placing people before the public. See Douglass v. Hustler Magazine, 769 F.2d 1128, 1137 (7th
Cir.1985); Lovgren, 534 N.E.2d at 990.

Defendants nonetheless contend Plaintiff has failed to state a claim because she has not
alleged an identity between herself and the picture accompanying the published statements. The
Court disagrees. Plaintiff need not allege such an identity; rather, Plaintiff must allege that
Defendant placed her, and not some other person, before the public. Plaintiff claims she received
lewd responses to the advertisement at her personal address which was listed in the magazine. A
valid address may identify a person more specifically than just a name, which often identifies not
just one but several people. See McNutt v. New Mexico State Tribune Co., 538 P.2d 804, 809 (N.M.
App. 1975). At the very least, those who sent letters to Plaintiff were able to identify her.
Plaintiff's allegations, therefore, show Defendants did place her before the public. Furthermore,
a reader of Defendants’ magazine could reasonably assume that the woman named in the
advertisement, Plaintiff, is the woman depicted in the advertisement. Nothing suggests otherwise.

With respect to the second element, outrageousness, Plaintiff alleges the published words
and picture were “lewd,” “offensive,” and “derogatory.” The advertisementimputes Plaintiff with
the desire to commit adultery and to be used and abused as a sex object. In Lovgren, the defendant
disparaged plaintiff's financial integrity by making others believe he would sell property he had
no intention to sell. 534 N.E.2d at 420. In Kolegas, the defendant implied that a mother and son had
deformed heads and stated that the mother was so unattractive that her husband would only have
married her in a shotgun wedding. 607 N.E.2d at 210. In both cases, the Illinois Supreme Court
held that a trier of fact could find defendants’ statements outrageous. Id.; Lougren, 534 N.E.2d at
420. Likewise, the statements in this case also could be found outrageous.

Finally, as to the requirement of actual malice, the third element, Plaintiff alleges

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has intrinsic value. Accordingly, Plaintiff states a claim for the appropriation tort in Count II of
her complaint.
Ill. MOTION TO STRIKE

Rule 12(f) motions are not favored and will be denied unless the language in the pleading
has no relation to the controversy and is unduly prejudicial.” Simmons v. John F. Kennedy Medical
Ctr., 727 F. Supp. 440, 442 (N.D. IIl.1989). Plaintiff's complaint clearly alleges facts that are entirely
relevant to the dispute. Furthermore, Defendants’ arguments in favor of striking are not specific
and merely attack the complaint as repetitive, immaterial, and scandalous. As such, Defendants
have failed to persuade the Court that Plaintiff's complaint should be stricken.

IV. CONCLUSION
Defendants’ motion to dismiss is granted as to Count III, and denied as to Counts JI and IV.

Additionally, Defendants’ motion to strike is denied.

Cin &

AMY J. SIEVE, DISTRICT JUDGE

IT IS SO ORDERED.

DATED: January 10, 2003


common law rights as they existed before the effective date of this Act.” 765 ILCS 1075/60.
Therefore, the Court examines both the statutory language and common law to determine the
scope of the appropriation tort.

The Act provides that “[a] person may not use an individual's identity for commercial
purposes during the individual's lifetime without having obtained previous written consent from
the appropriate person.” 765 ILCS 1075/30(a). This branch of the privacy doctrine is designed to
protect a person from having his name or image used for commercial purposes without consent.
See Douglass, 769 F.2d at 1138 (finding defendant appropriated the value of model's likeness when
it published nude pictures of her without consent). According to the Restatement, the purpose of
this tort is to protect the “interest of the individual in the exclusive use of his own identity, in so
far as it is represented by his name or likeness." Restatement (Second) of Torts § 652C, cmt. a
(1977). See also Dwyer v. American Exp. Co., 652 N.E.2d 1351, 1355 (Ill. App. 1st Dist. 1995).

To state a claim for relief under the common law appropriation tort, “it [was] vital that
some ‘appropriation’ be alleged.” Hooker v. Columbia Pictures Industries, Inc.,551 F.Supp. 1060, 1061
(N.D. Ill. 1982). Plaintiff alleges Defendants used her name for commercial gaini.e., in conjunction
with the sexually explicit words and picture, to increase its magazine sales. Defendants respond,
as they did to the false light charge, that Plaintiff has not alleged an identity between herself and
the picture accompanying the personal advertisement. But as the Court has already noted supra,
this argument lacks merit. Defendants also contend Plaintiffs name had no value to appropriate,
and that “until the value of a name has in some way been appropriated, there is no tort.” Id.
quoting Restatement (Second) of Torts, § 652C, cmt. c (1977).

While the Illinois state courts have not specifically addressed this question, other states

have divided over whether an appropriation can occur when a plaintiff's identity, prior to a

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Defendants published the personal advertisement with reckless disregard and that “malice is the
gist of this action.” (Compl. 30.) In federal court, such bare-bones notice pleading is acceptable.
Therefore, Plaintiff states a claim for false light invasion of privacy.

B. Publicity given to a private life (Count III)

“One who gives publicity to a matter concerning the private life of another is subject to
liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would
be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”
Restatement (Second) of Torts § 652D (1977). Defendants argue that a cause of action for publicity
given to a private life can only arise when a defendant has publicized true facts, and not, as
Plaintiff alleges in this case, when the defendant has publicized falsehoods. There is merit to this
contention. Section 652D “provides for tort liability . . . for publicity given to true statements of
fact.” Restatement at 383. Thus, to the extent the personal advertisement contained wholly false
information, this theory provides no recovery. See e.g., Ritzmann v. Weekly World News, Inc., 614 F.
Supp. 1336, 1340 (N.D. Tex. 1985). Since Plaintiff alleges the statements Defendants published here
are false, she has not stated a claim for publicity given to a private life. As such, Count III is
dismissed.

C. Appropriation of name and likeness (Count I)

Prior to 1999, the appropriation tort was solely a common law creation. The Restatement
(Second) of Torts § 652C (1977) stated that “[o]ne who appropriates to his own use or benefit the
name or likeness of another is subject to liability to the other for invasion of his privacy.” In 1999,
though, the Illinois legislature passed the Right of Publicity Act, 765 ILCS 1075/1 et. seq. (the
“ Act’), supplanting the common law appropriation tort. Villa v. Brady Publishing, No. 02 C 570,

2002 WL 1400345, at*3-4 (N.D. Ill. Jan. 27, 2002). However, the Act does “not affect an individual's

-5-



reputation for woodcarving when using his name. 551 F, Supp. at 1062. The district court defined
appropriation as “more than the mere coincidental use of a name that happens to be the same as
that of the plaintiff.” Id. In another case decided after Hooker, a martial artist's claim of
appropriation failed when he could not show, inter alia, that his identity had commercial value.
Pesina v. Midway Mfg. Co., 948 F. Supp. 40, 42 (N.D. Ill. 1996), citing Bi-Rite Enter.’s, Inc. v. Button
Master, Ine., 555 F. Supp. 1188, 1198-99 (S.D.N.Y 1983). While Bi-Rite does not directly rely on
Illinois law, its adoption by the Pesina court, combined with the court’s statements in Hooker,
militate in favor of requiring that a plaintiff show his or her identity has some unique value that
can be appropriated.

However, both Hooker and Pesina are district court decisions that predate the Act.
Significantly, the Act makes no effort to limit the tort to instances where a plaintiff can demonstrate
intrinsic value; it simply protects an individual’s identity. Indeed, an individual is broadly
defined as meaning “any living or deceased natural person, regardless of whether the identity of
that individual has been used for a commercial purpose during the individual's lifetime.” 765 ILCS
1075/5. Likewise, an identity encompasses “any attribute of an individual that serves to identify
that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name,
(ii) signature, (ji) photograph, (iv) image, (v) likeness, or (vi) voice.” Id. Nowhere does the Act
require an identity to have commercial value. To the contrary, the Act appears to cover all
individuals, whether or not their identities have been used commercially.

This Court therefore finds the Colorado approach, when considered in conjunction with
the text of the Illinois statute, more persuasive, particularly since the case at bar raises only issues

of personal damages, not commercial damages. Therefore, Plaintiff need not allege that her name


© Mimite Order Form (06/97)

United States District Court, Northern District of Illinois

nae asieeate tude William J. Hibbler oa Veanetained Amy J. St. Eve
CASE NUMBER 01 C 8468 DATE January 10, 2003
CASE Villalovos v. Sundance Associates, Inc., et al.
TITLE

briefly the nature of the motion being presented.]

{In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state

OOFRCP4(m) OGeneral Rule 21 LJ FRCP41(a)(1) O FRCP41(a)(2).

a.m.

(1) «ox (For further detail see order attached to the original minute order]

MOTION:
Defendants’ Motion to Dismiss Pursuant to F.R.C.P. 12(b)(6), or in the Alternative, to Strike Pursuant to
E.R.C.P. 12(f)
DOCKET ENTRY:
(1) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due__
@) a Answer brief to motion due, . Reply to answer brief due.
4) o Ruling/ Hearing on setfor____at
(5) Oo Status hearing [held/continued to] [set for/re-set for] on set for_____at
(6) O Pretrial conference [held/continued to] [set for/re-set for] on setfor___ at
(7) QO Trial [set for/ re-set for] on at
(8) im [Bench/Jury trial] [Hearing] held/continued to at
(9) oO This case is dismissed [with/without] prejudice and without costs [by /agreement/ pursuant to]

(10) Ml [Other docket entry] Defendants’ motion to dismiss (#2-1) is GRANTED in part, and DENIED in part.
Count III is dismissed while Counts II and IV stand. Furthermore, the Court grants Plaintiff’s request
to voluntarily dismiss Count]. Finally, Defendant's motion to strike (#2-2) is DENIED. Plaintiff shall
file a First Amended Complaint by January 31, 2003. Status hearing set for February 10, 2003, at 9:15

No notices required, advised in open
court.

No notices required. number of notices

Notices mailed by judge's staff.
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Notified counsel by telephone. AN | Sed 003

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docketing deputy initials

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Copy to judge/ magistrate judge.

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courtroom

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defendant's use, has no commercial value. The Utah Supreme Court requires that a plaintiff's
identity have intrinsic value. Cox v. Hatch, 761 P.2d 556, 564 (Utah 1988). In Cox, a postal employee
who posed for a photo with Senator Orrin Hatch could not prevent Hatch, under an appropriation
theory, from using the photo in campaign advertisements. Id. The Utah court reasoned that
intrinsic value cannot “be shown just because [a defendant] may have obtained some benefit by
using the [plaintiff's identity] when the benefit is the same as [defendant] would have had from
using the likeness of a number of other[s}.” Id.

In contrast, the Colorado Supreme Court rejects the requirement of intrinsic value, on the
basis that when a plaintiff alleges damage to her commercial interests, then requiring that her
identity have some initial value may make sense; however, when a plaintiff alleges emotional
damages, initial value is not necessarily relevant. Joe Dickerson & Assoc., LLC v. Dittmar, 34 P.3d
995, 1002 (Colo. 2001). In Dittmar, defendant published, in his investigation agency’s regular
newsletter, the plaintiff's name, likeness, and a narrative about how defendant had secured
plaintiff's prosecution for fraud. Id. at 997. The Colorado court reversed a lower court decision
that had denied relief to plaintiff due to her failure to allege that her identity had value, holding
that “[w]e do not require the plaintiff, who seeks only personal damages, to prove the value of her
identity.” Id. at 1002. Indeed, the court explained, “[a] plaintiff whose identity had no commercial
value might still experience mental anguish based on an unauthorized use of her name and
likeness,” and few courts require a plaintiff to show the value of her identity to recover for mental
suffering. Id.

The Illinois appropriation tort, as so-far recognized in this district court, is more in line with
Utah’s property-rights oriented approach. For example, in Hooker, supra, a famous woodcarver's

claim of appropriation failed because the defendant did not avail itself of the woodcarver’s

-7-


entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Hartford
Fire Insurance Co. v. California, 509 U.S. 764, 125 L. Ed. 2d 612, 113 S, Ct. 2891 (1993). This Court
must construe the present pleadings liberally in compliance with the notice pleading provision of
the federal rules. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 US.
163, 168, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993), However, this Court need not stretch the
allegations beyond their sensible and reasonable implications. Chan v. City of Chicago, 777 F.Supp.
1437, 1440 (N.D. II. 1991).

The Restatement (Second) of Torts § 652A (1977) recognizes four branches of the invasion
of privacy tort. Plaintiff has alleged three: publicity placing a person ina false light, publicity given
toa private life, and appropriation of name and likeness. Defendants move to dismiss each cause
of action, contending Plaintiff has failed to state a claim.

A. Publicity placing a person in a false light (Count IV)

To state a cause of action under Illinois law for publicly placing another in a false light, a
plaintiff must allege three elements: first, that defendant caused plaintiff to be placed before the
public in a false light; second, that the false light in which plaintiff was placed was highly
outrageous; and third, that defendant acted “with actual malice, that is, with knowledge that the
statements were false or with reckless disregard for whether the statements were true or false.”
Kolegas v. Heftel Broadcasting Corp., 607 N.E.2d 201, 209-10 (Ill. 1992); Lougren v. Citizens First Nat'l
Bank of Princeton, 534 N.E.2d 987, 989 (IIL. 1989).

Plaintiff satisfies the first element by alleging that Defendants published without consent,

“slanderous,” and

ina personal advertisement within a nationally distributed magazine, “untrue,
“false” statements about Plaintiff’s sexual desires and wants and listed her first name, last initial,

and full postal address. Publication in a magazine or newspaper is a quintessential method for

“3+



nationwide issue #92 of LG Looking Glass, a hard-core pornographic magazine. The issue in

question contained a personal advertisement that included a photograph of a woman, below which

appeared the following copy:
Submissive married woman seeks weekend releases with groups of well hung black
gentlemen. Totally insatiable white wife will do absolutely anything I’m asked to
do. [The advertisement then sets forth several graphic examples of what the subject
is willing to do.] Use me, abuse me, strip me in public, share me with your friends,
then drive me home to my husband when the weekend is done. [The advertisement
concludes with a first name, last initial, and home address —all in bold type.]

The first name, last initial, and full address are Plaintiff's. The woman in the photograph
is not Plaintiff, though. Plaintiff alleges Defendants, with malice, recklessly and with wanton
disregard published the above advertisement, which Plaintiff characterizes as “lude, offensive,
derogatory, untrue, slanderous, and evil.” (Compl. 113). Plaintiff also alleges Defendants’ use
of her name helped sell its magazines. Plaintiff claims she suffered severe damages when, as a
result of the advertisement, strangers sent “astonishing, lude, [and] offensive” communications to
her at her home address.

Il ANALYSIS

A motion to dismiss under Rule 12(b)(6) should test the sufficiency of the complaint rather
than address the merits of the case. This Court must construe all allegations in the complaint in
a light most favorable to the plaintiff, taking all well-pleaded facts and allegations within the
complaint as true. Bontkowski v. First Nat. Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). Because
Plaintiff's allegations are taken as true, Defendant must meet a high standard in order to have the
complaint dismissed for failure to state a claim upon which relief may be granted. Indeed, the

allegations of a complaint should not be dismissed for failure to state a claim “unless it appears

beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would

-2-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION i)
TONYA VILLALOVOS, my YAN 13 2603
)
Plaintiff, )
) NO. 01.8468, ay,
v ) . -
) JUDGE WILLIAM J. HIBBLER
)
SUNDANCE ASSOCIATES, INC,, )
THE ODYSSEY GROUP, )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Tanya Villalovos, a citizen and resident of Illinois (“Plaintiff”), alleges Defendants
Sundance Associates, Inc., The Odyssey Group, both believed to be California corporations,
(“Defendants”), published “lude” and “scandalous” statements about her without her knowledge
orconsent. Plaintiff filed this diversity lawsuit seeking relief under three branches of the invasion
of privacy tort: appropriation of name and likeness (Count II); publicity given to a private life
(Count III); and publicity placing a person in a false light (Count IV).' Defendants have moved
to dismiss Plaintiff's complaint for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), or alternatively, to strike the complaint pursuant to Rule 12(f). For the reasons
set forth below, Defendants’ motion to dismiss is granted in part and denied in part, and the
motion to strike is denied.

I. BACKGROUND
Plaintiff alleges the following facts in her complaint and fleshes out many of them in her

Response to Defendants’ motion. During June of 2001, Defendants published and distributed

‘Plaintiff voluntarily dismissed Count I of her complaint, alleging intrusion upon
seclusion.

IA