Court Clarifies Meaning of “Identify” in Illinois Right of Publicity Statute
by Jerry Glover
September 13, 2017
Two women, Anna Dobrowolski and Nicole Vinci, sued several Internet companies including Intelius, Inc. and Instant Checkmate, Inc. in the federal district court for the Northern District of Illinois for using their names in advertisements for those companies’ services without their consent. Dobrowolski v. Intelius, Inc., 2017 WL 3720170 (N.D. Ill. August 29, 2017). The plaintiffs claimed this use violated the Illinois Right of Publicity Act, 765 ILCS 1071/1 et seq. (the “IRPA”)
Each of the defendants provided online reports about people using information compiled from public records and other sources. They pay internet search engines to advertise their reports. When a website user is searching for information about a person, the user will type in the person’s name into a search engine. The first and last name of the person being searched will then appear in a generic on-line ad for the defendants’ reports. The court noted that the ads are designed to look like they contain valuable information about the searched-for person. The website user is directed to the defendant’s website where the user is offered a membership or information for purchase.
The plaintiffs discovered their names had been used in the defendants’ on-line ads. Neither plaintiff had authorized or given consent to the use of their names in these ads.
[NOTE: Intelius was dismissed from the action by the district court for plaintiff’s failure to show that the court had personal jurisdiction over Intelius, a Delaware corporation with its principal place of business in Washington state]
The IRPA prohibits the use of a person’s “identity” for commercial purposes without that person’s prior consent. “Identity” is defined by the statute as “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. The plaintiffs argued that the ads used their names without consent to promote the defendants’ information-reporting services. The defendants did not contest the lack of consent but they did claim that they had not used the plaintiffs’ identities.
The defendants argued that they did not used the plaintiffs’ identity as defined in the IRPA because “the ads only reflect the coincidental result of a third party’s internet search for their names, without any additional information (e.g., age, location, employment) to identify … [which] ‘Anna Dobrowolski’ or ‘Nicole Vinci’ is intended.” The defendants also argued that the IRPA requires that the plaintiff’s identity is used to endorsement a product/service and the plaintiff’s name must have some intrinsic commercial value. The plaintiffs countered by arguing the defendants had used their identities because their names in the Internet ads enticed potential customers by essentially saying to someone searching the ad for either plaintiff that the defendants had located them and have information on them. In addition, the plaintiffs argued that their names must have had some commercial value to the defendants or the defendants would not have used them.
As to what a name must do: the plaintiffs tried to argue that the defendants’ ads were designed to make a person searching the internet for one of the plaintiffs believe that the defendants had located the plaintiff and had information on her. There was no need, the plaintiffs concluded, for others to identify them by name. The court held that the IRPA requires that a particular individual be identified by an advertisement noting that the IRPA does not state that a name alone is necessarily sufficient to identify an individual. A “reasonable audience” beyond that person searching for names identical to the plaintiffs’ must be able to identify the plaintiffs by name. The court noted that the plaintiffs had not argued that they have the kind of celebrity status that would identify them by name alone.
Even though that would have ended the case, the court briefly looked at the defendants’ other arguments. The court agreed that it could not be shown that the defendants had intended to use plaintiffs’ name as required by the IRPA since the defendants did not choose the names used in their internet ads. The court disagreed, however, that the IRPA requires a plaintiff to have intrinsic commercial value. The court noted that the statute’s purpose of allowing people to control the commercial use of their identity does not limit protection to celebrities or public figures. Finally, the court disagreed that the IRPA requires the defendants’ ad messages to claim plaintiffs were endorsing defendants’ products. The ads in this case did not show an endorsement. The court noted that endorsements were only one example of commercial use.