I need legal advice about an event that happened with my husband.
It happens that an American company of greeting and thank you cards, issued unauthorized picture of my husband in a photo montage totally embarrassing.
My husband and I are renowned lawyers in the state of São Paulo and all Brazil, our office is on the website site and acts of advocacy in the area of employment law and business law. The thank you cards are from an American company in Chicago and Im wondering if the situation would be a possible law suit. Im wondering also what the cost of this demand.. Still, such an action would have to be moved in the state of Illinois?
I await your orientations, already thank you very much.
1 Answer from Attorneys
To answer your first question, Illinois does recognize the tort of unauthorized likeness. The Illinois Right of Publicity Act (Illinois Act) prohibits the use of a person’s identity “for commercial purposes . . . without having obtained previous written consent.”
“Commercial purpose” is defined as the “public use or holding out of an individual’s identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods or services, or (iii) for the purpose of fundraising.” Although you have not been specific about what occurred, it appears the greeting card company did use your husband's photograph for some sort of promotional purpose, thereby violating the Illinois Act.
A person who is found to violate the Illinois Act is liable for the greater of either “(1) actual damages, profits derived from the unauthorized use, or both; or (2) $1000.”
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Your second question is very interesting. Venue and jurisdiction are certainly proper in Illinois, because that's where the tort occurred. You could argue that bringing suit is proper in Brazil because, under United States law, the American company subjected themselves to the jurisdiction of Brazilian courts by committing a tort involving Brazillians. I am also wondering if the company intentionally sent some cards to Brazil, which will support your argument that the company subjected themselves to jurisdiction there.