Chicago partner John M. Touhy co-authored an article featured in the Illinois Bar Journal in March 2011 titled “The Right of Publicity in Illinois.”
Touhy discussed the right of publicity, which has been codified in the Illinois Right of Publicity Act (Illinois Act), which gives people the right to control their likeness and image and prohibits third parties from using another’s identity “for commercial purposes.” The right of publicity, however, is often in conflict with the First Amendment. The article discusses the different tests courts throughout the country have used to balance those competing interests.
Several federal district courts have attempted to balance the right with the First Amendment using the “relatedness test:” the use of another person’s likeness in a work is permitted if the work is “related to that person.” However, the user can be held liable if the “name or likeness is used solely to attract attention to a work that is not ‘related’ to the identified person.”
California courts have formulated another test in construing that state’s right of publicity statute. Those courts have held that a third party can use another’s likeness only if the new work adds something “new” or “different” so that it alters the likeness with a new expression or meaning. To gain First Amendment protection, the new work must “transform” the likeness so that the work’s value comes from a source other than the likeness itself.
Other courts have borrowed the U.S. Supreme Court’s “actual malice” standard from New York Times v. Sullivan. Third-parties are not liable to the person whose likeness was used if the expressive statements are inextricably intertwined with the commercial use of the image. Those courts have held that the third-party can only be held liable if they acted with reckless disregard for the truth.
The Missouri courts have applied yet another test that looks at the use of likeness. If it is “predominantly” for commercial gain, a third party can be held liable for misappropriation.
According to Touhy, it is uncertain what test will be employed in Illinois as no Illinois state court has to date selected the test to apply to cases brought under the Illinois Act. As a result, Illinois lawyers must be ready to navigate the wide variety of approaches that courts have taken to reconcile the clash between the First Amendment and the right to publicity.