## Facts

- Alphonse “Al” Capone died in 1947.
- Beginning in 1959, Desilu Productions and broadcasting partners produced and aired “The Untouchables,” a fictional television series depicting law-enforcement efforts against organized crime and portraying Capone’s criminal notoriety.
- Capone’s estate (through the administratrix) alleged defendants commercially exploited Capone’s “name, likeness and personality” and were unjustly enriched.
- Capone’s widow and son alleged invasion of their own privacy and mental suffering from the broadcasts, although they were not depicted or referenced in the programs.
- Plaintiffs sought damages and injunctive relief to stop further broadcasts.
- The federal district court (diversity jurisdiction applying Illinois law) dismissed the third amended complaint for failure to state a claim, and plaintiffs appealed.

## Issues

1. Whether Illinois law allows a deceased person’s relatives to recover for invasion of their own privacy based solely on broadcasts about the deceased when the relatives are not identified or depicted.
2. Whether Illinois law recognizes a post-mortem, transferable property right in a decedent’s “name, likeness and personality” enforceable by the estate through an unjust-enrichment theory.
3. Whether injunctive relief is available when the underlying substantive claims fail as a matter of state law.

## Decision

- The Seventh Circuit affirmed dismissal of the complaint for failure to state a claim.
- Illinois privacy law did not extend to permit the widow and son to sue for their distress based on portrayals of Capone where they themselves were not publicized.
- Illinois law did not recognize a post-mortem property right in Capone’s persona that would support the estate’s unjust-enrichment claim.
- Without a viable substantive right, the request for an injunction necessarily failed.

## Legal Principles

- In a diversity action, federal courts apply the forum state’s substantive law to determine whether a complaint states a cognizable cause of action.
- Under Illinois law as applied, the right of privacy is personal and does not support recovery by relatives for publications or dramatizations about a deceased person when the relatives are not themselves depicted or substantially publicized.
- Absent statutory or clear common-law recognition, Illinois law did not treat a decedent’s “name, likeness and personality” as a post-mortem property interest enforceable by the estate for commercial use in dramatized works.
- Equitable relief (including an injunction) requires an underlying actionable right; it cannot stand where the complaint states no substantive claim.

## Conclusion

The court held that Illinois law provided neither a derivative privacy claim for Capone’s widow and son nor a post-death property-based unjust-enrichment claim for his estate arising from fictionalized television portrayals, and it therefore affirmed dismissal of all claims, including the request to enjoin further broadcasts.


Maritote v. Desilu Prods., Inc., 345 F.2d 418 (7th Cir. 1965)