Right of Publicity Emerges From The Shadow of Copyright Law

The right of publicity protects an individual's ability to control the commercial use of his or her identity, such as one's name, likeness, or voice. It has been recognized by state statute or common law in approximately twenty-eight states but has not received federal statutory recognition. It has become an increasingly important issue for anyone that advertises or operates web sites which post identifying information about individuals. For several years, there has been some confusion over the interplay between right of publicity and federal copyright law especially involving photographed, televised or videotaped images or performances and recorded voices. Because right of publicity is a state law cause of action, copyright law's preemption doctrine under Section 301 has come into play. The Seventh Circuit Court of Appeals in Toney v. L'Oreal USA, Inc. has clarified its own view on this issue which has reaffirmed the right of publicity as an independent and viable cause of action...