The opinion of the court was delivered by: GETTLEMAN
Plaintiffs Philip Ahn, Elizabeth Malecki, and Katalin Zamiar bring this seven count action against defendants Midway Corporation ("Midway"), Williams Electronics Games, Inc. ("Williams"), Acclaim Entertainment, Inc. ("Acclaim"), Nintendo of America, Inc. ("Nintendo"), and Sega of America, Inc. ("Sega"), alleging infringement of the common law right of publicity, and violations of: Section 43(a) of the Lanham Act; the Illinois Consumer Fraud and Deceptive Practices Act; the Illinois Uniform Deceptive Trade Practices Act; and, the Copyright Act of 1976, along with one count under common law quantum meruit. Plaintiffs seek a constructive trust on all moneys defendants received and continue to receive from the alleged breach of their duty to plaintiffs. Defendants have filed a motion for summary judgment on all counts. For the reasons set forth below, defendants' motion is granted.
Plaintiff Philip Ahn is a fourth degree black belt in Tae Kwon Do and has practiced martial arts for approximately twenty years. Plaintiff Elizabeth Malecki holds a degree in ballet and modern dance and is a professional dancer, actress, and aerobics instructor. Plaintiff Katalin Zamiar is a first degree black belt in Karate and has twelve years of experience. Midway designs, manufactures, and sells coin-operated amusement games and licenses home video games, including Mortal Kombat and Mortal Kombat II, to which Midway owns the copyright to the computer program and related audiovisual materials. Williams acts in conjunction with Midway in designing, manufacturing, and selling coin-operated video games. Acclaim manufactures software for use in Nintendo and Sega hardware systems for home video games. Nintendo and Sega design, market and sell home video games.
Plaintiffs' versions of the events that lead to their association with Midway are essentially identical. All plaintiffs allege that on separate occasions between 1992 and 1993 they were approached by Midway's agents about the possibility of using their images, names and performances for various character in the coin-operated arcade format of Mortal Kombat and Mortal Kombat II. Plaintiff Malecki modeled the character Sonja Blade for Mortal Kombat. Plaintiff Ahn modeled the character Shang Tsung in the coin-operated version of Mortal Kombat II, while plaintiff Zamiar modeled for three characters, Kitana, Mileena, and Jade, all of whom appeared in Mortal Kombat II. Plaintiffs' movements were videotaped by Midway and these images were eventually digitalized and incorporated into the coin-operated arcade games.
All plaintiffs signed a release form with Midway at the time of the videotaping. This agreement authorized Midway to film each plaintiff in a martial arts performance in order to use that plaintiff's name or likeness in connection with the manufacture, design, advertising, promotion, sale, and use of the coin-operated video games. The agreement also made Midway the sole and exclusive owner of all of plaintiffs' copyrightable expression, defining any such expression as "works for hire," and permitted Midway, at its sole discretion, to use plaintiffs' likeness in any copyright obtained in connection with the coin-operated arcade games.
Plaintiffs allege that they were required to sign the release in case of injury and that Midway lead them to believe that only a small number of arcade games were being contemplated. However, in the event the game proved successful, they were told they would receive bonuses, or if the coin-operated versions of the game developed into ancillary uses, plaintiffs would receive royalties, and would be considered for movie parts, personal appearances and television commercials. Plaintiffs allege that based on these representations they all signed the agreement, which the parties refer to as the General Release.
The arcade version of Mortal Kombat and its successor, Mortal Kombat II, proved to be successful. In September, 1993, Acclaim, Nintendo and Sega released the home video game version of Mortal Kombat, and in September, 1994, they released the home game version of Mortal Kombat II. In April of 1994, all plaintiffs attended a meeting with agents of Midway and Williams. At this meeting plaintiffs were promised what plaintiffs have termed "wonderful opportunities" if they signed an additional agreement, known as the Non-disclosure Agreement and Release. Plaintiffs allege that at this meeting they were informed that various companies were interested in utilizing plaintiffs' images in various products and commercial endorsements. All three plaintiffs refused to sign this second agreement.
I. Summary Judgment Procedure
Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The court must consider the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmovant, and any doubts as to whether a genuine factual dispute exists must be resolved in favor of the non-moving party. New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1477 (7th Cir. 1990). However, once the movant has satisfied its initial burden, the nonmoving party then has the burden of coming forward with evidence demonstrating that there is a genuine issue to be tried to the factfinder. Id. A fact is genuinely in dispute when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
II. The Right of Publicity
In Count I plaintiffs allege that defendants' unauthorized use of their names, personas, and likenesses violated their common law right of publicity. Defendants argue both that the right of publicity is preempted by the Copyright Act of 1976, 17 U.S.C. § 301(a), and that plaintiffs have not satisfied the requirements for a claim under ...