copyright internet intellectual-property right-of-publicity dmca
Are pictures that don&#39;t have model releases protected under the DMCA?
<p>Let's say a user of my website posted a picture. I know that as long as my website and the picture satisfies the conditions of the DMCA, I have a safe harbor against copyright claims by the individual who owns the <em>rights</em> to the image.</p>

<p>But if it's a picture of a person, and the person never signed a model release form, do they have a claim against me for infringing their Rights of Publicity?</p>

<p>Basically what I'm asking is: in the DMCA, are copyright and right-of-publicity issues essentially treated as the same thing?</p>

<p>Copyright vests in the photographer that takes the photograph, or their employer. If the subject of a photograph does not own copyright over the photograph, then they can't bring a claim of copyright infringement against you.</p>

<p>The DMCA safe harbors only protect you against copyright infringement claims. Further, personality rights are recognised at state level through statute or common law.</p>

<p>On the matter of whether copyright and right of publicity are treated as the same, the seventh circuit has said in <a href="https://scholar.google.com.au/scholar_case?case=9554731769902791164&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr&amp;sa=X&amp;ved=0CB4QgAMoADAAahUKEwjq28_D65TIAhWDKpQKHctuBSA" rel="nofollow">Toney v. L'OREAL USA, INC., 406 F. 3d 905</a> at [911]:</p>

<blockquote>
  <p>... the bottom line is that Toney's claim under the Illinois right of publicity statute is not preempted by federal copyright law.</p>
</blockquote>
