How the Guernsey Image Rights Ordinance interacts with the US doctrine of preemption?
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Abstract: How does the Guernsey Image Rights Ordinance interact with the US doctrine of preemption? When a state law threatens to encroach on a federal law, such as the Copyright Act, the court must consider whether the federal law preempts the state law claim. Guernsey image rights involve the commercial protection and exploitation of a person’s identity and associated images linked to that person, in a similar manner to the right of publicity. Generally, courts have found that a persona does not fall within the subject matter of copyright. The “work” that is the subject of the right of publicity is the persona, i.e., the name and likeness of a celebrity or other individual. A persona can hardly be said to constitute a “writing” of an “author” within the meaning of the Copyright Act. Nonetheless, a right of publicity claim (either statutory or under the common law) fails if it is too similar to a copyright claim; in such a case, the state right-‐of-‐publicity law is preempted by federal copyright law. By registering a Guernsey Image Right, the distinction between a copyright claim and a publicity claim will become more distinct.