The opinion of the court was delivered by: Robert W. Gettleman, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Tally Collier has filed a seven-count complaint against entertainment personality Eddie Murphy and a number of entertainment production companies and related persons, claiming that he was the inspiration for a "foamation" cartoon character called "Sanchez" in a cartoon situation television comedy known as "The PJs" that ran on FOX network television from January 1999 until May 2001. Plaintiff asserts claims for violation of the Illinois Right of Publicity Act, 765 ILCS 1075/30 (Count I), common law invasion of privacy (Count II), unjust enrichment (Count III), negligent infliction of emotional distress (Count IV), intentional infliction of emotional distress (Count V), defamation (Count VI), and for an accounting (Count VII). Defendants have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) which, for the reasons discussed below, is granted.
The facts alleged in the complaint must be taken as true for purposes of the instant motion, Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). Plaintiff claims that he featured prominently in a documentary video produced at the Robert Taylor Homes public housing project in Chicago. Plaintiff uses an artificial voice box to speak, often uses a cane to help him walk, and has distinct facial characteristics. The documentary film maker, Daryl Murphy, sent a copy of his video to entertainment personality Oprah Winfrey in April 1998 to promote the idea of a show based on his documentary. He never received a response from Ms. Winfrey.
Approximately nine months later, in January 1999, FOX Television began broadcasting The PJs. All of the named defendants had various roles in creating, producing and marketing The PJs television show. The PJs is a comic cartoon show set in a fictitious housing project known as Hilton-Jacobs, showing life in the projects. Plaintiff claims that there are a large number of similarities between the material on Daryl Murphy's video and the characters and scenes from The PJs, and alleges on information and belief that defendants pirated the creative ideas for The PJs from Daryl Murphy's video. Among those ideas were the "identifiable likenesses" of many of the individuals depicted on the video, including that of plaintiff
Specifically, plaintiff alleges that he is the model for a prominent character on The PJs known as Sanchez who, like plaintiff, uses a voice box to speak, has "similar head-neck placement," facial characteristics, build, and the use of a cane to walk. They both wear baseball caps with writing above the brims and had wives who are deceased and were cremated. Plaintiff claims that many people have identified him as the Sanchez character from The PJs, and that he has suffered emotional distress from PJs episodes in which an urn containing Sanchez' wife's ashes was destroyed, Sanchez suffered "bodily dismemberment," Sanchez was pushed or fell many stories down an elevator shaft, and suffered "crushing blows," and committed various crimes.
For purposes of defendants' motion to dismiss only, defendants accept these allegations as true, but argue that plaintiff has failed to state a claim under any of his seven counts. The court agrees.
Standard under Rule 12(b)(6)*fn1
The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule on its merits. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court accepts the allegations of the complaint as true and views the facts in the light most favorable to the plaintiff Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996).
Count I — Illinois Right of Publicity Act.
As discussed above, the court will assume for purposes of the instant motion that defendants modeled the Sanchez character after plaintiff without his permission. The Illinois Right of Publicity Act, 765 ILCS 1075/30(a), prohibits the use of a person's identity "for commercial purposes during the individual's lifetime without having obtained previous written consent." "Commercial purposes" is defined as "the public use or holding out of an individual's identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods or services, or (iii) for the purpose of fundraising." 765 ILCS 1075/5.
This does not end the inquiry, however. Recognizing the serious First Amendment implications inherent in regulating artistic and creative expression, the Act specifically excludes such ...