Before DUFFY, SCHNACKENBERG and KNOCH, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
This action is maintained by Mafalda Maritote, Administratrix of the estate of Alphonse (Al) Capone, deceased, Mae Capone, his widow, and Albert Capone, his son, plaintiffs, against Desilu Productions, Inc., a California corporation, Columbia Broadcasting System, Inc., a New York corporation, and Westinghouse Electric Corporation, a Pennsylvania corporation, defendants.
Maritote claimed a property right to recover for unjust enrichment arising out of an alleged appropriation by defendants of the "name, likeness and personality" of Al Capone. Mae Capone and Albert Capone asserted a claim for invasion of their privacy, arising out of the identical acts of defendants. There was also a prayer for an injunction.
Sustaining defendants' contention that no cause of action was stated, the district court dismissed plaintiffs' third amended and supplemental complaint and plaintiffs' case. Plaintiffs have appealed.
This is a diversity action and the law of Illinois applies.
Most prominently emphasized by plaintiffs in argument is the assertion by the widow and the son of Al Capone, deceased, of an invasion of their right of privacy by defendants, resulting from the latter's "commercial exploitation" of decedent in commercially televised fictional broadcasts after his death. Plaintiffs do not claim that they were referred to or shown in any of said broadcasts.
From these controlling facts we turn to the Illinois law. In Bradley v. Cowles Magazines, Inc., 26 Ill.App.2d 331, at 333, 168 N.E.2d 64, at 65 (1960), the court said:
"The legal question before us is, shall the right of privacy be extended to provide damages for the anguish of a mother, caused by a publication concerning the murder of her son, although she herself was not featured or substantially publicized. The articles purport to give an account of the murder as related to a reporter by the two men who were accused and were acquitted. * *" (Emphasis added.)
The court held that the right of privacy of plaintiff should not be extended to cover the asserted claim, although in that case plaintiff was referred to at least once in the alleged offensive publication.
In Bradley, Justice Schwartz, at 336, 168 N.E.2d at 66, relied on Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 95 P.2d 491 (1939), saying:
"* * * The court also held that a right of action for the invasion of the right of privacy was purely personal, and that the plaintiff must prove invasion of his own right of privacy before he can recover. * * *"
The same reasoning appears in Kelly v. Johnson Publishing Co., 160 Cal. App.2d 718, 325 P.2d 659 (1958), where the surviving sisters of a deceased boxer sued for invasion of their right of privacy by an article published by defendant. The article referred to the deceased ...