Dead Celebrities: Use of Another’s Likeness in Film Under The Illinois Right of Publicity Act
Whether the image, voice, likeness or identity of deceased celebrities or lesser-known individuals may be exploited in commercial endeavors turns on the analysis of the individual’s “right of publicity” or the ability of the individual’s heirs to control that right. Generally speaking, analysis of right of publicity law presents significant challenges since there is no unified federal statute on the subject and one must look to states’ laws for guidance. Even at the state level there are significant differences because the scope the rights varies from state to state and some states do not have any statutes on the subject at all.
Fortunately, Illinois is one of the states with a statute. The Illinois Right of Publicity Act grants an individual the “right to control and to choose whether and how to use an individual’s identity for commercial purposes.” Moreover, the Illinois Act provides that “[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.” The rights under this Illinois 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. As will become clear from this article, the key issue is whether the proposed use of a person’s identity is for “commercial purposes.”
Nature of the Rights at Issue.
As noted above, under Illinois law a person’s “identity” is protected by the Illinois Act. Identity is defined as “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.” Simply put, the right to publicity “is not merely “a particular picture or photograph” of an individual but “the very identity or persona of the plaintiff as a human being.”” “[T]here may be dozens or hundreds of photographs which fix certain moments” of a person’s life and each of these photographs might be separately owned by dozens or hundreds of photographers. In Contrast, “there is only one underlying ‘persona’ of a person protected by the right of publicity.”
It is important to note that that the purpose of the Illinois Act is to allow a person to control the commercial value of his or her identity. A “commercial purpose” is an element required by the Illinois Act. The phrase is defined to mean “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.”
The Act also sets forth specific uses that are excluded from the definition of “commercial purpose.” Section 35 of the Illinois Act specifically excludes the following: “(1) use of an individual’s identity in an attempt to portray, describe, or impersonate that individual in a live performance, a single and original work of fine art, play, book, article, musical work, film, radio, television, or other audio, visual, or audio-visual work, provided that the performance, work, play, book, article, or film does not constitute in and of itself a commercial advertisement for a product, merchandise, goods, or services (emphasis added); (2) use of an individual’s identity for non-commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign; and (3) use of an individual’s name in truthfully identifying the person as the author of a particular work or program or the performer in a particular performance.”
Clearly, a proposed use that involves making a feature film telling the life story of a deceased celebrity, is exactly the type of use that is permitted under the Illinois Act without consent of the individual or heirs. Unfortunately there is a dearth of Illinois and federal case law construing the statute. There is not a single case that construes the breadth or applicability of Section 35. There is, however, one federal case, Toney v. L’Oreal which examines whether the Copyright Act preempts claims under the Illinois Act. Since the Toney case is the only case to examine applicability of the Illinois Act, a brief look at the case is helpful.
In Toney v. L’Oreal, June Toney, a model, authorized Defendant to use her image on packages of a hair-care product for five years pursuant to a written agreement. Johnson Products sold the product line to L’Oreal USA, Inc. which, about one month after the expiration of Toney’s original five-year agreement with Johnson Products, sold the product line to Wella Personal Care of North America, Inc. Wella continued to market and distribute the hair-care product adorned with Toney’s likeness.
The lawsuit alleged that Johnson Products, L’Oreal and Wella violated Toney’s publicity rights by continuing to use her image after the expiration of the agreement and using her image in ways not permitted under the agreement. In response, the defendants moved to dismiss Toney’s right of publicity action arguing, among other things, that the statue of limitations had expired and that defendants’ rights as the owners of the copyright for the product packaging pre- empted Toney’s publicity rights claim. Put another way, defendants argued that the right to print and distribute the copyrighted hair-care product package (granted under the Copyright Act) pre-empted Toney’s publicity rights and prevented her from suing defendants for violation of the Illinois Act.
Although the District Court Judge agreed with the defendants, the 7th Circuit Court of Appeals reversed. First, the Court concluded that although the photograph at issue was copyrightable (fixed in a tangible medium of expression), Toney’s persona was not. Since the Illinois Act seeks to protect the persona, the Copyright Act does not pre-empt the Illinois Act. As the Court stated, “[t]here is no “work of authorship” at issue in Toney’s right of publicity claim. A person’s likeness—her persona—is not authored and it is not fixed.” “Identity…is an amorphous concept that is not protected by copyright law.”
The Court then examined whether defendants continued use of the photograph to market the hair-care products violated the Illinois Act. The Court took note that the purpose of the Illinois Act is to allow a person to control the commercial value of his or her identity, defined to mean the public use of an individual’s identity either on or in connection with the offering for sale or sale of a product, etc., or for purposes of advertising or promoting products, etc. The Court declared that defendants clearly used Toney’s likeness for their commercial advantage. “The basis of a right of publicity claim concerns the message—whether the plaintiff endorses, or appears to endorse the product in question.”
The Court concluded that since the defendants did not have Toney’s consent to continue using the photograph beyond the five year period in the agreement, they effectively prevented her from exercising control over the commercial value of her identity.
However, making a feature film telling the life story of a deceased celebrity is clearly distinguishable. First, although the Film is itself copyrightable, the issue is not whether a specific image or photograph of a celebrity may be used. The issue is whether and how the story of the persona may be told. Second, unlike the situation in Toney, the persona of a dead celebrity is not being used for a “commercial purpose” as defined by the Illinois Act. The celebrity’s persona is not being used to advertise or promote any product, or in any manner that appears he is endorsing a product. Furthermore, the Illinois Act explicitly permits the use of an individual’s identity in an attempt to portray, describe, or impersonate that individual in a film as excluded from the definition of “commercial purpose.”
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