Toney v. L'Oreal: The Marginalization of Baltimore Orioles v. MLBPA, 805 F.2d 663 (7th Cir. 1986)

In the 1986 case of Baltimore Orioles v. Major League Baseball Players Association, the United States Court of Appeals for the Seventh Circuit held that state law right of publicity claims were generally preempted by the federal Copyright Act. Specifically, the court addressed the question of whether MLB clubs owned exclusive rights to the televised images of players during games. The players argued, in sum and substance, that a state law right of publicity afforded them a commercial interest in their televised images. As a matter of background, the right of publicity generally allows an individual the right to control the use of his or her name, image, likeness and voice for commercial purposes. The teams, however, maintained that the federal Copyright Act preempted any such interest. Reasoning that the players' performances lacked sufficient creativity for a separate interest under state law, the court rejected the players’ claim. This decision dramatically reduced opportunities for parties in the Seventh Circuit to argue state law right of publicity claims.

Baltimore Orioles had remained the law in the Seventh Circuit until May 6, 2005, when the court ruled in Toney v. L'Oreal USA, Inc. that Baltimore Orioles only preempts a very narrow category of cases—and does not generally preempt right of publicity claims at all. In Toney, the plaintiff alleged that the defendant had violated her right of publicity under Illinois law by the unauthorized use of her image in connection with the sale of a hair relaxer. In short, the plaintiff signed an agreement with the defendant to appear in certain product advertisements, but the defendant then used her image in other advertisements, reasoning that once the plaintiff had agreed to have her picture taken, she lost her rights to control the commercial use of the photograph. The plaintiff sued under an Illinois law of publicity, but a trial court held for the defendant, reasoning that her claim was preempted by the federal Copyright Act, per Baltimore Orioles. Persuaded by the plaintiff’s attorneys that this outcome was wholly inconsistent with her actual consent, the Seventh Circuit reversed the trial court and changed copyright law in the process.

Congratulations to Ms. Toney, and also her attorneys, Thomas J. Westgard of Chicago and Simon J. Frankel and Blake Lawit of Howard Rice Nemerovski Canady Falk & Rabkin in San Francisco. Seldom can attorneys succeed in reversing long-standing precedent, but as Toney demonstrates, sometimes hard work and creativity can do the trick.

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