The Illinois Legislature recently passed, and Governor Edgar signed into law, the Right of Publicity Act1 (Act). The Act, which has an effective date of January 1, 1999, prospectively replaces the Illinois common law right of publicity. The Act extends much greater protections than its common law predecessor, expanding both the scope and availability of the cause of action. This article details the history of the common law cause of action and the effects that the Act will have upon the rights developed at common law.
Common Law Appropriation
In order to fully understand the impact of the Act upon the law of Illinois, it is important to understand the development and state of right of publicity law in Illinois prior to the Act’s effective date. Common law right of publicity caselaw has been anything but unambiguous, and courts dealing with the appropriation2 tort have based their decisions in a mixture of tort, constitutional, property, contract and copyright law.
Historically, invasion of privacy has been subdivided into four branches: 1) intrusion on the solitude or seclusion of the plaintiff; 2) public disclosure of private facts; 3) placing the plaintiff in a false light in the public eye; and 4) appropriation of the plaintiff’s name or likeness for the commercial benefit of the defendant.3 It is not clear whether Illinois has adopted all of the branches but it is clear that it the fourth tort, appropriation, which is the subject of the Act, has been a valid cause of action for some time.
Illinois first recognized a cause of action for appropriation in 1952 in Eick v. Perk Dog Food Co.4 In Eick, the plaintiff alleged that defendants used her photograph in an advertisement for the sale of dog food without her permission. The advertisement depicted the plaintiff, a blind girl, and contained the captions "Help the blind own a Master’s Eye Dog" and "Dog owners your purchase of Perk Dog Food can give this blind girl a Master Eye Dog." Plaintiff sued for unlawful appropriation. The trial court dismissed the plaintiff’s suit for failure to state a cause of action. After thorough review of the history of invasion of privacy and of the then current state of authority throughout the country, the appellate court reversed and expressly recognized a right to privacy in Illinois. The court noted:
"Basically, recognition of the right to privacy means that the law will take cognizance of an injury, even though no right of property or contract may be involved and even though the damages resulting are exclusively those of mental anguish. A person may not make an unauthorized appropriation of the personality of another, especially of his name or likeness without being liable to him for mental distress as well as the actual pecuniary damages which the appropriation causes."5
The holding in Eick was decidedly narrow. The Eick court expressly limited its decision to the facts before it – use of the likeness of the plaintiff in an advertisement where no public interest was involved. The court also noted in dicta, that the right could be limited by the implied consent of the plaintiff, in areas of legitimate public interest and in cases where the likeness was not used in an advertisement.
The cause of action was expanded beyond the area of private interests in Annerino v. Dell Publishing Co.6 In that case, the plaintiff was the wife of a Chicago police officer who had been killed in a gun duel by Gus Amadeo. The facts were as follows: Amadeo was being held for arraignment at the Criminal Courts building in Chicago until his girlfriend smuggled a gun to him in his detention cell and he escaped. At some time after Amadeo’s escape, plaintiff’s husband, Detective Annerino, and his partner were on a routine check in a tavern when they encountered Amadeo. A skirmish ensued between Amadeo and Detective Annerino’s partner. Amadeo’s gun went off several times during the fight and one of the bullets struck Detective Annerino. Detective Annerino was rushed to the hospital where he died several hours later. Amadeo was later killed in a gun duel with police. The plaintiff met her husband at the hospital and pictures were taken of the plaintiff in a state of grief. Three months later, Dell Publishing in its "Inside Detective Magazine" printed a story entitled "If You Love Me, Slip Me a Gun," which depicted the events surrounding Detective Annerino’s death. One of the pictures of the plaintiff taken at the hospital was printed along with the article.
Plaintiff brought suit against defendant, Dell Publishing, alleging that the use of her picture was an unlawful appropriation. Defendant moved to strike the complaint arguing that since plaintiff’s picture appeared in conjunction with a story about a newsworthy occurrence, it was not an actionable invasion of privacy. The circuit court struck the complaint. The appellate court reversed finding that although the holding in Eick was limited to use of a photograph of a person who was not the subject of a newsworthy event, in recognizing the cause of action the Eick court "intended to protect inviolate the personality of the individual."7 Therefore, the court found, use of the plaingiff’s likeness in connection with a transmission of information about a newsworthy event is beyond the plaintiffs right to privacy only if the use was a "proper exercise of freedom of the press."8 [emphasis supplied]. In the case at bar, a question of fact remained as to whether the article was a fictionalized account published for the defendant’s commercial gain or whether the article was such a proper exercise.
Two cases followed that defined who could properly bring an action for an unlawful appropriation. In Bradley v. Cowles Magazines, Inc.9, the court refused to allow the plaintiff to recover for appropriation based upon articles published by the defendant regarding the circumstances of the murder of the plaintiff’s son. The plaintiff herself was not featured or publicized in the articles. The Bradley court, stated: "Guarantee of the right of privacy is not the guarantee of hermitic seclusion[,] * * * [t]o find an area within which the citizen must be left alone is the purpose of the action. * * * It is important, therefore, that in defining the limits of this right, courts proceed with caution." The court found that the right to privacy is purely personal and one may only recover for invasion of one’s own privacy.
The court in Carlson v. Dell Publishing Company, Inc.10 found a further limitation on the right to privacy and denied recovery for an appropriation of a decedents likeness that occurred after decedent’s death. The plaintiffs in Carlson were the administrator of the decedent’s estate and the decedent’s children. The defendant published a picture of decedent in its "Front Page Detective" magazine along with a fictionalized account of the decedent’s rape and murder. Citing Bradley, the court found that children had no cause of action against Dell. In denying recovery to the administrator the court reasoned that mental anguish is an essential element of the cause of action and in the case of a deceased individual, none could be proven.
The issue of consent was before the court in Smith v. WGN11. The appellate court in Smith, reversed the directed verdict for the defendant entered by the trial court. The plaintiff verbally consented to being filmed serving a tennis ball and then running at the net. His image was later used in a television commercial for H.A. Hair Arranger. The trial court entered a directed verdict based on Smith’s consenting to be filmed. The appellate court, however found that a question of fact existed as to whether Smith, in agreeing to be filmed, impliedly consented to have his image televised.
The Illinois Supreme Court addressed the right to privacy for the first time in Leopold v. Levin12. In 1924, Nathan F. Leopold , Jr., the plaintiff in the Leopold case, and his partner Richard Loeb, pleaded guilty to the highly publicized kidnapping for ransom and murder of Bobby Franks. In the instant suit, Leopold alleged several violations of his right to privacy by defendants resulting from the publishing of a novel, play and movie, all entitled "Compulsion," which were fictionalizations of his infamous crime. Among the defendants were the author, publishers and distributors of the novel, play and movie. The Illinois Supreme Court found that "no right to privacy attached to matters associated with [Leopold’s] participation in that completely publicized crime."13 Despite the fact that defendants appropriated plaintiff’s name and likeness without the plaintiff’s consent and used them for their commercial benefit, plaintiff could not recover because the use concerned a matter of public record.
In Geisberger v. Willuhn14,
the plaintiff was a patient of defendant, a doctor. An employee of the defendant disclosed the plaintiff’s name to police as a possible suspect in the robbery of a Marshall Field store. Without directly addressing the appropriation issue, the Geisberger court recited all four privacy torts citing the Restatement of Torts, but found that the defendant’s actions did not violate any of them.
The next major development in Illinois right of publicity law was seen in the 1985 Douglass v. Hustler Magazine, Inc.15 case. In this 7th Circuit case, the issue was whether publication of a picture in a non-advertising setting was a commercial use. In 1975, the plaintiff, Robyn Douglass, posed nude, alone and with another woman, for a freelance photographer. The photographs were to be used in two features in Playboy magazine. Some of the pictures were published as planned and others were not. In 1981, after Douglass had gained some notoriety as an actress, Hustler magazine published some of the previously unpublished photographs along with some stills from her movies in a feature entitled "Robyn Douglass Nude." Douglass filed suit alleging in part that defendants use of her image was an unlawful appropriation. Although Illinois courts had only granted relief to that point for appropriations used in an advertisement, Judge Posner writing for the majority, stated "we guess that Illinois would recognize a ‘right of publicity’ on the facts . . . of the present case."
The court found that while Hustler’s publication of the nude photographs may have been a violation of Douglass’s right of publicity, publication of the stills from her movies was not a violation. After a discussion of the parallels between right of publicity and copyright law, the opinion states that "republishing uncopyrighted photographs of celebrity is not violative of the right of publicity." This, the court concludes, is because publishing such pictures is similar to "fair use" in copyright law and is justified by the newsworthiness of celebrities.
The interplay of the appropriation tort and freedom of the press was revisited by the court in Berkos v. National Broadcasting Co.16 Plaintiff, Christy S. Berkos, a Cook County circuit judge, sued NBC and Peter Karl based on their use of his name in a news broadcast about the "Operation Graylord" investigation. Then Appellate Justice McMorrow, writing for the majority found that an appropriation is not actionable when the plaintiff’s image is used as part of a "vehicle of information." "The use by NBC and Karl of Berkos’ photograph in the broadcast in question" the opinion states, "was a part of the communication of news information, and is clearly distinguishable from the commercial use made of plaintiff’s likeness in Eick."
In Dwyer v. American Express Company17 a class of plaintiffs sued the credit card company for renting lists of cardholder names categorized by purchasing patterns for advertising purposes. Plaintiffs alleged inter alia, that the company’s disclosure of their names was an appropriation. The Dwyer court cited two cases arriving at its decision. First, the court cited a Utah case that denied recovery to a group of plaintiffs whose pictures were used in campaign ads because the plaintiffs did not allege that they enjoyed any fame or that their pictures held any intrinsic value. Second, the court cited an Ohio case that found that using a person’s name on a "personal profile" list and distributing that list was not an unlawful appropriation of that individual’s likeness. The court reasoned that since the names in the instant case had no intrinsic value to the individual plaintiffs, defendant did not deprive the plaintiffs of the value in their names and therefore there was no unlawful appropriation.18
The most recent Illinois case Ainsworth v. Century Supply Co.19, again addressed the issue of consent. The plaintiff was a worker who consented to be filmed installing ceramic tile for an instructional videotape that Century distributed to its customers. Century then hired TCI to make a television commercial for them. TCI used a portion of the footage of plaintiff in the commercial. Plaintiff sued Century and TCI for, among other things, unlawful appropriation. The trial court granted TCI’s motion to dismiss the claim against TCI because TCI did not commercially benefit from the appropriation of plaintiff’s likeness. Century filed a motion for summary judgment, which the trial court granted holding that the plaintiff did not sustain actual damages and that there was not evidence to support a claim for punitive damages.
The appellate court reversed both holdings. With regard to TCI, the appellate court found that TCI received commercial benefit because TCI made a television commercial using plaintiff’s likeness and was paid. The court also rejected TCI’s argument that the commercial was simply a "vehicle of information" as in Berkos stating "use of plaintiff’s likeness was not incidental to the transmission of information." With regard to Century, the court found that the plaintiff could prove the value of the use of his likeness to Century in addition to damages resulting from emotional distress.
A few things can be said about the Illinois common law cause of action as it existed at the effective date of the act with some degree of certainty. Illinois has, since the decision in Eick, recognized a common law cause of action for unlawful appropriation. The elements of the cause of action are: (1) unlawful appropriation (2) of the likeness of the plaintiff for (3) the commercial benefit of the defendant. In order for the appropriation to be actionable, the plaintiff must not have consented to the use. Consent can be oral and can be implied. The common law definition of likeness certainly includes a picture or film of the individual but does not appear include the individual’s name. Commercial benefit to the defendant encompasses much more than just use of the likeness in advertising. There is a first amendment limitation on the cause of action, therefore, an individual whose likeness is used in connection with transmission of information pertaining to matters of public concern enjoys lesser protection than he would if the matter was of private concern. The cause of action is personal and does not survive the death of the individual whose likeness had been appropriated. Finally, one may recover damages for the value of the use to the defendant and for emotional distress suffered by the plaintiff.
The Act supplants the common law for violations of the right of publicity occurring after the effective date of the Act. Common law still governs acts that occurred prior to its effective date and the Act does not effect, except to supplement, the common law with respect to the other common law right to privacy torts.20 The Act is laid out in a dozen short sections but has a tremendous impact on the cause of action as defined by common law.
Like the common law, the Act center’s around the use of one’s identity. However the Act defines individual more broadly to including one’s name, signature, photograph, image, likeness or voice.21 The first substantive section of the Act recognizes that an individual has the right to choose how, when and whether to use his identity for commercial purposes.22
The heart of the Act lies in section 30(a). This section precludes the use of an individual’s identity for commercial purposes without prior written consent from that individual or the person to whom the individual’s rights have been transferred. By requiring writing, section 30(a)23 does away with the common law concept of oral consent, actual or implied. The definition of individual is also broad. It is not limited to a person who chose to use his identity for commercial purposes during his lifetime, but includes all natural persons living or deceased.
A commercial purpose under the Act includes use of the likeness in advertising, promotion, or in connection with the sale of a product, goods merchandise or services, and use of the likeness for the purpose of fundraising.24 Several uses are exempted from the Act including attempting to portray, describe, or impersonate an individual in a live performance, play, book, article, film or one of a number of other types of work.25 Also exempted are non-commercial uses including news, public affairs, sports broadcasts and political campaigns.26 Truthfully identifying the individual as the author or performer of a work is also exempted.27 In addition, use in promotional material for one of the foregoing is not considered use for a commercial purpose.28 Finally, display of specimens of a professional photographer’s work about his place of business is exempted unless the individual portrayed objects to the use in writing.29
A radical departure from common law under the Act is that the rights of the individual are property rights and are transferable, descendable. The rights are also subject to a limited intestate succession.33 The right of publicity may be enforced not only by the individual but also by an authorized representative,34 a transferee of the rights, or any person that person who has an interest in the rights after the individual’s death. A still further departure is the term of protection. Apparently borrowing a concept from copyright law,35 the protections afforded by the Act last for the life of the individual plus 50 years.36
A successful plaintiff may recover the actual damages caused by the appropriation, the profits gained by the violator, or both, but in no event less than $1000.37 The Act puts the burden on the plaintiff to prove gross revenues and on the defendant to prove expenses deductible from gross revenues. Attorney fees, costs and expenses are also available to the prevailing party.38 The Act allows for recovery of punitive damages against one who willfully violates the Act.39 Finally, temporary restraining orders and preliminary and permanent injunctive relief are also available40 upon showing of cause under the Code of Civil Procedure.41
The drafters of the Act have taken almost every opportunity to expand the right of publicity first recognized at common law. The statutory cause of action encompasses more in its definitions of likeness and individual. It allows more people to enforce the rights for a longer period of time, does away with oral consent and sets a minimum recovery for a successful plaintiff. Although the long-term effects of the Act remain to be seen, the short-term effects are clear. As of January 1, 1999, many more people are potential plaintiffs in a right of publicity action in Illinois.
1P.A. 90-747 (H.B. 1422).
2The terms appropriation, unlawful appropriation and right of publicity are used interchangeably throughout this article and unless otherwise noted are intended to have the same meaning as appropriation of the likeness of another for commercial gain.
3See Restatement of Torts §652A comment (b). And See Restatement of Torts §§652B -652E.
4347 Ill. App. 293, 106 N.E.2d 742 (1952).
5347 Ill. App. 293, 299(1952).
617 Ill. App. 2d 205, 149 N.E.2d 761 (1958).
717 Ill. App. 2d at 208, 149 N.E.2d at 762 (1958).
817 Ill. App. 2d at 208, 149 N.E.2d at 762 (1958).
926 Ill. App. 2d. 331, 168 N.E. 2d 64 (1960).
1065 Ill. App. 2d 209, 213 N.E. 2d 39 (1965).
1147 Ill. App. 2d 183, 197 N.E. 2d 482 (1964).
1245 Ill. 2d 434, 259 N.E.2d 250 (1970).
1345 Ill. 2d at 442, 259 N.E.2d at 255 (1970)
1472 Ill.App.3d 435, 390 N.E.2d 945 (1979),
15769 F.2d 1128 (7th Cir, 1985).
16161 Ill.App.3d 476, 515 N.E.2d 668 (1987).
17273 Ill. App. 3d 742, 652 N.E.2d 1351 (1995).
18273 Ill. App. 3d 742, 747, 652 N.E.2d 1351, 1355 (1995).
19295 Ill. App. 3d 644, 693 N.E.2d 510 (1998).
20765 ILCS 1075/60 (West 1998).
21765 ILCS 1075/5 (West 1998).
22765 ILCS 1075/10 (West 1998).
23765 ILCS 1075/30 (West 1998).
24765 ILCS 1075/5 (West 1998).
25765 ILCS 1075/35(b)(1) (West 1998).
26765 ILCS 1075/35(b)(2) (West 1998).
27765 ILCS 1075/35(b)(3) (West 1998).
28765 ILCS 1075/35(b)(4) (West 1998).
29765 ILCS 1075/35(b)(1) (West 1998).
30765 ILCS 1075/15 (West 1998).
31Only an individual’s spouse, parents, children and grandchildren may take by intestate succession. 765 ILCS 1075/15 (West 1998).
32765 ILCS 1075/20(a)(1) (West 1998).
33765 ILCS 1075/20(a)(2) (West 1998).
34765 ILCS 1075/20(a)(3) (West 1998).
35At the time of the passage of the Act, the term of protection under the Act was the same as the term of federal copyright protection. In the case of an individual author, federal copyright protections endured for the life of the author plus 50 years. 17 U.S.C. §302 (1997). However, on October 27, 1998, President Clinton signed the "Sonny Bono Copyright Term Extension Act" into law. The statute extends the term copyrights by 20 years thus making the copyright term the life of the author plus 70 years.
36765 ILCS 1075/30(b) (West, 1998).
37765 ILCS 1075/40(a) (West 1998).
38765 ILCS 1075/55 (West 1998).
39765 ILCS 1075/40(b) (West 1998).
40765 ILCS 1075/55 (West 1998).
41735 ILCS 5/11-101 et seq (West 1998).
Stephen P. Trimper was a Law Clerk for Illinois Supreme Court Justice John L. Nickels. He received his Undergraduate Degree in 1990 from SUNY-Buffalo, his Law Degree in 1993 from Northern Illinois University and his LLM in Intellectual Property Law in 1995 from John Marshall. He may be reached at email@example.com.