanham Act before discovery, despite the weakness of her evidence. Although Toney had been clearly wronged, if she loses under the Lanham Act, she effectively will be left without a remedy. This outcome lacks a sense of equity and cries for a need to minimize successful preemption challenges.
     This Case Note examines the Seventh Circuit’s holding and rationale in Toney v. L’Oreal USA Inc. Additionally, the Case Note discusses the conflict between state-based rights of publicity and federal copyright law, and suggests that the court’s decision in Toney v. L’Oreal USA Inc. should be reversed.

    claim copyright court oreal player publicity right section state toney

Volume 19
Issue 2
Page 531

 Download the article.