This page covers legal information specific to the State of Illinois. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.
Illinois' right of publicity statute, the Right of Publicity Act, is codified at 765 ILCS 1075. You should familiarize yourself with the statute, especially sections 5 (which defines the key terms of the statute) and 35 (which lists the primary exceptions to the right of publicity). Illinois no longer recognizes a distinct common law right of publicity.
What is protected?
The Right of Publicity Act, at § 30, protects "an individual's identity."
Section 5 defines the key terms. An "individual" is defined as a "natural person," meaning that the Right of Publicity act does not protect the names of businesses or other legal entities.
The statute defines "identity" broadly:
"Identity" means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.
At least one federal district court has noted that the Act's definition of "identity" is broad and promotes "an expansive approach" when deciding what counts as identity. Muzikowski v. Paramount Pictures Corp, 2003 WL 22872117, at *6 (N.D. Ill., Dec. 3, 2003) (not reported). While there does not appear to be appellate case law on the subject, the statute's definition of "identity" suggests a two-step approach:
- Did the defendant use an "attribute" of the plaintiff?
- Would that attribute "identify" the plaintiff to an ordinary, reasonable person?
Section 5 of the Act also defines "name," one of the listed attributes that can constitute "identity." The statute protects an individual's "actual name," as well as any "other name by which an individual is known that is intended to identify that individual." This would appear to provide protection to assumed names, stage names, and the like, as long as the individual is sufficiently "known" by that name.
Rights of deceased persons
Section 30(b) of the Right of Publicity Act protects an individual's identity for 50 years after death, if the person died after the date the statute went into effect. The Right of Publicity Act went into effect on January 1, 1999. Illinois' earlier common law right of publicity did not provide protection after death. Carlson v. Del Pub. Co., 213 N.E. 2d 39 (Ill. App. Ct. 1965). Therefore, the identities of people who died before 1999 are unprotected in Illinois.
What constitutes a violation?
The Right of Publicity Act protects against unauthorized "commercial" uses of an individual's identity. Section 5 defines use for a "commercial purpose" as a "public use" for the purpose of: (i) offering the sale of products, services, etc. (ii) advertising or promoting products, services, etc.; or (iii) fundraising.
Use of a person's identity in private documents, even if used for a commercial purpose, is not "public" and is not a violation of the Act. See MetLife v. Seldman, 734 F. Supp. 2d 304, 311-12 (E.D.N.Y. 2010).
Most of what qualifies as a "commercial" use is intuitive. Using a person's picture on product packaging, Leto v. RCA Corp., 341 F. Supp. 2d 1001 (N.D.Ill. 2004), and using a person's image to falsely imply endorsement of a product, Trudeau v. Lanoue, 2006 WL 516579 (N.D. Ill. March 2, 2006) (not reported) have both been found to be "commercial." If the use is tied to advertising, it risks right-of-publicity liability.One federal district court has noted the differences between protection for commercial and non-commercial speech under the First Amendment, in connection with the question of whether First Amendment protection for non-commercial speech would trump the Right of Publicity Act. Jordan v. Jewel Food Stores, Inc., 2012 WL 512584 (N.D. Ill. February 15, 2012). It is not clear from the decision, however, whether the judge connected the statutory definition of commercial use under the Right of Publicity Act to the constitutional concept of commercial speech.
Exceptions and the First Amendment
The Right of Publicity Act contains a number of specified exceptions designed to protect First Amendment interests. Specifically, § 35(b) lists five exceptions:
- Using a person's identity to portray that person in a work of art (such as a painting, play, movie, song, etc.) is protected, as long as the work of art is not "in and of itself a commercial advertisement."
- Uses for non-commercial purposes are exempt. This exception includes news reports, sports, public affairs, and political campaigns.
- The statute allows use of an author's name in connection with her work (but only if the use is truthful).
- Advertisements for any of the above exceptions are also exempt. Therefore, even though an advertisement is "commercial," if it is advertising an exempted use (such as a billboard for a protected film) there is no violation of the right of publicity.
- There is also an exception for professional photographers, to allow them to display their work at their place of business.
Courts have described these various exceptions as important protections for First Amendment rights. See, e.g., Collier v. Murphy, 2003 WL 1606637 (N.D. Ill. March 26, 2003) (not reported). However, these exceptions do not define the limit of First Amendment protection; conduct that falls outside of the statutory exceptions may still be constitutionally protected. In Christianson v. Henry Holt and Co., 2007 WL 2680822 (C.D. Ill. June 29, 2007) (not reported), the defendants used a picture of the plaintiff on a book jacket, even though the plaintiff was not a subject of the book. The district court ruled that the defendants' conduct did not fall under the first or second exceptions listed above, because the plaintiff was not portrayed, or even mentioned, in the book. But the court then stated that "the fact that Plaintiff's claim does not fit within one of the elucidated exception[s] to the [Right of Publicity Act] does not end the inquiry," and went on to consider whether the use of the plaintiff's image was protected by the First Amendment as an expressive choice in the context of the book. Although the court eventually ruled against the defendants on this issue, finding no link between the subject of the book and the plaintiff's picture, the court's analysis indicates that a separate First Amendment defense may exist for some expressive uses of an individual's image.
Section 40 of the Act provides from monetary relief. A victorious plaintiff can collect both their actual damages and the defendant's profits that result from the violation. The minimum monetary award is $1,000. A plaintiff can claim both "personal" damages and "commercial" damages. See Villalovos v. Sundance Associates, 31 Media L. Rep. 1274, 2003 WL 115243, at *5 (N.D. Ill. January 13, 2003). Punitive damages are also available for willful violations.
Section 50 allows courts to issue "appropriate" injunctive relief. The court can also, in its discretion, award the winning side attorney's fees and court costs. See § 55.
Statute of limitations
Right of publicity claims under the Illinois statute are subject to a one-year statute of limitations. Blair v. Nevada Landing P'ship, 859 N.E.2d 1188, 1192 (Ill. App. 2d Dist. 2006).