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Ainsworth v. Century Supply Co. - 295 Ill. App. 3d 644, 230 Ill. Dec. 381, 693 N.E.2d 510 (1998)

Rule:

It is proper to vindicate a plaintiff's right to the use of his image against a deliberate violation, even if the plaintiff cannot prove actual damages. The courts in Illinois have long presumed that nominal damages are available for this tort.

Facts:

Plaintiff Ainsworth was hired to install tile at the house Tom Parks was building. Parks was the sales manager for Century, a company that sold 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 to which the plaintiff consented to appear in the video. In 1994, Century hired TCI to create a television commercial. An insert from the commercial was taken from the instructional video plaintiff participated in and the commercial with plaintiff's image was aired a number of times. 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. Eventually, plaintiff sued defendants for using his image in the television commercial and invasion of privacy by appropriating his likeness. The circuit court dismissed his complaint and  granted summary judgment in favor Century for failure to prove damages. Plaintiff appealed.

Issue:

Was the dismissal proper?

Answer:

No

Conclusion:

The court reversed the circuit court's judgments. The court remanded the case for further proceedings consistent with the disposition. The court held that the trial court erroneously dismissed the appropriation count because the plaintiff sufficiently alleged that his image was used without consent in the television commercial and that the TCI received income due to the commercial; and the use of the plaintiff's likeness was deliberate and central to the advertising endeavor. The court found that summary judgment was erroneously granted to Century on the issue of actual and punitive damages because the law presumed that damages existed with the allegation of an infringement of a legal right, Century received a commercial benefit from its advertising and the plaintiff demonstrated the existence of evidence from which the finder of fact could infer that Century acted with malice or reckless indifference to the plaintiff 's rights.

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