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MARITOTE v. DESILU PRODUCTIONS

June 12, 1964

MAFALDA MARITOTE, ADMINISTRATRIX OF THE ESTATE OF ALPHONSE (AL) CAPONE, DECEASED, MAE CAPONE AND ALBERT CAPONE, PLAINTIFF,
v.
DESILU PRODUCTIONS, INC., A CORPORATION, COLUMBIA BROADCASTING SYSTEM, INC., A CORPORATION, AND WESTINGHOUSE ELECTRIC CORPORATION, A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Marovitz, District Judge.

Motion of defendant to dismiss the third amended and supplemental complaint.

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 claim.)

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.

Defendants have filed a motion to dismiss for failure to state a cause of action. Under the rationale of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, this court, hearing a diversity action, must apply the substantive law of Illinois to the facts at bar.

Having carefully read the voluminous briefs supplied by able counsel on both sides, this court must decide two complex, multi-faceted questions:

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 ...

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