Right of Publicity

Identity Is Not a Work of Authorship: Toney v. L'Oréal and the Limits of Copyright Preemption

The Seventh Circuit's Toney decision holds that the Copyright Act does not preempt an Illinois Right of Publicity Act claim, anchoring the rule that a persona is neither fixed nor authored.

January 6, 2026
A model's promotional photograph on a retail hair-care package
Toney turned on the difference between the photograph and the person depicted in it. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

In Toney v. L’Oréal USA, Inc., No. 03-2184 (7th Cir. May 6, 2005), the United States Court of Appeals for the Seventh Circuit (Kanne, Evans, and Williams, JJ.) held that a claim under the Illinois Right of Publicity Act, 765 ILCS 1075/1 et seq. (“IRPA”), is not preempted by Section 301 of the Copyright Act. The plaintiff, professional model June Toney, had consented to the use of her photograph on packaging and promotional materials for the Ultra Sheen Supreme hair relaxer for a limited period; she alleged that L’Oréal and the Wella defendants continued using her likeness after that authorization lapsed. The district court (N.D. Ill., No. 1:02-cv-03002) dismissed the IRPA claim under Rule 12(b)(6) as preempted, and an original panel opinion affirmed that dismissal on preemption grounds (384 F.3d 486 (7th Cir. 2004)). On rehearing, the panel vacated its own opinion and reversed, producing the decision that now sits among the most-cited authorities for the proposition that the subject matter of copyright does not reach a human persona.

At a glance

  • Holding: Section 301 of the Copyright Act does not preempt an IRPA right-of-publicity claim, because (1) a person’s identity is not “fixed in a tangible medium of expression” and is not a “work of authorship” within the subject matter of copyright, and (2) the state right is not equivalent to the exclusive rights enumerated in 17 U.S.C. § 106.
  • Procedural posture: Rule 12(b)(6) dismissal reversed; remanded. Notably, the Seventh Circuit reached the opposite result on rehearing from its own first panel opinion, and no judge in active service called for rehearing en banc.
  • Core distinction: The copyrightable artifact is the photograph; the IRPA protects the identity the photograph depicts. Ownership of the copyright in the image is “irrelevant” to whether the defendant may exploit the model’s persona to suggest endorsement.
  • Doctrinal significance: Toney is a leading articulation of the “extra element” approach to § 301 and of the narrower threshold question — whether the right asserted even falls within copyright’s subject matter at all.

The state-by-state patchwork

There is no single American right of publicity. The interest — control over the commercial exploitation of one’s name, likeness, voice, and other indicia of identity — is a creature of state law, and it varies along nearly every axis that matters to a litigant. Roughly half the states recognize the right by statute; others recognize it only at common law, often folded into the privacy tort of appropriation that Dean Prosser catalogued; a handful recognize it weakly or not at all. The statutes that do exist diverge on the elements of the claim, the categories of identity protected (name and likeness universally, but voice, signature, and “persona” only sometimes), whether the right survives death, how long any post-mortem term runs, whether it is descendible and assignable, and what defenses — newsworthiness, First Amendment, incidental use — apply.

Toney is a useful entry point precisely because it forces a court to take one statute on its own terms. The IRPA is a comparatively modern, detailed enactment: it defines “identity” to mean “any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener,” and it confers a transferable, descendible right enduring fifty years after death. That statutory specificity matters to the preemption analysis, because preemption turns on what, precisely, the state right protects — and the IRPA tells you in its own words.

Illinois’s IRPA against California’s § 3344

The instinct of many practitioners is to treat California Civil Code § 3344 as the template for statutory publicity claims. It is not, and the contrast with the IRPA is instructive. Section 3344 imposes a list of predicate elements that the IRPA does not require in the same form. Most significantly, § 3344(a) demands a “knowing” use of the plaintiff’s name, voice, signature, photograph, or likeness, and California courts read § 3344 to require that the plaintiff be “readily identifiable” from the use, plus a “direct connection” between the use and the commercial purpose. California also bifurcates its law: § 3344 is a statutory overlay that sits atop a separate common-law appropriation tort, and the two have distinct elements, so a California plaintiff routinely pleads both.

The IRPA, by contrast, is consolidating rather than supplemental — it abolished the common-law right of publicity in Illinois and replaced it with the statute, so there is a single cause of action with a single set of elements: an appropriation of identity, for commercial purposes, without written consent. Illinois does not graft on § 3344’s express “knowing use” scienter element, and its definition of “identity” is framed functionally (anything that identifies the person to an ordinary observer) rather than as a closed list of enumerated attributes. The post-mortem terms also differ in detail from California’s regime under Civil Code § 3344.1. For a defendant choosing where a multistate campaign is most exposed, these are not academic distinctions: the same advertisement can be actionable in one forum and defensible in another depending on which state’s statute supplies the rule of decision.

Section 301 preempts a state-law right when two conditions are met: the work in which the right is asserted falls within the subject matter of copyright as defined in §§ 102 and 103, and the state-created right is “equivalent to any of the exclusive rights within the general scope of copyright” in § 106. Courts in the Seventh Circuit apply the familiar “extra element” gloss to the second prong: if the state claim requires proof of an element beyond mere reproduction, distribution, display, performance, or adaptation, the right is qualitatively different and survives.

Toney is most often cited for resolving the first prong against preemption — the subject-matter question — which is the cleaner ground. The court reasoned that “a person’s likeness — her persona — is not authored and it is not fixed.” A photograph can be copyrighted; a face cannot. Because identity is not a “work of authorship” within § 102, it falls outside the subject matter of copyright, and a right protecting it cannot be preempted, full stop. The court fortified the conclusion on the second prong as well: the IRPA protects against a distinct injury — the false suggestion of endorsement, the commercial trading on a persona — which is “not the same” as the reproduction of a tangible image. That endorsement interest is the “extra element” that takes the claim outside § 106. Critically, the court deemed it “irrelevant” that the defendants owned the copyright in the photograph itself; owning the picture is not the same as owning the right to imply that the model stands behind the product.

The decision is not unanimous across the circuits. Other courts — including the Sixth Circuit in subsequent litigation — have found particular publicity claims preempted where the gravamen was, in substance, the reproduction of a copyrighted work rather than the exploitation of a persona. The lesson of the split is that preemption is claim-specific: a publicity claim pleaded as an objection to copying the image is vulnerable, while one pleaded as an objection to the unauthorized commercial use of identity is not.

Why there is no federal right of publicity

The structural backdrop to all of this is the absence of any federal right of publicity. Congress has never enacted one. The closest federal analogue, Section 43(a) of the Lanham Act, reaches false endorsement and false association, but it is a consumer-confusion statute, not a property right in identity — Toney herself voluntarily dismissed her Lanham Act count and proceeded on the state claim alone. The Copyright Act protects works of authorship, not personas, which is exactly the gap Toney exposes. The result is that the most personal of commercial interests is governed entirely by the contingent geography of state law, with federal copyright operating only as a potential preemption defense rather than as an affirmative source of protection. Until and unless Congress legislates, the patchwork is the system, and choice-of-law analysis does the work that a uniform federal statute would otherwise perform.

Open questions

  • How far does the subject-matter rationale extend? Toney says identity is categorically outside copyright’s subject matter. Does that survive when the only proof of “use of identity” is the verbatim copying of a single copyrighted photograph, with no separable persona interest? Courts have divided.
  • What is the choice-of-law rule for a national campaign? When a likeness appears nationwide, which state’s publicity statute governs — domicile, place of injury, or each state where the ad ran? Toney did not need to decide.
  • Does the analysis change for AI-generated or synthetic likenesses? A persona that is computationally generated rather than photographed stresses both the “not fixed” and “not authored” premises in ways the 2005 panel never contemplated.

Implications

  • Plead the persona, not the picture. Counsel asserting a publicity claim should frame the injury as the unauthorized commercial exploitation of identity and the false suggestion of endorsement — the framing that defeats § 301 — rather than as objection to reproduction of an image.
  • Copyright ownership is not a license to imply endorsement. A party that owns or licenses a photograph still needs separate publicity clearance from the person depicted; Toney makes the two rights orthogonal.
  • Audit consent durations and scope. The dispute arose from continued use after a time-limited release lapsed. Talent and image-use agreements should specify term, territory, media, and renewal mechanics with precision.
  • Run the multistate exposure analysis. Because the IRPA and § 3344 differ on scienter, identifiability, and post-mortem terms, a single creative asset should be vetted against the most plaintiff-favorable forum where it will appear.

Frequently asked questions

Does Toney mean copyright never preempts a right-of-publicity claim? No. It holds that a claim protecting identity is not preempted, because identity is outside copyright’s subject matter and the endorsement interest is an “extra element.” A claim that is in substance an objection to copying a copyrighted image can still be preempted, as other circuits have found.

Why couldn’t L’Oréal rely on owning the copyright in the photograph? The Seventh Circuit deemed copyright ownership “irrelevant” to the IRPA claim. Owning the tangible image conveys the right to reproduce that image; it does not convey the right to use the model’s persona to suggest that she endorses the product.

Is there a federal right of publicity that would have simplified this? No. Congress has not created one. The Lanham Act addresses false endorsement and confusion but is not a property right in identity, and the Copyright Act protects works, not personas — which is the gap that leaves publicity law to the states.

Authorities and sources