Trannel v. Prairie Ridge Media, Inc.
987 N.E.2d 923
Ill. App. Ct.2013Background
- Defendant publishes McHenry County Living magazine and distributes it free to communities and advertisers to generate revenue.
- Spring 2009 gardening-contest finalists are photographed, including plaintiff and her daughter, without written releases.
- Autumn 2009 magazine issue published photos of winners, including subject photograph on a cover inset.
- Defendant later prepared a four-page Media Kit & Editorial Calendar 2010 to solicit advertisers; cover page included the subject photograph.
- Plaintiff learned of the cover photograph’s inclusion in the media kit in January 2010 and demanded removal; defendant ceased use after her complaint.
- Plaintiff filed suit May 2010 alleging unauthorized appropriation of likeness and violation of the Right of Publicity Act; trial court granted summary judgment for defendant; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether use of the subject photograph on the media kit cover violated the Act | Trannel contends the cover use was a commercial use requiring consent. | Media kit and magazine are a single commercial device; consent to contest photo sufficed. | Yes, cover use violated the Act; not exempt as news. |
| Damages appraisal and recovery under the Act | Plaintiff seeks profits attributable to unauthorized use (approximately $38,933). | No proof profits were attributable to the unauthorized use; only speculation. | Award statutory damages of $1,000 each; no proven actual or profit damages. |
| Punitive damages under the Act | Willful violation warranted punitive damages. | Actions were not willful; steps were taken to rectify. | No punitive damages awarded. |
| Attorney fees, costs, and expenses under the Act | Fees should be awarded for the Act violation. | Fees discretionary; no conclusion on entitlement. | Remanded to determine whether fees, costs, and expenses should be awarded. |
Key Cases Cited
- Blair v. Nevada Landing Partnership, RBG, LP, 369 Ill. App. 3d 318 (Ill. App. 2006) (codifies right of publicity; distinguishes from common-law torts)
- Shimanovsky v. General Motors Corp., 181 Ill. 2d 112 (Ill. 1997) (duty to preserve evidence; sanctions standard)
- Eick v. Perk Dog Food Co., 347 Ill. App. 293 (Ill. App. 1952) (advertising use of plaintiff’s photograph; mental anguish guidance)
- Annerino v. Dell Publishing Co., 17 Ill. App. 2d 205 (Ill. App. 1958) (publication of photograph in sensational context; damages considerations)
- Ainsworth v. Century Sash & Tile Co., 295 Ill. App. 3d 644 (Ill. App. 1998) (egregious exploitation of a plaintiff for endorsement)