## Facts

- Century Supply Co. (doing business as Century Tile) sold ceramic tile; Tom Parks was Century’s sales manager.
- Charles H. Ainsworth was a tile installer hired to install tile at Parks’s home.
- In October 1993, Parks asked Ainsworth to allow videotaping of Ainsworth installing tile so Century could distribute an instructional video to Century’s customers; Ainsworth agreed.
- Century completed the instructional video and began providing it to the public.
- In 1994, Century hired TCI of Illinois, Inc. (an advertising/production company) to create a television commercial for Century.
- TCI created a commercial format with space for short “insert” clips; one insert used footage from the instructional video showing Ainsworth installing tile.
- The television commercial aired many times; Ainsworth appeared for only a few seconds and conceded there was nothing objectionable about his appearance or the way he installed tile.
- After seeing the commercial, Ainsworth contacted Century and objected that he had not consented to appear in a television ad; he gave Century a short time to respond.
- Ainsworth asserted Century initially denied he appeared in the commercial, and the commercial continued to air after his complaint.
- Ainsworth sued Century and TCI asserting, among other theories, invasion of privacy by appropriation of likeness (and related right-of-publicity claims) and sought punitive damages and equitable relief.
- The trial court dismissed the appropriation count against TCI on the theory that TCI did not “commercially benefit” from the use, and it granted summary judgment to Century on the ground Ainsworth had not shown actual damages.
- Ainsworth appealed.

## Issues

1. Whether Ainsworth’s consent to be filmed for an instructional customer video necessarily authorized Century’s later use of the footage in a broadcast television commercial.
2. Whether an appropriation-of-likeness/right-of-publicity plaintiff must show actual, provable economic loss to survive summary judgment, or whether non-economic harm (including emotional distress and dignitary injury) can constitute compensable injury.
3. Whether punitive damages may be pursued where evidence could support a finding that defendants continued the unauthorized commercial use after the plaintiff objected.
4. Whether a complaint states an appropriation claim against an advertising producer (TCI) even if the producer is not alleged to be the ultimate recipient of the commercial gain from the advertisement.

## Decision

- The appellate court reversed the dismissal of the appropriation claim against TCI and reversed summary judgment for Century, and it remanded for further proceedings.
- As to Century, the court held summary judgment was improper because the record could support compensable injury beyond direct economic loss, and because fact disputes existed concerning the effect and scope of Ainsworth’s consent and the consequences of the unauthorized television use.
- The court also held that the trial court prematurely foreclosed punitive damages; evidence that the commercial continued to run after Ainsworth objected could support a finding of reckless indifference or other culpable mental state, making punitive damages a fact question.
- As to TCI, the court held the complaint adequately alleged appropriation by asserting TCI used Ainsworth’s likeness in producing a commercial advertisement without his consent; dismissal was improper merely because TCI argued it did not “commercially benefit” in a direct-profit sense.

## Legal Principles

- Unauthorized use of a person’s identity or likeness in advertising can support liability under Illinois theories of invasion of privacy by appropriation and the right of publicity.
- Consent is limited to the use for which it is given; whether permission for one context (a customer instructional video) extends to a materially different context (television advertising to the general public) is commonly a fact question.
- Compensable injury for privacy-based appropriation is not limited to measurable financial loss; emotional distress and injury to dignity may be recoverable even when economic damages are uncertain.
- Punitive damages may be available where the defendant’s conduct supports a finding of willful misconduct or reckless indifference to the plaintiff’s rights; continuation of the challenged use after notice can be evidence relevant to that mental state.
- An advertising producer can be a proper defendant for appropriation when it uses the plaintiff’s likeness in the course of creating a commercial advertisement; the pleading need not show the producer was the ultimate recipient of the ad’s economic gains.

## Conclusion

The Illinois Appellate Court, Second District, held that Ainsworth’s claims could proceed because consent to appear in an instructional customer video did not, as a matter of law, authorize later broadcast advertising use, and the absence of proven economic loss did not defeat claims based on unauthorized commercial use of likeness; the court therefore reversed the dismissal of TCI and the summary judgment for Century and remanded, including on punitive-damages issues.


Ainsworth v. Century Supply Co., 693 N.E.2d 510 (1998)