Illinois

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. 

Statute 

YES

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.”

Common Law - Right of Publicity 

NO

The Illinois Right of Publicity Act expressly preempts any common law right of publicity. 

765 ILCS 1075/60

Blair v. Nevada Landing Partnership, 859 N.E.2d 1188 (Ill. App. Ct. 2006)

Common Law - Right of Privacy-Appropriation Tort 

LIKELY NOT

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.

Post-Mortem Right 

YES

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).

765 ILCS 1075/30(b)

Limits on Right 
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?

NO

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.

765 ILCS §§ 1075/5

Villalovos v. Sundance Assocs., 2003 WL 115243 (N.D. Ill. 2003)

Does the law protect persona?

LIKELY YES

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.

765 ILCS §§ 1075/5 & 10

Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?

UNCLEAR

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. 

765 ILCS §§ 1075/5 & 35

Doe v. Flava Works, Inc., 2014 WL 470638 (Ill. App. Ct. 2014)

Trannel v. Prairie Ridge Media, Inc., 987 N.E.2d 923 (Ill. App. Ct.  2013)

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)

Statutory Defenses 

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

765 ILCS § 1075/35

Trannel v. Prairie Ridge Media, Inc., 987 N.E.2d 923 (Ill. App. Ct.  2013)

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)

Wagner v. Fawcett Publications, 307 F.2d 409 (7th Cir. 1962)

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)

Other Commentary 

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)

 

 

Page last updated on: February 09, 2018

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