Ainsworth v. Century Supply Co.

No. 3--97--0616
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

CHARLES H. AINSWORTH, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) 95--MR--213
)
CENTURY SUPPLY COMPANY, d/b/a )
Century Tile; and TCI OF )
ILLINOIS, INC., d/b/a Chicago )
Cable Advertising, ) Honorable
) Robert E. Byrne,
Defendants-Appellees. ) Judge, Presiding.
________________________________________________________________

JUSTICE INGLIS delivered the opinion of the court:

Plaintiff, Charles H. Ainsworth, appeals the orders of the
circuit court of Du Page County dismissing his complaint against
defendant TCI of Illinois, Inc. (TCI), and granting summary
judgment in favor of defendant Century Supply Company (Century).
We reverse and remand.
Plaintiff was hired to install tile at the house Tom Parks was
building. Parks is also referred to as Thomas Poczatek. Parks was
the sales manager for Century. Century is in the business of
selling, among other things, ceramic tile. In October 1993,
Century created a videotape that instructs customers how to install
ceramic tile. Century asked plaintiff for permission to videotape
him installing tile in Parks s house. Parks explained that the
video would be distributed to Century s customers. Plaintiff
consented to appear in the video. The video was completed and
Century began providing it to the public.
In 1994, Century hired TCI to create a television commercial.
The television commercial TCI created contained blank space into
which short bits of videotape could be inserted, thus creating a
number of different versions of the television commercial. One of
the inserts was taken from the instructional video in which
plaintiff participated. The television commercial with plaintiff s
image was aired a number of times.
In November 1994, plaintiff called Parks and complained about
his appearance in Century s television commercial, giving Century
two weeks to respond. Century asserted that it called TCI and
requested that the commercial be discontinued.
Plaintiff s image appears in the television commercial for
only a few seconds. Plaintiff concedes that there is nothing
objectionable about his appearance or the way he is installing
tile.
Plaintiff sued defendants for using his image in the
television commercial. In his five-count first amended complaint,
plaintiff alleged claims against Century for infringement to his
right of publicity (count I); invasion of privacy by appropriating
his likeness (counts II and IV); and for the establishment of a
constructive trust and an accounting (count III). Count V alleged
that TCI appropriated his likeness.
TCI filed a motion to dismiss plaintiff s claim. TCI claimed
that count V did not state a claim for invasion of privacy and that
TCI did not commercially benefit from the publication of
plaintiff s image. The trial court agreed and dismissed count V
of plaintiff s complaint.
Century filed a motion for summary judgment. Century alleged
that plaintiff s consent to appear in the instructional video
extended to the commercial and that plaintiff did not incur damages
and was not entitled to punitive damages from Century. The trial
court denied the motion as to the consent issue but granted summary
judgment in favor of Century on the issue of damages, holding that
plaintiff did not sustain actual damages and the lack of evidence
of malice or reckless indifference to plaintiff s rights precluded
an award of punitive damages. In addition, plaintiff voluntarily
dismissed counts I and III. Plaintiff timely appeals.
Plaintiff first contends that the trial court erroneously
dismissed count V of his complaint against TCI. Plaintiff argues
that TCI was paid to create a television commercial for Century and
thus received a commercial benefit. We agree.
A section 2--619 motion to dismiss (735 ILCS 5/2--619 (West
1994)) provides a means to dispose of issues of law or of easily
proved issues of fact. Melko v. Dionisio, 219 Ill. App. 3d 1048,
1057 (1991). For the purposes of a section 2--619 motion, the
court is required to consider all well-pleaded facts as true but is
not required to accept conclusions of law or conclusions of fact
unsupported by specific factual allegations. If issues of material
fact exist, the trial court should not grant a section 2--619
motion, nor should the trial court weigh the evidence. Melko, 219
Ill. App. 3d at 1057-58. As the reviewing court is concerned with
a question of law, its review is de novo. Payne v. Lake Forest
Community High School District 115, 268 Ill. App. 3d 783, 785
(1994).
The tort of invasion of privacy consists of four branches:
(1) an unreasonable intrusion upon the seclusion of another; (2)
an appropriation of another s name or likeness; (3) a public
disclosure of private facts; and (4) publicity which reasonably
places another in a false light before the public. Dwyer v.
American Express Co., 273 Ill. App. 3d 742, 744-45 (1995), citing
Restatement (Second) of Torts  652B, 652C, 652D, 652E, at 378-94
(1977); W. Keeton, Prosser & Keeton on Torts  117, at 849-69 (5th
ed. 1984). The elements of an appropriation claim are an
appropriation, without consent, of one s name or likeness for
another s use or benefit. [Citation.] This branch of the privacy
doctrine is designed to protect a person from having his name or
image used for commercial purposes without consent. Dwyer, 273
Ill. App. 3d at 748.
Here, plaintiff alleged that TCI was hired by Century to
produce a television commercial and that Century paid TCI for
completing the television commercial. Plaintiff further alleged
that TCI used footage from the instructional video in which
plaintiff appeared in creating the television commercial.
Plaintiff alleged that he did not consent to the use of his image
from the instructional video, but TCI nevertheless broadcast the
television commercial. Plaintiff also alleged that TCI received
further income from airing the television commercial. Plaintiff
has sufficiently pleaded an appropriation claim against TCI.
TCI argues that plaintiff failed to allege that TCI used his
image for its own benefit. TCI asserts that, because the
television commercial touted Century s products, TCI s use of
plaintiff s image in it conferred no commercial benefit on TCI.
This misses the mark. TCI created a television commercial which
used plaintiff s image and for which it was paid. We fail to see
how TCI s use of plaintiff s image was for anything but TCI s
commercial benefit. TCI s argument is without merit.
TCI also asserts that, as a media defendant, it should not be
liable for appropriating plaintiff s likeness, citing Berkos v.
National Broadcasting Co., 161 Ill. App. 3d 476 (1987). In Berkos,
the defendant displayed the plaintiff s photograph during a news
broadcast. The court determined that [a] commercial appropriation
claim cannot be stated where a plaintiff s name or likeness has
been used as part of a vehicle of information, such as the news
media. Berkos, 161 Ill. App. 3d at 495. The court also
distinguished the situation in Berkos from the commercial use of a
person s likeness in advertising as occurred in Eick v. Perk Dog
Food Co., 347 Ill. App. 293 (1952). Here, TCI made commercial use
of plaintiff s likeness by including it in an advertisement it had
been commissioned to create. Its use of plaintiff s likeness was
not incidental to the transmission of news information, but rather
it was central to the endeavor of advertising. Berkos is therefore
inapposite.
TCI also cites Buzinski v. Do-All Co., 31 Ill. App. 2d 191
(1961), for the same proposition. There, the plaintiff was
included in a photograph of a mobile home. The court held that the
picture of the mobile home was a matter of legitimate public
interest and that the plaintiff s incidental inclusion in the
photograph was reasonably related to the subject of the picture and
was not a commercial exploitation. Buzinski, 31 Ill. App. 2d at
196-97. Here, by contrast, the use of plaintiff s image was for
the purpose of advertising Century s products and services, not to
provide information of general interest to the public. Moreover,
the inclusion of plaintiff s image in the television commercial was
deliberate, not incidental, and integral to the advertisement.
Buzinski is likewise inapposite to TCI s argument. Accordingly, we
hold that the trial court erroneously dismissed count V of
plaintiff s amended complaint.
Plaintiff next contends that the trial court erroneously
granted summary judgment in favor of Century. Summary judgment is
properly granted if the pleadings, depositions, and admissions on
file, together with any affidavits, show there is no genuine issue
as to any material fact and that the moving party is entitled to
judgment as a matter of law. 735 ILCS 5/2-1005 (West 1994);
Leschinski v. Forest City Steel Erectors, 243 Ill. App. 3d 124, 127
(1993). In ruling on the motion, the court is required to construe
all evidentiary material strictly against the movant and liberally
in favor of the respondent. Pagano v. Occidental Chemical Corp.,
257 Ill. App. 3d 905, 908 (1994).
The propriety of an order granting summary judgment is a
question of law and, as such, we review such orders de novo.
Pagano, 257 Ill. App. 3d at 909. If, after reviewing the pleadings
and evidentiary material before the trial court, the reviewing
court determines that a material issue of fact exists or that the
summary judgment was based on an erroneous interpretation of the
law, then reversal is warranted. Pagano, 257 Ill. App. 3d at 909.
Plaintiff first contends that the trial court erred by finding
that he had failed to demonstrate the existence of actual damages.
We agree.
Century argues that, as a matter of law, plaintiff s
allegations are insufficient to prove any actual damages. Century
points to plaintiff s deposition, in which plaintiff stated that he
was angry over the use of his image in Century s television
commercial. Century overlooks, however, the venerable principle
that the law will presume that damages exist for every infringement
of a right. Duran v. Leslie Oldsmobile, Inc., 229 Ill. App. 3d
1032, 1040 (1992). Here, plaintiff has alleged that Century
appropriated his image from the instructional video, without his
consent, for Century s own benefit. See Dwyer, 273 Ill. App. 3d at
748 (elements of tort). Accordingly, plaintiff has alleged the
infringement of his legal right to the use of his image. It is
proper to vindicate plaintiff s right to the use of his image
against this deliberate violation, even if plaintiff cannot prove
actual damages. Crosby v. City of Chicago, 11 Ill. App. 3d 625,
630 (1973). In addition, we note that the courts in Illinois have
long presumed that nominal damages are available for this tort.
See Smith v. WGN, Inc., 47 Ill. App. 2d 183, 185-86 (1964) ( [t]he
use of plaintiff s pictures for advertising purposes, if without
his consent, constitutes an invasion of his right of privacy and
may entitle him to recover more than nominal damages ).
The availability of nominal damages notwithstanding, Century
maintains that plaintiff has failed to demonstrate the existence of
any damages beyond an award of nominal damages. Century contends
that plaintiff must experience severe emotional distress. Century
misapprehends the nature of the tort with which it is charged. The
appropriation of a plaintiff s image is more properly in the nature
of a usurpation of a plaintiff s property rights in the exclusive
use of his image. See 62A Am. Jur. 2d Privacy  71 (1990). Thus,
Century s contention that plaintiff must prove a significant level
of mental distress is immaterial. Accordingly, plaintiff may
prove, if he is able, the value of the use Century made of his
image as well as any damages resulting from his alleged emotional
distress.
Century rightly notes that a reviewing court may sustain a
summary judgment on any ground justified by the record. See Adcock
v. Brakegate, Inc., 247 Ill. App. 3d 824, 831 (1993), aff d, 164 Ill. 2d 54 (1994). As grounds supporting the summary judgment,
Century first contends that, by consenting to appear in the
instructional video, plaintiff also consented to appear in its
television commercial. Century s reasoning is clearly flawed, as
it amounts to the assertion that, by consenting to eat apples with
dinner, one has also consented to eat oranges. The fact that both
are fruit does not make them indistinguishable. Likewise, the fact
that plaintiff consented to appear in the instructional video that
was to be available to Century s customers does not mean that his
consent extended to his appearance in a television commercial,
broadcast to the television-watching public. We reject Century s
consent argument.
Century next argues that it received no commercial benefit
from the use of plaintiff s image in its television commercial.
Century seems to advance the contention that plaintiff s image is
fungible and that, by using plaintiff s image as opposed to any
other, it received no commercial benefit. This argument fares
little better, for, even if we accept that plaintiff s image was a
fungible commodity, Century nevertheless chose plaintiff s image
and no other. Plaintiff s image was integral to the concept of the
advertisement. Century benefitted by airing the television
commercial. Plaintiff s image, not one of the others, had some
value to Century, even if it were merely ease of procurement.
Because Century received a commercial benefit from its advertising,
we cannot say that Century received no benefit from the use of
plaintiff s image. Accordingly, we hold that the trial court
erroneously granted summary judgment in favor of Century on the
issue of actual damages.
Plaintiff next argues that the trial court erred by granting
summary judgment in favor of Century on the issue of punitive
damages. The purpose of punitive damages is to punish the offender
and to deter others from committing similar actions. Bryant v.
Livigni, 250 Ill. App. 3d 303, 312 (1993).
Punitive *** damages may be awarded when torts are committed
with fraud, actual malice, deliberate violence or oppression,
or when the defendant acts wilfully or with such gross
negligence as to indicate a wanton disregard for the rights of
others [citation], or for conduct involving some element of
outrage similar to that found in crime. Homewood Fishing
Club v. Archer Daniels Midland Co., 239 Ill. App. 3d 102, 115
(1992).
The conduct approaches the level of blameworthiness associated with
intentional harm and is performed either with an evil motive or
with reckless indifference to the rights of others. Homewood
Fishing Club, 239 Ill. App. 3d at 115. Punitive damages are
disfavored in the law due to their penal nature, and caution must
be used to avoid awarding them unwisely. Homewood Fishing Club,
239 Ill. App. 3d at 115. While the amount of punitive damages is
a question for the jury, the initial decision of whether punitive
damages may be awarded in a particular case is a matter of law for
the trial judge to decide. Homewood Fishing Club, 239 Ill. App.
3d at 115.
Here, as proof of Century s culpable mental state, plaintiff
points to the fact that Century did not bother to secure his
consent. In his deposition, Tom Parks stated that he was shocked
by plaintiff s complaint because plaintiff s part was so small and
I thought most people would be thrilled that they would be in a
commercial. Additionally, in his deposition, plaintiff stated
that, when he first confronted Century about the television
commercial, Century denied he was in it. According to plaintiff,
this demonstrates that Century intended to deceive him and deprive
him of the benefit of the use of his image. Pointing to the
various broadcast records of the stations airing the commercial,
plaintiff also contends that Century continued to air the
television commercial for months after he demanded that it be taken
off the air. The records indicate there is some merit to
plaintiff s contention. Viewing these contentions most favorably
for the nonmovant plaintiff, as we must, we conclude that plaintiff
has demonstrated the existence of evidence from which the finder of
fact could infer that Century acted with malice or reckless
indifference to his rights. We note that Century controverts
plaintiff s scenario outlined above. Additionally, Century blames
TCI for failing to secure plaintiff s consent to appear in the
commercial. This does not wash because Century provided
plaintiff s image to TCI and not the reverse. In addition,
Century s contentions serve to highlight the existence of genuine
issues of material fact concerning Century s mental state.
Accordingly, because there are genuine issues of material fact, and
because of the preliminary posture of the evidence in this case, we
hold that the trial court erred by granting summary judgment in
favor of Century on the issue of punitive damages.
For the foregoing reasons, the judgment of the circuit court
of Du Page County is reversed, and the cause is remanded for
further proceedings consistent with our disposition.
Reversed and remanded.
GEIGER, P.J., and McLAREN, J., concur.