In 1999, Illinois passed a right of publicity statute that replaced the common law right of publicity, and seems to have also replaced the privacy-based tort of appropriation. The Illinois statute provides a post-mortem right for 50 years.
In 1999, Illinois passed the Right of Publicity Act that provides a cause of action for the unauthorized use of a person’s “identity” for a “commercial purpose.”
The law became effective on January 1, 1999. Consent must be demonstrated in writing. The right is freely transferable, descendible, and divisible. It is unclear from the plain language whether an identity-holder could continue to sue even after having transferred the right to a third-party. See 765 Ill. Stat. 1075/20. Statutory damages of $1,000 are available.
Common Law - Right of Publicity
The Illinois Right of Publicity Act expressly preempts any common law right of publicity.
Courts have continued to consider prior precedents under the common law to facilitate the interpretation of the statute.
Blair v. Nevada Landing Partnership, 859 N.E.2d 1188 (Ill. App. Ct. 2006)
Common Law - Right of Privacy-Appropriation Tort
Prior to enactment of the Illinois Right of Publicity Act, Illinois recognized a common law right of privacy that included the tort of appropriation of name and likeness. Several Appellate courts have held that the Right of Publicity Act now supersedes the common law tort of appropriation, but several have continued to treat it as a separate claim, at least where mental distress damages are sought.
Cases holding that statute supersedes: Trannel v. Praire Ridge Media, Inc., 987 N.E.2d 923 (Ill. App. Ct. 2013); Blair v. Nevada Landing Partnership, 859 N.E.2d 1188 (Ill. App. Ct. 2006); Maremont v. Susan Fredman Design Grp., Ltd., 772 F. Supp.2d 967 (N.D. Ill. 2011)
Cases holding that common law remains: Petty v. Chrysler Corp., 799 N.E.2d 432 (Ill. App. Ct. 2003)
The earliest cases to recognize the appropriation tort and right to privacy in Illinois are Leopold v. Levin, 259 N.E.2d 250 (Ill. 1970) & Eick v. Perk Dog Food Co., 106 N.E.2d 742 (Ill. App. Ct. 1952).
The Illinois Right of Publicity Act recognizes a post-mortem right for 50 years after an individual’s death, but only if the death occurred after the effective date of the Act (January 1, 1999).
Prior to the enactment of the Illinois Right of Publicity Act, the common law tort of appropriation did not recognize post-mortem rights. Carlson v. Del Pub. Co., 213 N.E.2d 39 (Ill. App. Ct. 1965); Maritote v. Desilu Prods., Inc., 345 F.2d 418 (7th Cir. 1965)
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
The Illinois Right of Publicity Act makes clear that a plaintiff need not have commercialized any aspect of his or her identity, and allows recovery for both personal and commercial injuries.
Some decisions under the prior common law required a showing that a person’s identity had a commercial value, or at least an “intrinsic value.” Dwyer v. Am. Exp. Co., 652 N.E.2d 1351 (Ill. App. Ct. 1995); Pesina v. Midway Mfg. Co., 948 F. Supp. 40 (N.D. Ill. 1996); Hooker v. Columbia Pictures Industries, Inc., 551 F. Supp. 1060 (N.D. Ill. 1982)
Does the law protect persona?
The Illinois statute applies to uses of a persons’ identity broadly. “Identity” is defined as “any attribute of an individual that serves to identify that individual.” Although the statute defines identity as including name, signature, photograph, image, likeness or voice, it does not limit claims to uses of those attributes.
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
The statute requires that the use be for a “commercial purpose.” The statute defines a commercial purpose as a “public use or holding out of an individual’s identity” in connection with the sale of products, merchandise, goods or services, or for advertising purposes in connection with the same, or for the purpose of fundraising. Courts thus far have been divided about whether commercial purpose is equivalent to commercial speech, narrower, or broader. The provision must also be read in conjunction with the exemption for noncommercial uses, including news and sports broadcasts, and for expressive works.
At least one district court has interpreted “commercial purpose” as narrower than commercial speech, and as requiring the promotion of a particular product or service. See Jordan v. Jewel Food Stores, Inc., 83 F. Supp.3d 761 (N.D. Ill. 2015). But others have held that it is broader, and even applies to uses in expressive works. The common law right of appropriation had been read more broadly as applying to noncommercial uses, including uses in fiction or magazines. Annerino v. Dell Pub. Co., 149 N.E.2d 761 (Ill. App. Ct. 1958); Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985)
Doe v. Flava Works, Inc., 2014 WL 470638 (Ill. App. Ct. 2014)
Schivarelli v. CBS, Inc., 776 N.E.2d 693 (Ill. App. Ct. 2002)
Jordan v. Jewel Food Stores, Inc., 83 F. Supp.3d 761 (N.D. Ill. 2015)
Additional cases raising this issue under the statute, include Thompson v. Getty Images, Inc., 2013 WL 3321612 (N.D. Ill. 2013); Abbs v. Lily’s Talent Agency, Inc., 2012 WL 6953496 (Ill. App. Ct. 2012); Brown v. ACMI Pop Div., 873 N.E.2d 954 (Ill. App. Ct. 2007).
The Illinois statute provides several exemptions from liability, including:
- Uses in live performances (to portray, describe or impersonate), single and original works of fine art, plays, books, articles, musical works, films, radio and television programs, other audio-visual works that do not constitute commercial advertisements, and related advertisements
- Uses for noncommercial purposes, including uses in news, public affairs, sports broadcasts, and political campaigns, and related advertisements
- Uses to truthfully identify authors or performers and related advertisements
- Displays by professional photographers of their work in their place of business
Schivarelli v. CBS, Inc., 776 N.E.2d 693 (Ill. App. Ct. 2002)
Best v. Berard, 776 F. Supp. 2d 752 (ND. Ill. 2011)
First Amendment Analysis
Under the common law tort of appropriation, Illinois courts have recognized First Amendment protections, particularly on the basis of newsworthiness and being about matters of public interest.
Leopold v. Levin, 259 N.E.2d 250 (Ill. 1970)
Annerino v. Dell Pub. Co., 149 N.E.2d 761 (Ill. App. Ct. 1958)
Best v. Berard, 776 F. Supp. 2d 752 (N.D. Ill. 2011)
Illinois sits in the Seventh Circuit which has considered First Amendment claims in the context of the misappropriation tort and Illinois’ common law right of publicity. In one notable case, the circuit held that the First Amendment is no obstacle to a misappropriation of image claim when a magazine published nude photographs without permission.
Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir. 1985)
Statute of Limitations: Several courts (both federal and state) have held that the statute of limitations for right of publicity claims under 765 ILCS 1075/1 et seq. is one year from the time the “cause of action accured,” pursuant to 735 ILCS 5/13-201
Blair v. Nevada Landing Partnership, 369 Ill. App.3d 318 (2006)
Copyright Preemption: Both the Seventh Circuit and Illinois Appellate courts have rejected copyright preemption defenses when the underlying copyrighted work was unauthorized by the plaintiff.
Toney v. L’Oreal USA, Inc., 406 F.3d 905 (7th Cir. 2005)
Brown v. ACMI Pop Div., 873 N.E.2d 954 (Ill. App. Ct. 2007)
Copyright preemption is complicated, and Illinois and the Seventh Circuit are no exception. The Seventh Circuit also has held that right of publicity claims are preempted by copyright law in the context of the broadcast of baseball games. Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n. For a more detailed understanding of copyright preemption and the right of publicity, the topic is covered in-depth in Chapter 8 of my book, The Right of Publicity: Privacy Reimagined for the Public World.