Use of Photo on Book Cover Could Violate Right of Publicity

This posting was written by William Zale, editor of CCH Advertising Law Guide.

An appropriation of likeness claim brought by a waitress under the Illinois Right of Publicity Act—based on the unauthorized use of her photographic image on a book cover—was not barred by the Act’s exceptions for artistic or creative expression or by the First Amendment, the federal district court in Peoria, Illinois has ruled.

The claim was brought by Kimmie Jo Christianson, a Peoria waitress, who agreed to have her photograph taken for a Fortune magazine article on single mothers supporting their families on low-wage jobs. Christianson gave her consent to have the photograph used only in the Fortune article, which appeared in the May 1986 issue.

In 2001, however, the photograph appeared on the cover of Nickel and Dimed: On (Not) Getting By in America, a best-selling book written by Barbara Ehrenreich. Five years later, Christianson brought suit against the book’s publisher and the author, seeking damages under the Right to Publicity Act (765 ILCS 1075).

Contrary to the defendants’ contention, the case did not fall within the statutory exception for creative works because the book did not attempt to portray, describe, or impersonate the waitress, the court reasoned. Likewise, the case did not fall within the statutory exemption for use of an individual’s identity for noncommercial purposes.

The right of publicity can conflict with the First Amendment when an individual’s identity is used by another in an artistic or creative expression. However, the First Amendment did not bar the waitress’s claim because the book and photo did not bear a reasonable relationship to one another, the court held.

The purpose of the image was not to reflect the subject matter of the book, but instead to reflect the ideas of the book in such a way that it would catch the eye or a prospective customer and lead to a possible sale, according to the court.

The subject matter of the book was the author’s personal journey from one part of the country to another, working at various low-paying jobs. The photograph and the book both concerned the plight of the working poor in America, but did not have any overlapping subject matter, in the court’s view.

At no point was the waitress, her photo, or the restaurant where she appeared ever part of the subject matter of the book.

The decision is Christianson v. Henry Holt and Company, LLC, No. 06-cv-1156, filed June 29, 2007. It appears at CCH Advertising Law Guide ¶62,619.