§ 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.

§ 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.

§ 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.
 Notes of Decisions

1.Public use

“Public use,” as used in the Right of Publicity Act's definition of commercial purpose, means
aggregate of the citizens, everybody, the people at large, or the community at large. Trannel v.
Prairie Ridge Media, Inc., App. 2 Dist.2013, 370 Ill.Dec. 157, 987 N.E.2d 923. Torts 387

Magazine publisher's use of a photograph of winner of a magazine-sponsored gardening contest

and her minor daughter on cover of a media kit distributed to advertisers was not a “public use”
under Right of Publicity Act, where the media kit was only distributed to 27 businesses and four
individuals in a county with a population of more than 300,000. Trannel v. Prairie Ridge Media,
Inc., App. 2 Dist.2013, 370 Ill.Dec. 157, 987 N.E.2d 923. Torts 390(2)

Talent and modeling agency hired by child's mother to obtain and market photographs of child
did not use child's likeness for “commercial purposes” and, thus, was not liable under Right of
Publicity Act after baby food manufacturer posted child's photograph on cereal boxes; although
agency may have arranged for use of child's identity by the manufacturer, its transactions were
not a “public use or holding out” because it did not disseminate child's image to a party other
than advertising company and food manufacturer, and there were no facts supporting allegation
that agency used child's photographs in its own advertisements distributed to the public in an
effort to promote its talent agency business. Abbs v. Lily's Talent Agency, Inc., App. 1
Dist.2012, 2012 WL 6953496, Unreported. Torts 390(2)

Go to table of contents - Public use Go to table of contents

2.Holding out

2.Holding out

Magazine publisher's “holding out” the identities of winner of a magazine-sponsored gardening

contest and her minor daughter on cover of a media kit distributed to advertisers was connected
to an offer for sale or sale of a product, merchandise, goods, or services, and therefore publisher
needed written consent under the Right of Publicity Act, even though winner consented to the
use of the photograph in the magazine, where the use of the photograph in the magazine was for
news purposes which were different than the use of the photograph in the media kit, and consent
for use in the magazine was not consent for use in the media kit. Trannel v. Prairie Ridge
Media, Inc., App. 2 Dist.2013, 370 Ill.Dec. 157, 987 N.E.2d 923. Torts 395

Magazine publisher's use of a photograph of winner of a magazine-sponsored gardening contest

and her minor daughter on cover of a media kit distributed to advertisers constituted
representing, or holding out, their identities, and therefore publisher needed written consent
under the Right of Publicity Act if the “holding out” was in connection with the offering for sale
or sale of a product, merchandise, goods, or services, where publisher deliberately chose to use
photograph of winner and daughter in the media kit. Trannel v. Prairie Ridge Media, Inc., App.
2 Dist.2013, 370 Ill.Dec. 157, 987 N.E.2d 923. Torts 395

Go to table of contents - Holding out Go to table of contents

3.Evidence

3.Evidence

There was no evidence of actual damages or profits attributable to magazine publisher's violation
of Right of Publicity Act by using a photograph of winner of magazine-sponsored gardening
contest and her minor daughter on the cover its media kit for commercial purposes without
written consent, and therefore winner and daughter could only obtain $1000 each under the Act;
winner merely added up the advertising dollars without attempting to prove the crucial link
between those dollars and the subject photograph, the cover contained eight other photographs,
some of them with more than one recognizable person in them, and if any advertisers were
moved to place ads because of the cover, any of the other eight photographs could have been the
reason. Trannel v. Prairie Ridge Media, Inc., App. 2 Dist.2013, 370 Ill.Dec. 157, 987 N.E.2d
923. Damages 127.5

Magazine publisher did not have a duty to preserve evidence of any profits it might have derived
from a potential violation of Right of Publicity Act by publisher's use of a photograph of winner
of magazine-sponsored gardening contest and her minor daughter on the cover of a media kit that
publisher distributed to advertisers, and therefore no adverse inference could be made against
publisher in connection with winner's attempt to prove actual damages under Act, where, at the
time publisher handed out the media kits to its salespeople, publisher had no idea that the cover
would involve it in litigation. Trannel v. Prairie Ridge Media, Inc., App. 2 Dist.2013, 370
Ill.Dec. 157, 987 N.E.2d 923. Evidence 78

Go to table of contents - Evidence Go to table of contents

4.Damages

4.Damages

Winner of a magazine-sponsored gardening contest and her minor daughter were not entitled to
punitive damages for magazine publisher's violation of Right of Publicity Act by using a
photograph of them on the cover its media kit for commercial purposes without written consent;
publisher's actions in selecting the photograph for the media kit because it was pleasing was not
malicious or willful, and neither winner nor her daughter claimed mental anguish, ridicule,
humiliation, or emotional distress as a result of publisher's acts. Trannel v. Prairie Ridge Media,
Inc., App. 2 Dist.2013, 370 Ill.Dec. 157, 987 N.E.2d 923. Damages 91.5(3)

Go to table of contents - Damages Go to table of contents

5.Commercial speech

5.Commercial speech
Grocery store operator's advertisement, in magazine's commemorative issue, congratulating
former professional basketball player on his induction into professional basketball's hall of fame,
was “commercial speech,” which was entitled to reduced protection under the First Amendment,
for purposes of former player's claims for violations of the Lanham Act, the Illinois Right of
Publicity Act, and the Illinois Consumer Fraud and Deceptive Trade Practices Act, as well as
common-law claim for unfair competition; ad prominently featured store's trademarked logo and
marketing slogan, which were creatively and conspicuously linked to former player in text of
ad's congratulatory message, so that the ad, based on its content and context, was a form of
image advertising aimed at promoting store's brand and enhancing consumer goodwill by
exploiting public affection for former player at an auspicious moment in his career, though the ad
did not propose a commercial transaction. Jordan v. Jewel Food Stores, Inc., C.A.7 (Ill.)2014,
743 F.3d 509, 109 U.S.P.Q.2d 1789, on remand 83 F.Supp.3d 761, 113 U.S.P.Q.2d 2093.
Antitrust and Trade Regulation 294;  Constitutional Law 1602;  Constitutional Law
1630;  Torts 391

Commercial advertisement for energy drink depicting in a comedic fashion an individual who
was able to disprove the theory of relativity, swim the English Channel, and set the world record
for the sport of footbag, all at the same time, did not use identity of individual who held record
for consecutive kicks in singles category for sport of footbag, and thus did not violate his rights
under Illinois Right to Publicity Act (IRPA); no reasonable consumer would assume that the
commercial, intended to be a comedic farce, was depicting the record-holder. Martin v. Living
Essentials, LLC, N.D. Ill.2016, 160 F.Supp.3d 1042, 117 U.S.P.Q.2d 1629, affirmed 653
Fed.Appx. 482, 2016 WL 3619372, rehearing denied. Torts 390(2)