The opinion of the court was delivered by: Marovitz, District Judge.
Motion of defendant to dismiss the third amended and
This is a civil action in seven counts brought by the
administratrix of the estate of Alphonse Capone, deceased, and
by the wife and son of said Alphonse Capone. Jurisdiction is
founded upon diversity of citizenship.
The third amended and supplemental complaint, presently
before this court, undertakes to state two distinct causes of
action. The first cause, embodied in Counts I-IV (hereinafter
referred to as the PROPERTY claim) is brought by one Mafalda
Maritote, the administratrix of the estate of Alphonse (Al)
Capone. Plaintiff seeks to recover by way of quasi-contract
from defendants Desilu Productions, Inc. (Count I), Columbia
Broadcasting System, Inc. (Count II) and Westinghouse Electric
Corp. (Count III), asserting that said defendants were
"unjustly enriched" through an alleged appropriation of the
"name, likeness and personality" of Al Capone, without the
consent of the widow, son or administratrix, for use in a
television broadcast in April and October, 1959, entitled,
"The Two-Part Drama — The Untouchables." It is alleged that
said broadcasts were produced by Desilu, telecast by CBS, and
sponsored by Westinghouse.
Count IV, brought against Desilu, alone, complains of
telecasts made subsequent to the commencement of the action,
on the weekly series, "The Untouchables." (Count IV will
hereinafter be referred to as the SUPPLEMENTAL PROPERTY
Counts V, VI, and VII undertake to state a separate cause of
action in favor of Mae Capone and Albert (Sonny) Capone, the
widow and son of the deceased. This cause of action arose by
way of an amended complaint, filed pursuant to leave granted
by Judge Julius Miner on July 6, 1962. Count V, Paragraphs 1
through 6 and Paragraph 22, Count VI, and Count VII complain
of the initial two-part telecast and are brought against
Desilu, CBS and Westinghouse respectively. Paragraphs 1 and 7
through 23 of Count V purport to be a supplemental complaint
directed at the subsequent series of telecasts. (These Counts
will hereinafter be referred to as the PRIVACY claim, and the
SUPPLEMENTAL PRIVACY claim, respectively.) The plaintiffs in
this second cause of action allege an invasion of their right
of privacy by the defendants, although they themselves were
not publicized in the allegedly offending telecasts.
Plaintiff Maritote seeks damages against Desilu in sums
totaling three million dollars, and against the other two
defendant corporations in the sum of $250,000 each. Plaintiffs
Mae and Albert Capone demand damages against Desilu in the sum
of two million dollars and against the other two defendant
corporations in the sum of $250,000 each.
Having carefully read the voluminous briefs supplied by able
counsel on both sides, this court must decide two complex,
1) The court having recognized the fact that there exists no
right of privacy in a dead man under Illinois law, may the
estate of a deceased person recover in quasi-contract for an
alleged appropriation of a property right in the name,
likeness, and personality of said deceased person?
2) Under the law of the State of Illinois, may the
plaintiffs maintain an action for invasion of their right of
privacy by telecasts respecting their deceased relative, when
they themselves were not publicized in the said telecast?
As a preliminary observation, it is the opinion of this
court that plaintiffs should not under any circumstances be
able to recover under both causes of action. Should this court
imply the existence of a contract respecting the alleged
property rights plaintiffs should not justly be permitted to
complain that their privacy has been invaded. A party should
not be able to contract away a property right and then reverse
its field and complain of invasion.
1) The property claim raises three distinct issues:
a) Shall this claim be treated as an invasion of
privacy suit, maintainable only by Al ...