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.
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)
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)