Illinois: Statutory Civil Law

  1. Illinois Constitution – Article 1, Section 6

    1. Introduction

      Although the Illinois Constitution recognizes a right to privacy, the right only protects individuals from invasions of privacy by government authorities, aimed primarily at protecting citizens against unreasonable search and seizure. Because there is no constitutional right of privacy between private citizens, a WMC victim would not be able to bring a constitutional right to privacy claim against a private citizen perpetrator.

    2. Text of Statute(s)

      The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.

    3. Cases

      1. Kelly v. Mercoid Corp., 776 F. Supp. 1246 (1991)

        • Procedural Posture: Case removed to federal court by the defendant based on the presence of federal and constitutional claims.

        • Law: Illinois Constitution Article 1 § 6

        • Facts: An employee filed suit after being fired for refusing to submit to a mandatory urinalysis test imposed on employees who handle mercury as part of their job. The test was aimed at monitoring and detecting exposure to mercury. The employee alleged that such requirement constituted an unreasonable search and seizure in violation of the Fourth Amendment under the U.S. Constitution and Article 1 § 6 of the Illinois Constitution.

        • Outcome: Both the Fourth Amendment and Article I, Section 6 of the Illinois Constitution protect against governmental action only and do not provide a remedy for claims by an individual citizen against another individual citizen.1

    4. Practice Pointers

      While not relevant to invasions of privacy committed by individual citizens against other individuals, reference to the constitutionally recognized right of privacy may be helpful in supporting an expectation of privacy to the extent a litigant decides to incorporate public policy arguments into litigation.

    1. Kelly v. Mercoid Corp., 776 F. Supp. 1246, 1256 (1991).
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  2. Right of Publicity Act – 765 ILCS § 1075/1 et seq.

    1. Introduction

      The Right of Publicity Act recognizes the right to control and choose how to use one’s own identity for commercial purposes. Thus, a cause of action for violation of a statutory right to publicity is limited to non-consensual use of one’s identity for commercial purposes.

      The Right of Publicity Act, effective January 1, 1999, replaced the common-law tort of appropriation of likeness. However, the Act does not affect the other three common-law privacy torts: intrusion upon seclusion, public disclosure of private facts, and false light.1 This Act clearly and specifically requires commercial use of one’s identity and the plaintiff must prove that profits earned by the defendant are directly attributable to the unauthorized use of the plaintiff’s identity or image.2

      Notably, a claim alleging violation of this Act does not require a plaintiff to show damages or injury provided the plaintiff is able to prove the amount of profits earned by the defendant as a result of the unauthorized use.3

    2. Text of Statute(s)

      § 5. Definitions.

      As used in this Act:

      “Commercial purpose” means the public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.

      “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.

      “Individual” means a living or deceased natural person, regardless of whether the identity of that individual has been used for a commercial purpose during the individual’s lifetime.

      “Juristic person” means a partnership, trust, estate, corporation, unincorporated association, or other organization capable of suing and being sued in a court of law.

      “Name” means the actual name or other name by which an individual is known that is intended to identify that individual.

      “Person” means a natural or juristic person.

      “Work of Fine Art” means (i) a visual rendition including, but not limited to, a painting, drawing, sculpture, mosaic, videotape, or photograph; (ii) a work of calligraphy; (iii) a work of graphic art including, but not limited to, an etching, lithograph, serigraph, or offset print; (iv) a craft work in materials including, but not limited to, clay, textile, fiber, wood, metal, plastic, or glass; or (v) a work in mixed media including, but not limited to, a collage, assemblage, or work consisting of any combination of items (i) through (iv).

      § 10. Recognition of right of publicity.

      The right to control and to choose whether and how to use an individual’s identity for commercial purposes is recognized as each individual’s right of publicity.

      § 15. Transferability, descendability, and divisibility.

      The rights under this Act are property rights that are freely transferable in whole or in part to any person either by written transfer, including but not limited to wills and trusts, or by intestate succession only to an individual’s spouse, parents, children, and grandchildren, except that the rights under this Act are not subject to levy or attachment and may not be the subject of a security interest. Nothing in this Section limits the ability of any party to levy, attach, or obtain a security interest in the proceeds of the rights under this Act or the proceeds of the exercise of those rights.

      § 20. Enforcement of rights and remedies.

      (a) The rights and remedies set forth in this Act may be exercised and enforced by:

      1. an individual or his or her authorized representative;

      2. a person to whom the recognized rights have been transferred by written transfer under Section 15 of this Act; or

      3. after the death of an individual who has not transferred the recognized rights by written transfer under this Act, any person or persons who possesses an interest in those rights.

      (b) Each person described in paragraph (3) of subsection (a) shall make a proportional accounting to, and shall act at all times in good faith with respect to, any other person in whom the rights being enforced have vested.

      § 25. Termination of rights of deceased individual.

      (a) The rights set forth in this Act terminate if:

      1. a deceased individual has not transferred his or her rights in writing under Section 15 of this Act; and

      2. the individual has no living spouse, parents, children, or grandchildren.

      § 30. Limitations regarding use of an individual’s identity.

      (a) A person may not use an individual’s identity for commercial purposes during the individual’s lifetime without having obtained previous written consent from the appropriate person or persons specified in Section 20 of this Act or their authorized representative.

      (b) If an individual’s death occurs after the effective date of this Act, a person may not use that individual’s identity for commercial purposes for 50 years after the date of the individual’s death without having obtained previous written consent from the appropriate person or persons specified in Section 20 of this Act.

      § 40. Violations; monetary relief.

      (a) A person who violates Section 30 of this Act may be liable for either of the following, whichever is greater:

      1. actual damages, profits derived from the unauthorized use, or both; or

      2. $1,000.

      (b) Punitive damages may be awarded against a person found to have willfully violated Section 30 of this Act.

      § 45. Establishment of profits.

      (a) In establishing profits under paragraph (1) of subsection (a) of Section 40 of this Act:

      1. the plaintiff is required to prove the damages or gross revenue attributable to the unauthorized use; and

      2. the defendant is required to prove properly deductible expenses.

      § 50. Injunctive relief.

      Upon a showing of cause as required by Article XI of the Code of Civil Procedure for the issuance of injunctive relief, the court may issue such temporary restraining orders, preliminary injunctions, and permanent injunctions as may be appropriate under this Act.

      § 55. Attorney’s fees; costs.

      The court may award to the prevailing party reasonable attorney’s fees, costs, and expenses relating to an action under this Act.

      § 60. Rights and remedies.

      The rights and remedies provided for in this Act are meant to supplant those available under the common law as of the effective date of this Act, but do not affect an individual’s common law rights as they existed before the effective date of this Act. Except for the common law right of publicity, the rights and remedies provided under this Act are supplemental to any other rights and remedies provided by law including, but not limited to, the common law right of privacy.

    3. Cases

      1. Brown v. ACMI Pop Div., 873 N.E. 2d 954 (Ill. App. 2007)

        • Procedural Posture: Defendant appeals from the trial court’s denial of its motion to dismiss.

        • Law: Right of Publicity Act – 765 ILCS § 1075/1

        • Facts: Late singer James Brown and 2 others filed suit against Corbis, a company that licenses copyrights of stock photographs and images, alleging infringement on Brown’s right of publicity through Corbis’ unauthorized commercial use of the singer’s image on its website. Brown’s images are displayed in the “professional use” section of Corbis’ website, which contains a catalog of “rights managed” images—namely, images that require additional releases and permissions.

        • Outcome: The court held that factual disputes regarding the nature of Corbis’ business and whether the company’s use of Brown’s image is an improper commercial use constitute a proper basis for denying a motion to dismiss.4

        • Special Note: This case theoretically leaves open a cause of action against an entity that displays photographs for the purpose of sale or licensing the photographs themselves without obtaining the underlying publicity rights, but because the court held only that it could not decide the underlying factual issue as to what Corbis is doing, it may not be very persuasive. Moreover, a federal court in Illinois has found such a cause of action barred by Illinois law (rejecting Brown as unpersuasive).5

      2. Blair v. Nevada Landing P’ship, 859 N.E. 2d 1188 (Ill. App. 2006)

        • Procedural Posture: The plaintiff appeals an order of summary judgment on statute of limitations grounds.

        • Law: Right of Publicity Act and the Uniform Single Publication Act

        • Facts: A former employee of a casino restaurant filed suit against his former employer for the ongoing use of his image for promotional purposes after the employee resigned. The plaintiff had been compensated for his participation in the photo shoot and had consented to the use of his image for promotional purposes. The image was used in various media, including brochures, menus, billboards, calendars and postcards in the casino gift shop, and on the company’s website beginning in mid–1995 and continuing up until the plaintiff filed suit in September 2004. Plaintiff voluntarily left his employment in 1999.

        • Outcome: The court held that the claims were barred by the one–year statute of limitations because the publication of a single image in various media for the same purpose (advertising the restaurant within the casino) constitutes a “single overt act,” and therefore does not qualify for the “continuing violation” exception to the general rule that accrual begins at the time the plaintiff’s interests were invaded. The court stated that “a continuing violation is occasioned by continuing unlawful acts and conduct, not continual ill effects from an initial violation.”6

        • Special Notes: In this case a single image was used for the same purpose across multiple media. Had the casino used different images from the same photo shoot, each image would accrue according to the date it was first published. The court also noted that plaintiffs’ consent may have been revoked after he left (either overtly or by operation of law), but declined to analyze the issue because suit would still have been untimely.

    4. Practice Pointers

      • The statute of limitations is one year from the date the cause of action accrued.7 Under the continuing violation exception “the limitations period would not begin to run until the date of the last injury, or the date the tortious acts cease.”8

      • “Subsequent distribution of existing copies of an original publication neither creates a new cause of action, nor tolls the statute of limitations.”9

    1. 765 ILCS § 1075/60.
    2. Trannel v. Prairie Ridge Media, Inc., 987 N.E. 2d 923, 932 (2013); ILCS 1075/40(a).
    3. 765 ILCS § 1075/45.
    4. Brown v. ACMI Pop Div., 873 N.E. 2d 954, 962 (2007).
    5. Thompson v. Getty Images, Inc., 2013 WL 3321612, at *3-4, 41 Media L. Rep. 2217 (July 1, 2013) (granting motion to dismiss brought by Getty Images on similar claim).
    6. Blair v. Nevada Landing P’ship, 859 N.E. 2d 1188, 1193, (2006).
    7. 735 ILCS § 5/13-201.
    8. Blair, 859 N.E. 2d at 1193.
    9. Id. at 1193, citing Founding Church of Scientology, 60 Ill. App. 3d at 589, 18 Ill.Dec. 5, 377 N.E.2d 158.
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  3. Uniform Single Publication Act – 740 ILCS 165/1

    1. Introduction

      Under the Uniform Single Publication Act, a victim of non–consensual publication of intimate images will not have multiple causes of action based on the multiple or ongoing publication of a single image or video. For there to be multiple causes of action, the images must be different from one another. However, the Blair court (discussed above) notes that republication of the same image to a different audience may create a new cause of action.1

    2. Text of Statute(s)

      § 1. Remedy; Damages.

      No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

      § 2. Res judicata.

      A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication or exhibition or utterance as described in Section 1 shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication or exhibition or utterance.

      § 3. Interpretation.

      This Act shall be so interpreted as to effectuate its purpose to make uniform the law of those states or jurisdictions which enact it.

      § 4. Citation.

      This Act may be cited as the Uniform Single Publication Act.

      § 5. Retroactive effect.

      This Act shall not be retroactive as to causes of action existing on its effective date.

    3. Cases

      1. Weber v. Cueto, 253 Ill. App. 3d 509 (1993)

        • Procedural Posture: In a defamation action, plaintiff appeals an order vacating a previous order allowing plaintiff leave to file a second amended complaint. Plaintiff had filed the first-amended complaint three years after filing the original complaint, and after the statute of limitations for libel had run.

        • Law: Uniform Single Publication Act; defamation

        • Facts: Plaintiff filed an original complaint for defamation alleging publication of a libelous letter to certain public authorities. Three years later, Plaintiff filed a first-amended complaint alleging distribution of the same libelous letter to various newspapers. The court ruled that the publication to the public authorities listed in the original complaint was privileged. The primary issue is whether the first–amended complaint, which was filed after the statute of limitations had run, “related–back” to the date of filing of the original complaint.

        • Outcome: Affirming the lower court, the court held that the first–amended complaint did not “relate–back”; to the original complaint. The court explained that the publication of the letter to the newspapers was a separate cause of action from its publication to the public authorities because it “required proof of a different factual matter.”2

        • Special Notes: Although the statute’s purpose is to prohibit multiple causes of action for the same means of publication, the plaintiff relied on the statute’s language to argue that the publication to the newspapers was the same cause of action as the publication to the authorities.

    4. Practice Pointers

      Altered images or republication of the same images to legally distinct audiences likely qualify as distinct causes of action.

    1. Id. at 1194 (discussing Lehman v. Discovery Communications, Inc., 332 F.Supp. 2d 534, 539 (E.D.N.Y. 2004).
    2. Weber v. Cueto, 253 Ill. App. 3d 509, 513 (1993).
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  4. Discovery Before Suit to Identify Responsible Persons and Entities – IL R S CT Rule 224

    1. Introduction

      Although WMC victims frequently know their harasser, many victims are subjected to harassment by multiple individuals, some of whom may participate in the conduct anonymously. Rule 224 is a discovery rule allowing plaintiffs, with leave of the court, to compel the discovery of the identity of anonymous parties against whom the plaintiff may have a claim. Through Rule 224, victims may be permitted to compel the internet service provider or social media host to disclose the identity of the anonymous harasser so that the victim may bring suit against the perpetrator.

    2. Text of Statute(s)

      (1) Petition.

      1. A person or entity who wishes to engage in discovery for the sole purpose of ascertaining the identity of one who may be responsible in damages may file an independent action for such discovery.

      2. The action for discovery shall be initiated by the filing of a verified petition in the circuit court of the county in which the action or proceeding might be brought or in which one or more of the persons or entities from whom discovery is sought resides. The petition shall be brought in the name of the petitioner and shall name as respondents the persons or entities from whom discovery is sought and shall set forth: (A) the reason the proposed discovery is necessary and (B) the nature of the discovery sought and shall ask for an order authorizing the petitioner to obtain such discovery. The order allowing the petition will limit discovery to the identification of responsible persons and entities and where a deposition is sought will specify the name and address of each person to be examined, if known, or, if unknown, information sufficient to identify each person and the time and place of the deposition.

    3. Cases

      1. Maxon v. Ottowa Pub. Co., 402 Ill. App. 3d 704 (2010)

        • Procedural Posture: Plaintiffs appeal the trial court’s denial of their petition to compel disclosure of the identity of online posters of allegedly defamatory comments on the defendant’s website.

        • Law: Illinois Supreme Court Rule 224

        • Facts: Multiple anonymous internet posters made allegedly defamatory statements regarding the plaintiffs, owners of a Bed & Breakfast, following an article concerning a proposed ordinance to allow B&Bs to operate in residential areas.

        • Outcome: Noting that defamatory speech is not constitutionally protected, the court held that because the petition stated with particularity facts that would establish a cause of action for defamation, and the unidentified person is the one who is responsible in damages to the petitioner, disclosure of the anonymous person is warranted.1

    4. Practice Pointers

      In defamation cases, the plaintiff must also plead facts to establish that the allegedly defamatory statements are not constitutionally protected before a court will grant discovery under Rule 224. An example of constitutionally protected speech that is relevant to WMC victims is speech that conveys a mere opinion, and could not be construed as factual.

    1. Maxon v. Ottowa Pub. Co., 402 Ill. App. 3d 704, 711 (2010).
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