                              In the
    United States Court of Appeals
                For the Seventh Circuit
                           ____________

No. 03-2184
JUNE TONEY,
                                                Plaintiff-Appellant,
                                  v.

L’OREAL USA, INC., THE WELLA
CORPORATION, and WELLA PERSONAL
CARE OF NORTH AMERICA, INC.,
                                             Defendants-Appellees.

                           ____________
           Appeal from the United States District Court for
          the Northern District of Illinois, Eastern Division.
            No. 02 C 3002—Ronald A. Guzman, Judge.
                           ____________
        ARGUED APRIL 8, 20041—DECIDED MAY 6, 2005
                      ____________



    Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
  KANNE, Circuit Judge. June Toney’s photograph was used
to advertise a hair product marketed by Johnson Products
Company. Toney consented to the use of her photograph for



1
  On petition for rehearing filed by the appellant, we vacated our
original opinion issued September 21, 2004, and, as directed, the
parties submitted supplemental briefs.
2                                               No. 03-2184

a limited time, but when a successor company later used the
photograph without her permission, Toney filed suit
alleging that her right of publicity had been violated. The
district court dismissed her claim after finding that it was
preempted by federal copyright law. Toney appeals, and we
reverse.


                     I. Background
  In November 1995, June Toney, a model who has appeared
in print advertisements, commercials, and runway shows,
authorized Johnson Products Company to use her likeness
on the packaging of a hair-relaxer product called “Ultra
Sheen Supreme” from November 1995 until November
2000. In addition, Toney authorized the use of her likeness
in national magazine advertisements for the relaxer from
November 1995 until November 1996. Additional uses (e.g.,
promotion of other products and/or for extended time periods)
were contemplated by the agreement, but, as specifically
stated in the agreement, the particular terms for any such
uses were to be negotiated separately.
  In August 2000, L’Oreal USA, Inc., acquired the Ultra Sheen
Supreme line of products from Carson Products, which had
previously acquired that same product line from Johnson.
Subsequently, in December 2000, the Wella Corporation
purchased and assumed control of the line and brand from
L’Oreal.
  In her complaint filed in state court, Toney asserted that
L’Oreal, Wella Corporation, and Wella Personal Care of
North America, Inc., (collectively, “defendants”) used her
likeness in connection with the packaging and promotion of
the Ultra Sheen Supreme relaxer product beyond the
authorized time period. Specifically, she claimed that the
defendants thereby violated (1) her right to publicity in her
likeness as protected under the Illinois Right of Publicity
Act, 765 Ill. Comp. Stat. 1075/1-60 (“IRPA”), and (2) the
Lanham Trademark Act of 1946, 15 U.S.C. § 1125(a).
No. 03-2184                                                3

  The case was properly removed to federal district court on
the basis of federal question jurisdiction. Following the
defendants’ motion to dismiss under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the district court found
that the IRPA-based claim met the conditions set out in
§ 301 of the Copyright Act (“Act”), 17 U.S.C. § 301, and was
therefore preempted. Toney later voluntarily dismissed her
Lanham Act claim with prejudice and the case was closed.
She now appeals the district court’s preemption determina-
tion. For the reasons stated herein, we reverse.


                       II. Analysis
  The question we must address is whether Toney’s claim,
brought under the IRPA, is preempted by the Copyright
Act. We review this legal question and the district court’s
decision to grant the defendants’ motion to dismiss de novo.
See Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir. 1997).
   The IRPA grants an individual the “right to control and to
choose whether and how to use an individual’s identity for
commercial purposes.” 765 Ill. Comp. Stat. 1075/10. Moreover,
the IRPA provides that “[a] person may not use an individ-
ual’s identity for commercial purposes during the indi-
vidual’s lifetime without having obtained previous written
consent from the appropriate person . . . .” 765 Ill. Comp.
Stat. 1075/30. However, these state law rights are only valid
if they do not interfere with federal copyright protections.
See, e.g., Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S.
272, 280 (1987) (stating that “when acting within constitu-
tional limits, Congress is empowered to pre-empt state law
by so stating in express terms.”).


A. Toney’s Claim Has Not Been Waived
  Before interpreting the statutes at issue, we will dispose
of the defendants’ waiver argument. The defendants argue
4                                                  No. 03-2184

that Toney has waived any claim that the IRPA protects her
“identity,” as compared to her likeness fixed in photographic
form. They point out that the word “identity” does not
appear in her complaint and that “a plaintiff cannot amend
[her] complaint by a brief that [she] files in the . . . court of
appeals.” Harrell v. United States, 13 F.3d 232, 236 (7th Cir.
1993); see also Bell v. Duperrault, 367 F.3d 703, 709 n.1 (7th
Cir. 2004) (citing Williams v. REP Corp., 302 F.3d 660, 666
(7th Cir. 2002) (“A party waives any argument that it does
not raise before the district court . . . .”) (quotation omit-
ted)). In addition to finding problems with the complaint,
the defendants point to the fact that in Toney’s response to
the defendants’ motion to dismiss before the district court,
she expressly stated that her claim “is narrowly directed to
the use of her likeness, captured in photograph or other-
wise.” (R. 13 at 4.)
   Although Toney’s complaint could have been more clear,
we find that the minimal requirements for notice pleading
have been met here. Under Federal Rule of Civil Procedure
8(a)(2), a pleading must contain a “short and plain statement
of the claim showing that the pleader is entitled to relief,”
as well as a jurisdictional statement and a demand for re-
lief. Id. Toney was required only to provide the defendants
with “fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.” Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168
(1993) (quotation omitted). Toney’s complaint alleges unau-
thorized commercial use of her likeness by the defendants
under the IRPA. The complaint does not explain the legal
theory that Toney relies upon, but it was not required to do
so. We find that Toney provided the defendants with
adequate notice of her claim. The identity claim was not
waived.
No. 03-2184                                                      5

B. Toney’s Claim Survives Preemption
   The IRPA states that a person’s “identity” is protected by
the statute. Identity is defined to mean “any attribute of an
individual that serves to identify that individual to an ordi-
nary, reasonable viewer or listener, including but not limited
to (i) name, (ii) signature, (iii) photograph, (iv) image, (v)
likeness, or (vi) voice.” 765 Ill. Comp. Stat. 1075/5. In short,
the IRPA protects a person’s right to publicity. The subject
matter of such a claim “is not a particular picture or photo-
graph of plaintiff. Rather, what is protected by the right of
publicity is the very identity or persona of the plaintiff as a
human being.” J. Thomas McCarthy, 2 RTS. OF PUBLICITY &
PRIVACY § 11:52 (2d ed. 2004) (emphasis in original)
(internal citations and quotations omitted). A photograph
“is merely one copyrightable ‘expression’ of the underlying
‘work,’ which is the plaintiff as a human being. There is
only one underlying ‘persona’ of a person protected by the
right of publicity.” Id. In contrast, “[t]here may be dozens or
hundreds of photographs which fix certain moments in that
person’s life. Copyright in each of these photographs might
be separately owned by dozens or hundreds of photogra-
phers.” Id. A persona, defined in this way, “can hardly be
said to constitute a ‘writing’ of an ‘author’ within the mean-
ing of the copyright clause of the Constitution.” Downing v.
Abercrombie & Fitch, 265 F.3d 994, 1003-04 (9th Cir. 2001)
(quotation omitted); see also Landham v. Lewis Galoob
Toys, Inc., 227 F.3d 619, 623 (6th Cir. 2000); Brown v.
Ames, 201 F.3d 654, 658 (5th Cir. 2000).2
 Having reviewed the rights protected by the IRPA, we
must now determine whether Toney’s claim has been pre-



2
   The cases cited here rely on both the common law right of pub-
licity and various state statutes. Although none of the statutes is
identical to the Illinois law, they are similar enough to provide
guidance for us. The concepts at issue are the same.
6                                                  No. 03-2184

empted by federal law. Section 301 of the Copyright Act de-
lineates two conditions which, if met, require the preemption
of a state-law claim in favor of the rights and remedies
available under federal law. Section 301(a) states:
    On and after January 1, 1978, all legal or equitable
    rights that are equivalent to any of the exclusive rights
    within the general scope of copyright as specified by
    section 106 in works of authorship that are fixed in a
    tangible medium of expression and come within the sub-
    ject matter of copyright as specified by section[ ] 102 . . .
    are governed exclusively by this title. Thereafter, no
    person is entitled to any such right or equivalent right
    in any such work under the common law or statutes of
    any State.
17 U.S.C. § 301(a). We will take the questions in reverse
order, first determining whether the work at issue is fixed
in a tangible form and whether it comes within the subject
matter of copyright as specified in § 102. Second, we consider
whether the right is equivalent to the general copyright pro-
tections which are set out in § 106.
  Section 102 of the Act defines the subject matter of copy-
right as “original works of authorship fixed in any tangible
medium of expression,” including “pictorial” works. 17 U.S.C.
§ 102(a). The Act’s definitional section explains that a work
is “fixed” in a tangible medium of expression “when its
embodiment in a copy . . . is sufficiently permanent or stable
to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory dura-
tion.” 17 U.S.C. § 101.
  The second aspect of the test requires a showing that the
right to be enforced is “equivalent” to any of the rights set
forth in § 106. The notes and commentary accompanying §
106 make it clear that copyright holders have five exclusive
and fundamental rights: reproduction, adaptation, publica-
No. 03-2184                                                       7

tion, performance, and display.3 17 U.S.C. § 106. A copy-
right is violated or infringed when, without permission,
someone other than the copyright holder exercises one of
these fundamental rights. Put differently, to avoid pre-
emption, a state law must regulate conduct that is quali-
tatively distinguishable from that governed by federal copy-
right law—i.e., conduct other than reproduction, adaptation,
publication, performance, and display. See, e.g., Trandes
Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 659-60 (4th Cir.
1993); 1 Melville B. Nimmer & David Nimmer, NIMMER ON
COPYRIGHT § 1.01[B][1] (1999).
  Applying the facts of this case to the requirements for
preemption, we find that Toney’s identity is not fixed in a



3
    Section 106 states:
      [T]he owner of copyright under this title has the exclusive
      rights to do and to authorize any of the following:
      (1) to reproduce the copyrighted work in copies or phono-
          records;
      (2) to prepare derivative works based upon the copyrighted
          work;
      (3) to distribute copies or phonorecords of the copyrighted
          work to the public by sale or other transfer of ownership,
          or by rental, lease, or lending;
      (4) in the case of literary, musical, dramatic, and choreo-
          graphic works, pantomimes, and motion pictures and
          other audiovisual works, to perform the copyrighted work
          publicly;
      (5) in the case of literary, musical, dramatic, and choreo-
          graphic works, pantomimes, and pictorial, graphic, or
          sculptural works, including the individual images of a
          motion picture or other audiovisual work, to display the
          copyrighted work publicly; and
      (6) in the case of sound recordings, to perform the copy-
          righted work publicly by means of a digital audio trans-
          mission.
8                                                No. 03-2184

tangible medium of expression. There is no “work of au-
thorship” at issue in Toney’s right of publicity claim. A per-
son’s likeness—her persona—is not authored and it is not
fixed. The fact that an image of the person might be fixed in
a copyrightable photograph does not change this. From this
we must also find that the rights protected by the IRPA are
not “equivalent” to any of the exclusive rights within the
general scope of copyright that are set forth in § 106.
Copyright laws do not reach identity claims such as
Toney’s. 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.
   We also note that the purpose of the IRPA is to allow a
person to control the commercial value of his or her identity.
Unlike copyright law, “commercial purpose” is an element
required by the IRPA. The phrase is defined to mean “the
public use or holding out of an individual’s identity (i) on or
in connection with the offering for sale or sale of a product,
merchandise, goods, or services; (ii) for purposes of advertis-
ing or promoting products, merchandise, goods, or services; or
(iii) for the purpose of fundraising.” 765 Ill. Comp. Stat.
1075/5. Clearly the defendants used Toney’s likeness with-
out her consent for their commercial advantage. The fact
that the photograph itself could be copyrighted, and that
defendants owned the copyright to the photograph that was
used, is irrelevant to the IRPA claim. The basis of a right of
publicity claim concerns the message—whether the plaintiff
endorses, or appears to endorse the product in question.
One can imagine many scenarios where the use of a
photograph without consent, in apparent endorsement of
any number of products, could cause great harm to the
person photographed. The fact that Toney consented to the
use of her photograph originally does not change this anal-
ysis. The defendants did not have her consent to continue
to use the photograph, and therefore, they stripped Toney
of her right to control the commercial value of her identity.
No. 03-2184                                                     9

C. Conflicting Precedent
  Our decision in Baltimore Orioles v. Major League Baseball
Players Ass’n, 805 F.2d 663 (7th Cir. 1986), has been widely
criticized by our sister circuits and by several commenta-
tors. Many interpret the case as holding that the right of
publicity as protected by state law is preempted by § 301 in
all instances. We take this opportunity to clarify our hold-
ing. The case simply does not stand for the proposition that
the right of publicity as protected by state law is preempted
in all instances by federal copyright law; it does not sweep
that broadly.
  Baltimore Orioles holds that state laws that intrude on
the domain of copyright are preempted even if the particular
expression is neither copyrighted nor copyrightable. Such a
result is essential in order to preserve the extent of the
public domain established by copyright law. Therefore, states
may not create rights in material that was published more
than 75 years ago, even though that material is not subject
to federal copyright. Also, states may not create copyright-
like protections in materials that are not original enough for
federal protection, such as a telephone book with listings in
alphabetical order. See Feist Publ’ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340 (1991). Baltimore Orioles itself makes
clear that “[a] player’s right of publicity in his name or
likeness would not be preempted if a company, without the
consent of the player, used the player’s name to advertise
its product.” 805 F.2d at 666 n.24. Therefore, the bottom
line is that Toney’s claim under the Illinois right of public-
ity statute is not preempted by federal copyright law.4



4
  This opinion has been circulated among all judges of this court
in regular active service. No judge favored a rehearing en banc on
the issue of whether federal copyright law preempts the Illinois
right of publicity.
10                                           No. 03-2184

                    III. Conclusion
  For the reasons stated above, the dismissal of Toney’s
right of publicity claim is VACATED; this case is REMANDED
for further proceedings in the district court.


A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—5-6-05
