The right to choose whether and how to use one’s identity for commercial purposes is a property right, now explicitly called the "right of publicity.2" Aside from injunctive relief,attorneys fees, and costs,anyone who violates this right may be liable for either: (1)"actual damages, profits derived from the unauthorized use, or both; or (2) $1,000," whichever is the greater of the two remedial alternatives.3
This is a dramatic change from the Illinois common-law right of privacy. Judge Posner understandably characterized Illinois as a follower rather than a leader in developing the common-law right of privacy.4 Indeed, it was probably this judicial timidity in providing an analytical foundation for the right of privacy and the lethargy in addressing doctrinal ambiguities that led to the passage of the Illinois statute. Unlike California courts,for example,Illinois courts never clearly separated the right of publicity from the right of privacy. Hence the need for the Right of Publicity Act.
Although the Act provides some guidance in the determining the profits derived from unauthorized use, it provides no definition or guidance in determining what "actual damages" are recoverable. It is likely that the drafters expected the common law of "actual damages" to provide meaning to the statutory term. This article will suggest the kinds of "actual harm" that are recoverable for violation of a right of publicity.
The problem is that Illinois courts never explicitly recognized a right of publicity.5 Instead they followed the Prosser model by dividing the right of privacy into four branches: (1) intrusion (2) appropriation of another’s name or likeness (3) public disclosure of private facts (4) false light.6 Although recognizing the other branches, Illinois courts are divided about the existence of the intrusion branch of tort privacy law.7 Apparently the intrusion, public disclosure, and false light branches continue to exist as "supplemental" to the new statute.8
But what about appropriation of another’s name or likeness ? In keeping with the analysis of Professor William Prosser, Illinois has classified the appropriation branch as part of tort privacy law.9 Prosser viewed the appropriation branch as protecting both a commercial interest and a personal dignity interest.10 The Right of Publicity Act now separates commercial exploitation of another’s identity as a separate statutory claim for violation of a right of publicity.
(A) PLAINTIFF’S LOSS
1. Market Value of Plaintiff’s Identity
The clearest recovery for "actual harm" involving a breach of the right of publicity is based on the degree of commercial injury to the plaintiff. The basic test for the calculation of damage is the fair market value of the property right in plaintiff’s identity. Where a celebrity is involved a market typically exists for placing a value on the appearance, name, and likeness of that celebrity. A celebrity whose identity has been appropriated for the defendant’s commercial use is generally not complaining of bruised feelings. The commercial appropriation of a celebrity’s likeness may have even been flattering and certainly not defamatory.
Yet the gist of the complaint is that a celebrity, such as an actor or ball-player, likes the publicity but wants to be paid for the use of his stolen identity. Profiting from the stolen identity of Sammy Sosa causes a loss to the "property" right of Sammy Sosa to commercially exploit his own name as he sees fit, just as he may or may not develop an unimproved piece of real estate he purchases. The theory is that the defendant has no more right to take Sosa’s identity for commercial gain than to take his real estate.
In Hogan v. A.S. Barnes & Co.11 defendant appropriated the name and image of Ben Hogan, the famous golfer, as part of defendant’s book on golf. In determining the $5,000 market value of Hogan’s name, the court considered Hogan’s standing and earnings in the golfing world and specifically what Hogan had earned from exhibitions, endorsements and licenses he had granted, as well as money he earned from royalties on books and articles he wrote. This amount was reduced by several factors. The defendant made no profit on the sale of defendant’s book. And Hogan’s name appeared with that of 11 other golfers and references to Hogan only occurred on seven out of 159 pages.
Although a celebrity will probably obtain a larger award of damages simply because a celebrity’s persona has more commercial value, the right of publicity extends as well to the non-celebrity.12
It may be even possible to show a market value for the image of an ordinary person in advertising. In fact, it is common knowledge that sometimes the effectiveness of an advertisement depends on the plain-folks ordinariness of the person. But even where this is not possible the courts have uniformly recognized that the plaintiff is entitled to nominal damages.13
2. Damage to Plaintiff Beyond Present Market Value
The timing or context of the unconsented appropriation may damage a plaintiff beyond present market value and affect future earnings and future publicity value of plaintiff’s identity. When Robyn Douglass, the actress, sued Hustler for using nude photographs of her in its magazine without permission, Judge Posner stated that "an important aspect of the ‘right of publicity’ is being able to control the place as well as time and number of one’s public appearances; for example, no celebrity sells his name or likeness for advertising purposes to all comers.14"
If plaintiff’s identity is associated with a defective product, plaintiff’s professional standing is affected in the future. That will in turn impact future earnings and licensing opportunities. If the plaintiff has already licensed his image the defendant’s appropriation will diminish the value of those licenses or might overexpose the plaintiff and reduce his or her future value.
In Waits v. Frito-Lay,Inc.15 Tom Waits, a singer with a distinctly raspy voice and strong public views against musicians appearing in commercials, sued Frito-Lay,Inc. for intentionally and blatantly using a sound-a-like singer in its commercial. Under California law the distinctive voice of a professional singer who is widely known is protected from appropriation. The court held that the damage award could include compensation for injury to reputation because the jury could have inferred that the commercial made Waits out to be a hypocrite for appearing to endorse Doritos.
(B) DEFENDANT’S GAIN
The new governor of Minnesota, Jesse "The Body" Ventura, sued his employer for entering into a licensing agreement, without his permission, for the production of about 90 tapes exhibiting Ventura’s image. He then sued for royalties on the use of his videotaped likeness. The federal court of appeals affirmed a verdict for Ventura on the basis of unjust enrichment and quantum meruit.16 This remedy turns not on the damage to the plaintiff but the gain to the defendant. The jury was permitted to rely on plaintiff’s expert witness who testified to the prevailing market rate for video royalties to performers in comparable circumstances. Since the expert testified a reasonable royalty was between 3.5% and 7.5%, a jury award of about 3.2% of defendant’s net profits was upheld.
The Right of Publicity Act provides for unjust enrichment in the form of profits both in conjunction with, or in addition to, actual damages. This seems correct since otherwise a defendant by taking plaintiff’s identity without permission, in effect, could foist a compulsory license on the plaintiff and would only be obligated to pay the plaintiff’s harm, even though the defendant made a profit of the deal. By taking away profits made by the defendant the statute removes the incentive to steal the plaintiff’s identity by only paying market value. The Right of Publicity Act requires that the plaintiff prove the defendant’s "gross revenue" arising from the appropriation. The burden then shifts to the defendant to prove "properly deductible expenses" in order to reduce the profit margin.17
(C) MENTAL AND EMOTIONAL DISTRESS
Recovery for mental and emotional distress typically associated with the appropriation of a name, image, or likeness has consistently been deemed recoverable under the right of privacy.18 This is correct because tort law is concerned with injuries to the person and personality of the plaintiff. A right of publicity is a property right that has little in common with tort law, except by analogy to the law of conversion and trespass. Secondly, the right of publicity involves the use of the plaintiff’s identity in a way that is not necessarily false or derogatory, unlike the privacy claims of false light. Moreover, if a person is a celebrity, a right of privacy breach will be hard to maintain because celebrities usually crave publicity rather than shrink from it. And finally a right of privacy may not be assigned because it is a personal right. A right of publicity is not only assignable but also inheritable under the Right of Publicity Act.19
The first case involving the right of privacy in Illinois, Eick v. Perk Dog Food Co.,20 involved an advertisement which appropriated the photograph of a blind girl as the prospective recipient of a "Master Eye Dog," even though she already had such a dog. The plaintiff claimed the advertisement, promoting the sale of dog food, caused her "to lose the respect and admiration of those who knew her and to suffer humiliation and mental anguish" without alleging any special damages. In ruling she had a cause of action for breach of privacy, the Illinois Appellate Court stated: "Basically, recognition of the right to privacy means that the law will take cognizance of an injury, even though no property or contract right may be involved and even though the damages resulting are exclusively those of mental anguish.21"
If the girl in Eick had sued for the market value of her image or for unjust enrichment, the case would be analyzed as a right of publicity case. However, probably because of the difficulty of proving commercial damages and the undeveloped right of publicity, she relied on the mental-anguish of right of privacy.
The basic distinction that must now be made in Illinois is between a common-law right of privacy and a statutory right of publicity. Section 60 of the Act, as of January 1, 1999 states that the "rights and remedies" under the Act "are meant to supplant those available under the common law." The next sentence of Section 60 states:"Except for the common law right of publicity, the rights and remedies provided under this Act are supplemental to any other rights and remedies provided by law including, but not limited to, the common law right of privacy.22" The second sentence appears to almost replace what the prior sentence had taken away: The common-law right of privacy continues to exist in a "supplemental" way, but the common-law right of publicity is absorbed by the statute.
It appears that under Section 60 of the Right of Publicity Act if a plaintiff, such as the blind girl in Eick, elects to sue for emotional and mental distress under an appropriation theory of right to privacy in tort law she still may maintain the action as "supplemental" to the statute. However, if she elects to recover only the pocketbook value of the use of her identity she may not sue under common-law right of privacy, to the extent Illinois ever recognized it, because the statute superseded the common-law right of privacy.
1 765 ILCS sec.1075/1(1998) et seq.
2 Id. sec.1075/10
3 Id. sec. 1075/40
4 Hayes v. Alfred A. Knopf, Inc., 8 F.3d 1222,1234(7th Cir. 1993).
5 Douglass v. Hustler Magazine, Inc., 769 F.2d 1128(7th Cir.1985) (Posner, J.: "But forced to guess, we guess that Illinois would recognize a ‘right of publicity’...). The reality is that only the federal courts in Illinois spoke explicitly of a right of publicity. See, e.g., T.J. Hooker v. Columbia Pictures Indus., 551 F.Supp. 1060(N.D.Ill. 1982) (no Illinois citations).
6 See, e.g., Dwyer v. American Express Co., 273 Ill.App.3d 742, 652 N.E.2d 1351(1995).
7 M. Polelle & B. Ottley, 1 ILLINOIS TORT LAW sec. 6.07 & 6.08, at 6-13 & 6-14 (2d ed. 1993).
8 765 ILCS sec.1075/60 ("Except for the common law right of publicity, the rights and remedies provided under this Act are supplemental to any other rights and remedies provided by law, including, but not limited to, the common law right of privacy.)
9 Ainsworth v. Century Supply Co., 295 Ill.Ap.3d 644, 693 N.E.2d 510 (1998). Accord, Dwyer v. American Express Co., 273 Ill.App.3d 742, 652 N.E.2d 1351 (1995).
10 J. McCarthy, 1 THE RIGHTS OF PUBLICITY AND PRIVACY, Sec. 1.5 (D), at 1-26 (1998)
11 114 USPQ 314 (Pa.Ct.Common Pleas 1957)
12 See, e.g., Bowling v. Missionary Servants, 972 F.2d 346 (6th Cir.1992) (unpublished) (3-year-old child entitled to $100 damages for modeling fee due to unpermitted use of his photo).
13 The law presumes damages exist for every infringment of a right, even if only nominal damages are allowed. Ainsworth v. Century Supply Co., 295 Ill.App.3d 644, 693 N.E.2d 510 (1998) (right of publicity)
14 Douglass v. Hustler Magazine, 769 F.2d 1128, 1138 (7th Cir.1985)
15 978 F.2d 1093 (9th Cir.1992)
16 Ventura v. Titan Sports, 725 F.3d 725 (8th Cir.1995). Al Capone’s widow unsuccessfully tried an unjust enrichment theory on the ground relatives of a deceased could not sue on an appropriation theory of privacy relating solely to the deceased. Maritote v. Desilu Productions, Inc., 345 F.2d 418, 419(7th Cir. 1965).
17 765 ILCS sec. 1075/45 (1998)
18 For Illinois, see Eick v. Perk Dog Food Co., 347 Ill.App.293, 106 N.E.2d 742(1952) Accord, Bradley v. Cowles Magazine, 26 Ill.2d App.331, 68 N.E.2d 64(1966), and Bushers v. Graceland Cemetery Ass’n., 171 F.Supp.205 (E.D.Ill.1958). Outside of Illinois see,e.g., Olan Mills, Inc. v. Dodd, 553 S.W.2d 22(Ark.S.Ct.1962) (I can’t go out on the street-I am embarrassed. I have lost weight. I can’t sleep"); McAndrews v. Roy, 131 So. 2d 256(La.Ct.App. 1961) (plaintiff called "muscle-brain," "muscle-head," and "muscle-bound" and everything but his right name); and Fairfield v. American Photocopy Equip. Col, 158 Cal.App. 53, 322 P.2d 93 (1958) ("I felt humiliated, embarrassed, chagrined.")
19 Lugois v. Universal Pictures, 160 Cal.Rptr. 323, 603 p. 2d 425, 444(Bird,C.j.:dissenting).
20 347 Ill.App293, 106 N.E.2d 742 (1952).
21 106 N.E.2d at 743
765 ILCS sec. 1075/60(1998).
Michael J. Polelle is a Professor at John Marshall Law School. He is the Co-Author of Illinois Tort Law and is a frequent author and lecturer on torts and evidence. He may be reached at firstname.lastname@example.org.