Appeal from the Circuit Court of McHenry County. No. 10-LA-167 Honorable Michael T. Caldwell, Judge, Presiding.
The opinion of the court was delivered by: Justice Zenoff
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hudson and Spence concurred in the judgment and opinion.
¶ 1 Plaintiff, Karen Trannel, individually and on behalf of her minor daughter, M.M.T., appeals from an order of the circuit court of McHenry County granting summary judgment in favor of defendant, Prairie Ridge Media, Inc. In this appeal, the question we must answer is whether defendant is liable for damages under the Right of Publicity Act (Act) (765 ILCS 1075/1 et seq. (West 2010)) for publishing a photograph of plaintiff and her daughter on the cover page of a "media kit" used to generate advertising revenue for McHenry County Living, a magazine "celebrating the good life here in McHenry County." For the reasons that follow, we affirm the trial court's judgment in part, reverse in part, vacate in part, and remand for further proceedings.
¶ 3 The facts are not in dispute. Defendant publishes McHenry County Living magazine (the magazine) six times a year. The magazine provides information concerning local people, events, and businesses. Fewer than a hundred people subscribe to the magazine for a fee. Otherwise, all of the revenues are generated from advertising. Defendant delivers the magazine, at no charge, to 20,000 homes with household incomes in excess of $75,000 and to hundreds of businesses, including those of its advertisers. People can pick up the magazine free of charge at these businesses. Defendant hopes that people will keep the magazine on their coffee tables, thus increasing the number of times they would see the advertisements.
¶ 4 The spring 2009 issue announced a gardening contest that was open to McHenry County residents. Contestants were required to register online and to submit three photographs of their gardens along with descriptions of the gardens and how the contestants used them. Plaintiff entered the contest. Plaintiff then received an email from defendant notifying her that she was a finalist in the contest. The email also notified plaintiff that "[o]ur photographer Robin Pendergrast will be contacting you *** to set up a photo shoot at your [home]." The photo shoot resulted in Pendergrast taking the photograph of plaintiff and her daughter that is the subject of this litigation (subject photograph). The subject photograph depicts plaintiff and her daughter smiling at the camera in a garden of what appear to be black-eyed Susans. Neither defendant nor Pendergrast, who was an independent contractor rather than defendant's employee, obtained a written release for the use of the subject photograph.
¶ 5 On October 8, 2009, defendant notified plaintiff in an email that she was a winner in the contest. The email advised that "[t]he [a]utumn issue is chock-full of great photos and details about the gardens" and would be "all around the county" in about a week. The autumn 2009 issue contained a photo of each winner's garden with a smaller photo inset of the winners themselves and a brief caption explaining the gardens. The photo inset accompanying the photo of plaintiff's garden was the subject photograph.
¶ 6 Following the publication of the autumn 2009, defendant prepared the "McHenry County Living Media Kit & Editorial Calendar 2010," which the parties refer to as the "media kit." Defendant, through its salespeople (who are not defendant's employees), gave the media kit to various advertisers, some of whom were current advertisers, for the purpose of generating additional advertising revenue. The media kit was four pages. The first, or cover, page bore the magazine's logo. Beneath the logo appeared the words "Media Kit & Editorial Calendar 2010." To the right of the logo was a picture of a pink flower. Above the logo were two photographs. The photograph on the left side of the page depicted three young children doing crafts. The children were smiling at the camera and were recognizable. The photo on the right side of the page depicted a crowd of people sitting in lawn chairs and on blankets on the ground around a gazebo or a bandstand in a park, obviously partaking in a community event. Some of the people in the right-side photograph were recognizable. There were three photos in the middle of the page. The left photo depicted diners under umbrellas, on a patio overlooking a large body of water. None of the people was recognizable. The middle photo was the subject photograph. The right photo depicted three children in winter jackets, walking on a suspension bridge. Two of the children had their backs to the camera, but the third child's face was in profile and could be recognized. Three more photos appeared at the bottom of the page. The left photo depicted a clearly recognizable man working with pastry dough. The middle photo depicted five young women, all clearly recognizable, pushing a bed in the 2008 Harvard Milk Day races. The right photo depicted two cyclists, one facing the camera and recognizable. Other than the logo and the words "Media Kit & Editorial Calendar 2010," the only writing appeared directly beneath the subject photograph. It read: "Celebrating the good life right here in McHenry County through our beautiful bimonthly magazine, our weekly e-newsletter-and every day online!" (Emphasis in original.)
¶ 7 The second page of the media kit described the magazine, its readership, its circulation, and how to access the magazine in electronic form. The page was adorned with three photographs: the first was the face of a young girl sipping a drink; the second depicted a head-and-shoulders shot of a couple smiling at the camera; and the third was a photo of a clock tower in a garden of tulips. The third page highlighted the magazine's features and included six color photos, in which people were recognizable. The fourth page contained the magazine's advertising rates and "specs."
¶ 8 Carla Housh, defendant's president and the magazine's publisher/editor, testified at her deposition that the media kit was a "sales tool," an "information medium" that was provided to potential and current advertisers to inform them of the magazine's advertising rates. Because the salespeople were not defendant's employees, defendant did not keep a record of everyone to whom the media kit was distributed. However, in response to the trial court's directive to produce a list, defendant named 31 advertisers, 27 businesses and 4 individuals, that might have received the media kit. There is no evidence in the record as to whether any of the 31 advertisers received a kit containing the cover page with the subject photograph or whether any of the 31 purchased advertising because of the subject photograph.
¶ 9 Plaintiff learned that the subject photograph had been included in the media kit when a friend notified her of the fact on January 12, 2010. On January 14, 2010, plaintiff complained to defendant about the use of the subject photograph. The record shows that at some time following January 14, but before plaintiff's cease-and-desist letter of January 26, 2010, defendant stopped using the cover page.
¶ 10 On May 4, 2010, plaintiff filed a complaint. Count I was for "unauthorized appropriation of likeness," and count II alleged a violation of the Act. Plaintiff requested injunctive relief, actual damages, punitive damages, and attorney fees and costs. Both parties filed motions for partial summary judgment. However, on April 13, 2012, both parties then filed cross-motions for summary judgment. On June 15, 2012, the trial court granted summary judgment in favor of defendant and denied plaintiff's motion for summary judgment. This timely appeal followed.
¶ 12 Plaintiff contends that she is entitled to actual damages, punitive damages, and attorney fees, costs, and expenses under the Act, because defendant used her and her daughter's identities for commercial purposes without obtaining previous written consent. Although plaintiff conceded at her deposition that the first publication of the subject photograph, in connection with the garden contest, was not in issue, she now contends that, if we determine that the first publication was for commercial purposes rather than a news article, it also was a violation of the Act. Defendant maintains that summary judgment was properly granted in its favor, because the magazine and the media kit were a single "commercial device" employed to generate advertising revenue. Defendant's theory, adhering to the trial court's findings in its written order, seems to be that, despite two ...