Public Act 90-0747 of the 90th General Assembly
Public Act 90-0747
HB1422 Enrolled LRB9003925PTpk
AN ACT concerning the right of publicity.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Right of Publicity Act.
Section 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).
Section 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.
Section 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.
Section 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.
Section 25. Termination of rights of deceased
individual. The rights set forth in this Act terminate if:
(a) a deceased individual has not transferred his or her
rights in writing under Section 15 of this Act; and
(b) the individual has no living spouse, parents,
children, or grandchildren.
Section 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.
Section 35. Applicability.
(a) This Act applies to acts or events that take place
after the effective date of this Act.
(b) This Act does not apply to 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;
(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;
(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;
(4) promotional materials, advertisements, or
commercial announcements for a use described under
paragraph (1), (2), or (3) of this subsection; or
(5) use of photographs, videotapes, and images by a
person, firm, or corporation practicing the profession of
photography ("professional photographer") to exhibit in
or about the professional photographer's place of
business or portfolio, specimens of the professional
photographer's work, unless the exhibition is continued
by the professional photographer after written notice
objecting to the exhibition has been given by the
individual portrayed.
Section 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.
Section 45. Establishment of profits. In establishing
profits under paragraph (1) of subsection (a) of Section 40
of this Act:
(a) the plaintiff is required to prove the damages or
gross revenue attributable to the unauthorized use; and
(b) the defendant is required to prove properly
deductible expenses.
Section 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.
Section 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.
Section 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.