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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

Right of Publicity Laws: Illinois

by Michael G. Kelber and Katherine Dennis Nye, Neal, Gerber & Eisenberg LLP, with Practical Law Intellectual Property & Technology

Law stated as of 28 Jan 2019 • Illinois, United States

A Q&A guide to Illinois right of publicity laws. This Q&A addresses the types of persons and aspects of identity protected by the
right of publicity, remedies for violations of the right, defenses to right of publicity claims, personal jurisdiction and choice of law
considerations, and transfer and licensing of the right. Answers to questions can be compared across a number of jurisdictions
(see Right of Publicity Laws: State Q&A Tool).

Contents

Overview of State Right of Publicity Law

Persons Protected

Protected Aspects of Identity

Registration

Violations of the Right of Publicity

Remedies

Exemptions and Defenses

Personal Jurisdiction and Choice of Law

Transfers, Licenses, and Waivers

Other Significant Legislation and Case Law

Overview of State Right of Publicity Law

1. Does your state recognize the right of publicity? If so, is the right of publicity recognized by statute or common
law, or both?

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

Statute
Illinois recognizes the right of publicity as embodied in the Illinois Right of Publicity Act (IRPA) (765 ILCS 1075/1 to 1075/60).

Common Law
As of January 1, 1999, the IRPA explicitly supplanted the common law right of publicity and the common law appropriation of
privacy tort, but the IRPA does not affect common law rights existing before its effective date (765 ILCS 1075/60).

2. Does your state recognize the appropriation invasion of privacy tort? If your state recognizes both a right of
publicity and an appropriation invasion of privacy tort, please describe any significant distinctions between the
two types of claims.

The Illinois Right of Publicity Act supplanted the common law appropriation invasion of privacy tort but did not affect other common
law privacy torts (765 ILCS 1075/60; see also Blair v. Nevada Landing P'ship., 859 N.E.2d 1188, 1192 (Ill. 2006)).

Persons Protected

3. What types of persons are protected by each law identified in Question 1?

Statute
The Illinois Right of Publicity Act (IRPA) protects natural living persons (765 ILCS 1075/30(a)).

Deceased Persons (Postmortem Rights)

The IRPA protects the right of publicity of deceased individuals for 50 years after the date of death (765 ILCS 1075/30(b); see
also Question 4).

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

Corporations and Other Entities

Corporations, musical groups, or other entities that are not natural persons do not have rights under the IRPA (765 ILCS 1075/5
to 1075/10).

4. If your state recognizes a postmortem right of publicity:

• What is the duration of the postmortem right?

• Is there an exploitation requirement for maintenance of the postmortem right?

Statute

Duration
For persons who died after January 1, 1999, the effective date of the Illinois Right of Publicity Act (IRPA), postmortem rights of
publicity exist for 50 years after the date of death (765 ILCS 1075/30(b)).

However, rights of publicity terminate after death if the deceased individual both:

• Has not transferred his rights of publicity in writing.

• Has no living spouse, parents, children, or grandchildren.

(765 ILCS 1075/25.)

Exploitation Requirement
There is no requirement that the postmortem right of publicity be exploited to be maintained under the IRPA.

Common Law
As of January 1, 1999, the IRPA explicitly supplanted the common law right of publicity and the common law appropriation of
privacy tort, but the IRPA does not affect common law rights existing before its effective date (765 ILCS 1075/60).

5. Is right of publicity protection in your state subject to any requirement that the person's identity have commercial
value?

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

Commercial value is not required for right of publicity protection under the Illinois Right of Publicity Act (Villalovos v. Sundance
Assocs., 2003 WL 115243 at *5 (N.D. Ill. 2003)).

6. If your state recognizes a postmortem right of publicity, is postmortem protection subject to any lifetime
exploitation requirement?

Statute
There is no statutory requirement of lifetime exploitation for postmortem protection under the Illinois Right of Publicity Act.

Common Law
As of January 1, 1999, the IRPA explicitly supplanted the common law right of publicity and the common law appropriation of
privacy tort, but the IRPA does not affect common law rights existing before its effective date (765 ILCS 1075/60).

7. Are any classes of persons (for example, members of the Armed Services) given special right of publicity
protection in your state? If so, what is the nature of the protection?

There are no specially protected classes of persons under the Illinois Right of Publicity Act.

Protected Aspects of Identity

8. For each law identified in Question 1, please describe the aspects of a person's identity that are protected.

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

The Illinois Right of Publicity Act (IRPA) protects a person's "identity," which includes any attribute of an individual that serves to
identify that individual to an ordinary, reasonable viewer or listener including, but not limited to:

• Name.

• Signature.

• Photograph.

• Image.

• Likeness.

• Voice.

(765 ILCS 1075/5.)

Registration

9. Does any law identified in Question 1 require or otherwise permit registration of the right of publicity, including
postmortem rights if recognized in your state? If so, please describe the:

• Benefits of registration and any adverse consequences for failing to register.

• Registration requirements and procedure.

The Illinois Right of Publicity Act does not offer or otherwise provide for registration of the right of publicity.

Violations of the Right of Publicity

10. For each law identified in Question 1, what are the elements of a civil claim?

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

Statute
Under the Illinois Right of Publicity Act (IRPA) a person may not use an individual's identity for commercial purposes during the
individual's lifetime without written consent (765 ILCS 1075/30(a)).

Common Law
As of January 1, 1999, the IRPA explicitly supplanted the common law right of publicity and the common law appropriation of
privacy tort, but the IRPA does not affect common law rights existing before its effective date (765 ILCS 1075/60).

11. Please describe any tests for identifiability provided by statute or case law in your state.

Statute
The test for identifiability under the Illinois Right of Publicity Act is whether the attribute or attributes of the individual that were
used would serve to identify the individual to an ordinary, reasonable viewer or listener (765 ILCS 1075/5).

Common Law
As of January 1, 1999, the IRPA explicitly supplanted the common law right of publicity and the common law appropriation of
privacy tort, but the IRPA does not affect common law rights existing before its effective date (765 ILCS 1075/60).

Remedies

12. What are the available remedies for a civil violation of each law identified in Question 1?

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

Statute

Injunctive Relief
The following injunctive remedies are available under the Illinois Right of Publicity Act (IRPA):

• Temporary restraining orders.

• Preliminary injunctions.

• Permanent injunctions.

(765 ILCS 1075/50.)

Compensatory Damages and Profits

Actual damages, profits derived from the unauthorized use, or both, are available under the IRPA (765 ILCS. 1075/40). In
establishing profits, the plaintiff must prove the damages or gross revenue attributable to the unauthorized use and the defendant
may then prove properly deductible expenses (765 ILCS 1075/45). Actual damages may include damages for mental suffering
and distress (Petty v. Chrysler Corp., 799 N.E.2d 432, 443 (Ill. 2003)).

Statutory Damages
Statutory damages of $1,000 are available under the IRPA if compensatory damages cannot be established or are less than
$1,000 (765 ILCS 1075/40). Courts award the $1,000 figure instead of total compensatory damages and not on a per-occurrence
basis (see Trannel v. Prairie Ridge Media, Inc., 987 N.E.2d 923 (Ill. App. Ct. 2013)).

Punitive Damages
Courts may award punitive damages for "willful" violations of the IRPA (765 ILCS 1075/40(b)). Under Illinois law, including the
IRPA, punitive damages are disfavored and are to be awarded only on a showing of gross fraud, breach of trust, malice, or
willfulness. To justify punitive damages:

• The defendant's conduct must involve outrage similar to that found in a crime.

• The plaintiff must introduce some evidence of intent to injure.

(Doe v. Templeton, 2004 WL 1882436, at *5 (N.D. Ill. August 6, 2004).)

Attorneys' Fees
The IRPA makes available reasonable attorneys' fees, expenses, and costs (765 ILCS 1075/55).

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

Common Law
As of January 1, 1999, the IRPA explicitly supplanted the common law right of publicity and the common law appropriation of
privacy tort, but the IRPA does not affect common law rights existing before its effective date (765 ILCS 1075/60).

13. Are there any criminal penalties in your state for violations of the right of publicity?

There is no criminal penalty in Illinois for violation of the right of publicity.

Exemptions and Defenses

14. For each law identified in Question 1, what are the key defenses to a civil claim?

Consent
Written consent is a defense to a civil claim under the Illinois Right of Publicity Act (IRPA) (765 ILCS 1075/30).

Statutory Exemptions and Defenses

The IRPA exempts the use of:

• An individual's identity in:

• a live performance;

• a single and original work of fine art (including painting, sculpture, videotape, and photograph);

• play;

• book;

• article;

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

• musical work;

• film;

• radio;

• television; or

• audio, visual, or audiovisual work that is not otherwise a commercial advertisement for other goods or services.

• An individual's identity for non-commercial purposes, including news, public affairs, political campaigns, or sports
broadcasts.

• An individual's name in truthfully identifying the individual as the author or performer in a particular work.

• An individual's identity to promote a use described above.

• A photograph or video by a professional photographer to exhibit in the photographer's place of business or portfolio,
unless the person in the photograph objects in writing.

(765 ILCS 1075/35(b).)

Traditional Equitable Defenses

Traditional equitable defenses may be available for right of publicity claims, but Illinois case law is not well-developed on this point.

15. For each law identified in Question 1:

• What is the statute of limitations for a civil claim?

• How is the statute of limitations calculated?

Statute of Limitations
The Illinois Right of Publicity Act (IRPA) does not specify the statute of limitations for claims brought under the act. Torts in
Illinois generally have a five-year statute of limitations (735 ILCS 5/13-205). Before the enactment of IRPA, Illinois common law
appropriation had a one-year statute of limitations. An Illinois appellate court has also held that the statute of limitations under
the IRPA is one year. (Blair, 859 N.E.2d at 1192.)

However, the Illinois Supreme Court has not ruled on this issue and the Seventh Circuit has indicated that it believes the question
of whether a one-year or five-year limitation should apply is unresolved (Martin v. Living Essentials, LLC, 2016 WL 3619372,
at *2-3 (7th Cir. June 30, 2016)).

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

Calculation
Illinois follows the single publication rule. Therefore, the statute of limitations begins to run on the date of first publication and
the dissemination of that same item afterwards does not give rise to a new cause of action nor refresh the running of the statute
of limitations. However, a re-publication can constitute a new cause of action if it alters the publication to reach a new audience
or promote a different product. (Blair, 859 N.E.2d at 1193-94.)

Personal Jurisdiction and Choice of Law

16. Please describe any statutory requirements or significant case law involving right of publicity claims
concerning:

• Personal Jurisdiction.

• Choice of Law.

Personal Jurisdiction
There are no Illinois personal jurisdiction statutory provisions that directly deal with the right of publicity. Likewise, Illinois case
law is not well-developed on this point. Generally, however, Illinois law allows the exercise of personal jurisdiction over non-
resident defendants if doing so comports with the due process provision of the US Constitution. For example, in Elgin Dairy
Foods, Inc. v. Savant Software, Inc., the court found that the Arizona resident defendants doing business in Illinois were subject
to personal jurisdiction in Illinois in a case involving a claim under the Illinois Right of Publicity Act (2005 WL 2266598, at *3-6
(N.D. Ill. Sept. 14, 2005)).

Choice of Law
There are no Illinois choice of law statutory provisions that directly deal with the right of publicity, and Illinois case law is not
well-developed on this point.

Transfers, Licenses, and Waivers

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

17. Is the right of publicity a transferable (assignable) right in your state?

Under the Illinois Right of Publicity Act (IRPA), the right of publicity is a property right that is, in whole or in part, freely:

• Transferrable.

• Descendible.

• Divisible.

(765 ILCS 1075/15.)

18. Please describe any specific restrictions on or requirements for valid transfers (if the right is transferable),
licenses, or waivers of the right of publicity in your state, including:

• Whether transfers, licenses, and waivers must be made in writing.

• Requirements for obtaining consent from a minor.

Form of Agreement
The Illinois Right of Privacy Act (IRPA) provides that transfers of the right of publicity must be made either:

• In writing.

• By intestate succession to an individual's:

• spouse;

• parents;

• children; or

• grandchildren.

(765 ILCS 1075/15.)

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Right of Publicity Laws: Illinois, Practical Law State Q&A 9-517-0200 (2019)

Consent from a Minor

There are no statutory provisions regarding any special requirements for a minor to waive his right of publicity, and Illinois case
law is not well-developed on this point.

19. If your state recognizes a postmortem right, are there any statutory or common law rules for ownership or
transfer of the right?

Under the Illinois Right of Privacy Act, an individual's right of publicity survives the death of the individual for 50 years only in
the following instances:

• The individual transferred his rights in writing before death.

• The individual's rights passed by intestate succession to his:

• spouse;

• parents;

• children; or

• grandchildren.

(765 ILCS 1075/20.)

Other Significant Legislation and Case Law

20. Please briefly describe any other significant right of publicity statutes, pending legislation, and case law in
your state not otherwise addressed in this survey.

The Seventh Circuit has held that the Copyright Act does not preempt the Illinois Right of Publicity Act (IRPA) because the
IRPA protects the identity of a person, rather than any particular tangible picture or photograph (Toney v. L'Oreal, 406 F.3d 905,
910 (7th Cir. 2005)).

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