Losing the Big Picture: An Argument for Preserving IRPA Rights for Emotional Damages

created common law rights to privacy, and several other states codified the right through legislation. 7 Illinois appellate courts recognized the tort of appropriation of likeness in 1952, 8 and continued to do so through the 1950s and 1960s. 9 The Illinois state legislature even enacted a statute of limitations for violations of privacy rights in 1967. 10 Finally, the Illinois Supreme Court recognized a general right of privacy in 1970 in Leopold v. Levin. 11 Illinois courts continued to develop the common law form of appropriation of likeness throughout the 1970s, 1980s, and 1990s. 12 The Seventh Circuit recognized the right of publicity in Douglass v. Hustler Magazine, Inc., a case where actress Robyn Douglass sued Hustler Magazine for publishing nude photos of her without her consent. 13 Judge Posner, who wrote the majority opinion, held that "forced to guess, we guess that Illinois would recognize a 'right of publicity,'" even though past Illinois case law for appropriation of likeness had been limited to advertisements and had not specifically recognized the right of publicity. 14 The two causes of action were thought to be distinct: appropriation of likeness was conceptually and doctrinally associated with tort actions.In contrast, the right of publicity was associated with intellectual property rights.The common law right in Illinois had the following characteristics.First, Illinois Courts required the appropriation to be nonconsensual. 15 Second, though originally limited to advertisements, later cases were not strictly limited to such situations. 16 Third, because the tort was construed as being for the Convergence of the Right of Publicity, Unfair Competition and Trademark Law, 23