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Ainsworth v. Century Supply Co.

April 15, 1998


Appeal from the Circuit Court of Du Page County.

The opinion of the court was delivered by: Justice Inglis


Honorable Robert E. Byrne, Judge, Presiding.

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 ...

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