Ainsworth v. Century Supply Co.
693 N.E.2d 510, 295 Ill. App. 3d 644, 230 Ill. Dec. 381 (1998)
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Rule of Law:
Consent for one's likeness to be used for a specific purpose does not extend to other, distinct commercial uses. A plaintiff in an appropriation of likeness claim does not need to prove actual damages, as the law presumes at least nominal damages for the infringement of their property right in their image.
Facts:
- Charles H. Ainsworth, a tile installer, was hired to install tile at the home of Tom Parks, a sales manager for Century Supply Company.
- In October 1993, Century asked Ainsworth for permission to videotape him installing tile for an instructional video to be distributed to its customers.
- Ainsworth consented to appear in the instructional video, which Century then produced and distributed.
- In 1994, Century hired TCI of Illinois, Inc., to create a television commercial.
- TCI used footage of Ainsworth from the instructional video as an insert for the television commercial.
- The television commercial featuring Ainsworth's image was broadcast multiple times.
- In November 1994, Ainsworth contacted Parks to complain about his unauthorized appearance in the commercial.
Procedural Posture:
- Charles H. Ainsworth sued TCI of Illinois, Inc. and Century Supply Company in the circuit court of Du Page County for appropriation of his likeness.
- The trial court granted TCI's motion to dismiss, finding that TCI did not commercially benefit from using Ainsworth's image.
- The trial court also granted summary judgment in favor of Century, holding that Ainsworth had not sustained actual damages and that there was no basis for punitive damages.
- Ainsworth (appellant) appealed the trial court's dismissal of his claim against TCI and the grant of summary judgment for Century (appellee) to the Appellate Court of Illinois.
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Issue:
Does a person's consent to appear in an instructional video also constitute consent for their likeness to be used in a television commercial, and does a production company that is paid to create the commercial commercially benefit from using that person's likeness without specific consent?
Opinions:
Majority - Justice Inglis
No. Consent given for one specific purpose does not extend to a separate and distinct use, and a production company paid to create an advertisement using an individual's likeness has commercially benefited from that use. The court reasoned that TCI received a commercial benefit because it was paid by Century to produce the commercial that used Ainsworth's image; its benefit was direct, not incidental. The court rejected Century's argument that Ainsworth's consent for the instructional video extended to the commercial, stating the two uses were fundamentally different, analogizing that 'consenting to eat apples with dinner' is not consent 'to eat oranges.' Furthermore, the court held that a plaintiff in an appropriation case need not prove actual damages like emotional distress because the tort is a usurpation of a property right in one's image, for which the law presumes at least nominal damages. Finally, the court found there were genuine issues of material fact as to whether Century acted with malice or reckless indifference, which could warrant punitive damages, making summary judgment on that issue improper.
Analysis:
This decision clarifies the scope of consent in appropriation of likeness claims under Illinois law, establishing that consent must be specific to the use and is not broadly transferable to different media or contexts. It broadens the definition of 'commercial benefit' to include third-party production companies paid to create infringing content, even if the final advertisement promotes another entity. The ruling also solidifies the property-based nature of the tort, confirming that damages can be awarded for the infringement of the right itself (i.e., the value of the use) without requiring proof of emotional distress, thereby lowering the evidentiary burden for plaintiffs to survive summary judgment.
