## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Trannel v. Prairie Ridge Media, Inc. , 2013 IL App (2d) 120725

Appellate Court Caption KAREN TRANNEL
, Individually and on Be half of Her Minor Daughter, M.M.T., Plaintiff-Appellant, v. PRAI RI E RI DGE MEDIA, I NC

. , Def endant- Appellee

.

District & N o. Second District Docke t No. 2-12-0725

Filed Marc h 29, 2013

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action seeking damag es under the Right of Publ i ci t y Ac t arising from defe ndant’s use of a photogr aph of plaintiff and h er d aughter, defe ndant did not viola t e the Act when it used the photogr aph in its publication about the winners of a g ar den contest, but the Act was violated when the photogr aph was used without plaintiff’s consent in a “media kit” distributed to potential adver tisers; howeve r, in the absenc e of proof of actua l damag es, plaintiff and her daughter wer e entitled to the statutory limitof $1,000 ea ch, and the denial of attorney fee s, costs and
expenses was vaca

ted and the cause was rema nded for a hearing on those issues.

Dec ision Under Review Appea l from the Circuit Court of McHe nry County
, No. 10-LA-167; the Hon. Michae l T. Caldwell, J udg e, pre siding.

J udg ment Affir med in part, re verse d in part, and va cate d in part; ca use re manded.Counsel on

Appea l Richard C. B alough and Chery l Danc ey Ba lough, both of Balough L aw Offic es, L L C, of Chicag o, for a ppellants.

Ronald A. DiCerbo, of McAndre ws, Held & Malloy
, Ltd., of Chicag o, for appellee

.

Panel J USTI CE Z ENOF F de livered the judgme nt of the cour t, with opinion.
J ustices Hudson and Spenc e conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff, Kar en Tra n n el
, i n d i v i du al l y and on behalf of her minor daughter, M.M.T.,
appea ls f rom an order of the circ uit court of McHe nry County granting summary judgme nt in favor of defe ndant, Prairie Ridge Media, Inc. In this appea l, the question we must answe r is whether defe ndant is liable for damag es under the Right of Publicity Act (Ac t) (765 I L CS 1075/1 et seq. (West 2010)) for publishing a photogr aph of plaintiff and her daughter on the

cover pag e of a “media kit” used to g ener ate adver tising reve nue for McH

enry County Living
, a mag azine “ce lebra

ting the g ood life here in McHe nry County .” For the rea sons that follow, we affirm the trial court’s judgment in part, rever se i n part , v ac ate in part, and rema nd for further proce eding s.

¶ 2 BA CKGROUND ¶ 3 The fac ts are not in dispute. Def endant publishes McH

enry County Living mag azine (the
mag azine) s i x times a year

. The mag azine provides information conce rning local people, events, and businesses. Fe wer than a hundred people subscribe to the mag azine for a fee

. Otherw ise, all of the reve nues are g ener ated from adver tising. Def

endant delivers the
mag azine, at no charg e, to 20,000 homes with household incomes in excess of $75,000 and
to hundreds of businesses, including those of its adver tisers. People can pick up the mag azine fre e of charg e at these businesses. Def endant hopes that people will keep the mag azine on their coff ee tables, thus inc rea sing the number of times they would see the adver

tisements. ¶ 4 The spring 2009 issue announce d a g arde ning contest that was open to McHe nry County residents. Contestants were re qu i red to reg ister online and to submit three photogr aphs of their g arde ns along with descriptions of the g arde ns and how the contestants used t h em

. Plaintiff enter ed the contest. P lainti ff t h en rec eived an email from defe ndant not ifying her that she was a finalist in the contest. The email also notified plaintiff that “[o] ur photogr apher Robin Pende rgrast will be contac ting you *** to set up a photo shoot at your [hom e].” The photo shoot resulted in Pendergrast taking the photogr aph of plaintiff and her daughter that

-2-is the subject of this litigation (subject photogr aph). The subject photogr aph depicts plaintiff

and her daughter smili ng at the came ra in a g arde n of what appea r to be black- eyed Susans. Neither defe ndant nor Pendergrast, who was an independe nt contra ctor rat h er than defe ndant’s employee, obta ined a written relea se for the use of thesubject photograph. ¶ 5 On October 8, 2009, defe ndant notified plaintiff in an email that she was a winner in the
contest. The email advised that “[t] he [a] utumn issue is chock- full of great photos and details about the g arde ns” and would be “all around the county” in about a wee k. The autumn 2009 issue contained a phot o of each winner’s gar d en wi t h a sm aller photo inset of the winners themselves and a brief caption explaining the g arde ns. The photo inset acc ompanying the photo of plaintiff’s g arde n was the subjec t photogr aph. ¶ 6 Following the publication of the autumn 2009, defe ndant p r ep a red the “McH enry

County L iving Media Kit & Editorial Calendar 2010,” which the parties ref er to as the “media kit.” Def endant, through its salespeople (who are not defe ndant’s employees)
, g ave the media kit
to various adver

tisers, some of whom wer e curr ent adver tisers, for the purpose of g ener ating additional adver

tising reve nue. The media kit was four pag es. The first, or cover , pag e bore the mag azine’s logo. Be neath the logo appea red the words “Media Kit & Editorial Calendar 2010.” To the right of the logo was a picture of a p i n k fl o we r. Above the logo wer e two photogr aphs. The photogr aph on the left side of the pag e depicted three young children doing

cra fts. The children wer e smili ng at the came ra and wer e rec ognizable. The photo on the right side of t he page depicted a crowd of people sitti ng in lawn chairs and on blankets on
t h e g round around a gazebo or a bandstand in a park, obviously partaking in a communit y event. Some of the people in the right-side photogr aph wer e rec ognizable. There wer e three photos in the middle of the pag e. The left photo depicted diners under umbrellas, on a patio overlooking a larg e body of water

. None of the people was rec ognizable. The middle photo

was t h e s ub

j ect photogr aph. The right photo depicted three children in winter jacke ts, walking on a suspension bridg e. Two of the children had their backs to the came ra, but the third child’s fac e was in profile and could be rec ognized. Three more photos appea red at the bottom of the pag e. The left photo depicted a clea rly rec ognizable man working with pastry doug h. The middle photo depicted five young women, all clea rly rec ognizable, pushing a bed in the 2008 Har

vard Milk Day rac es. The right photo depicted two cyclists, one f acing the

came ra and rec og nizable. Other than the logo and the words “Media Kit & Editorial Calendar 2010,” the only writing appea red direc tly beneath th e s ub ject photogr aph. It rea d: “Celebr ating the good l i fe ri gh t here in McHe nry County through our beautiful bimonthly
mag azine, our we ekly

e-ne wsletter–and eve ry day online! ” (Empha sis in original.) ¶ 7 The second pag e of the media kit described the mag azine, its rea dership, its circulation, and how to acc ess the mag azine in elec tronic form. The p age was adorne d with three photogr aphs: the first was the fac e of a young g irl sipping a dri n k ; the second depicted a head- and-shoulder s shot of a couple smili ng at the came ra; and the t h i rd wa s a photo of a clock to we r i n a g arde n of tulips. The third pag e highlighted the mag azine’s features and included six color photos, in which people wer e rec ognizable. The fourth pag e contained the
mag azine’s adve rtising r ates a nd “spec s.” ¶ 8 Carla Housh, defe ndant’s president and the mag azine’s publisher/editor, testified at her deposition that the media kit was a “sale s tool,” an “informa tion medium” that was provided

-3-to potential an d curr ent adver tisers to inform them of the mag azine’s adver tising rate s. Be cause the s alespe ople were not defe ndant’s employ ees, defen d an t did not keep a record of ever yone to whom the media kit was distributed. Howeve r, in response to the trial court’s direc tive to produce a list, defe ndant named 31 adver tisers, 27 businesses and 4 individuals, that might have rec eived the media kit. There is no evidenc e in the rec ord as to whether any of the 31 adver

tisers rec eived a kit containing the cover pag e with the subject photogr aph or whether any of the 31 purc hased a dvertisingbeca use of the subje ct photograph. ¶ 9 Plaintiff le arne d that the subject photogr aph had been included in the media kit whe n a friend notified her of the fac t on J anuar y 12, 2010. On J anuar

y 14, 2010, plaintiff complained
to defe ndant about the use of the subject p h o t o graph. The rec ord shows that at some time following J anuar

y 14, but befor e plaint i ff’s cease-a nd-desist letter of J anuar y 26, 2010, defe ndant stopped usingthe cove r pag e. ¶ 10 On May 4, 2010, plaintiff filed a complaint. Count I was for “unauthorized appropriation of likeness,” and count I I alleg ed a violation of the Act. Plaintiff reque sted injunctive relief
, actua l damag es, punitive damag es, and attorney fee s and costs. Both parties filed motions for partial summary judgme nt. Howeve r, on April 1 3
, 2 0 1 2
, b o th p a r ti es then filed cross-motions for summary judgme nt. On J une 15, 2012, the trial court grante d summary judgme nt in favor

o f defe ndant and denied plaintiff’s motion for summary judgme nt. This timely app ea l followed.

¶ 11 ANALYSI S ¶ 12 Plaintiff contends that she is entitled to actua l damag es, punitive damag es, and attorne y fee s, cos t s, and expenses under the Act, beca use defe ndant used her and her daughter’s identities for commerc ial purposes without obtaining previous written consent

. Although plaintiff conce ded at her deposition that the first publication of the subject p h o t o graph, in

connec tion with the g arde n contest, was not in issue, she now contends that, if we deter mine that the first publication was for commerc ial purposes rathe r than a news article
, it also was

a violation of the Act. Def endant maintains that summary judgme nt was properly grante d in its favor
, beca

use the mag azine and t h e m ed ia kit wer e a single “commer cial device ” employed to g ener ate adver tising reve nue. Def

endant’ s theory
, adhering to the trial court’s finding s in its written order
, seems to be that, despite two separ ate publications of the subject photogr aph, there was only one purpose (to g ener ate adver tising reve nue), to which plaintiff
consente d when she enter ed the g arde n contest and allowed Pendergrast to ta ke the subject photogr aph. ¶ 13 Summary judgme nt is appropriate wher e the pleading s, depositions, and admissions on file, toge ther with aff

idavits, if any , show that there is no g enuine issue of materia l fac t and that the moving pa

rty is entitled to a judgme nt a s a matter of law. Buffa v

. Haideri
, 362 I ll. App. 3d 532, 537 (2005). Summary judgme nt is a drastic reme dy that should be allowed only when the right of t he movi ng part y i s cl ea r an d fre e from doubt. Buffa
, 362 I ll. App. 3d at 537. Her e, as we indicated above, the parties filed cross-motions for summary judgme nt. When parties file c ross-motions for summary judgme nt, they invite the court to decidethe issues as a matter of law. Pielet v. Pielet
, 2012 I L 112064, ¶ 28. Our revie w is de novo

.

-4-Buffa , 362 I ll. App. 3d at 537.

¶ 14 Effe ctive J anuar y 1, 1999, the common-law tort of appropriation of one’s likeness, also

s ometimes ref

err ed to as the right of publicity
, cea sed to exis t in I llinois
, beca use t h e Ac t completely repla ced it (

Blair v. Nevada Landing Partnership, RBG, LP
, 369 I ll. App. 3d 318, 32 2 -2 3 (2006)), although the Act essentially codified the common-law right of publicity ( Brown v

. ACMI Pop Division , 375 I ll. App. 3d 276, 283 (2007)). Sec tion 30(a) of the Act provides that a person may not use an individual’s identity for commerc ial purposes during the indi v i du al ’s lifetime without having obtained previous written consent. 765 I L CS 1075/30(a) ( West 2010). “I dentity” includes a photogr aph. 765 I L CS 1075/ 5 (West 2010). “Commercia l purpose” me ans the “public use” or “holding out” of an individual’s identity (i) on or in connec tion with the offe ring for sale or sale of a product, merc handise, g oods, or service s; (ii) for purposes of “advert i sing or promoting” products, merc handise, g oods, or service s; or (iii) for the purpose of fundra ising. 765 I L CS 1075/5 (West 2010). A person who violates the Act can be liable for either actua l damag es, profits derive d from the unauthorized
use, or both, or $1,000. 765 I L CS 1075/40(a)( 1), (a) (2) (West 2010). Puniti ve damag es may be awa rded for a willful violation of the Act. 765 I L CS 1075/40(b) (West 2010). Section 55

o f t h e Act provides that the court “may” award to the prevailing party rea sonable atto rn ey fee s, costs, and expenses. 765 I L CS 1075/ 55 (West 2010). ¶ 15 Be fore the Act, the tort of appropriation of one’s likeness was one of fo u r re co gn i zed forms of invasion of privac y

. Geisberge r v. W illuhn
, 72 I ll

. Ap p

. 3 d 4 35, 439 (1979). Historically
, the tort develope d under the ru bric of privac y law, which was used by some courts to deny celebrities rec overy , since a cele brity
, by virtue of his o r h er fa m e, lacke d privac y

. Alicia M. Hunt, Comment, Eve ryone W ants to be a Star: Extensive Publicity Rights for Noncelebriti es Unduly Restrict Commercial Speec h
, 95 Nw. U. L

. Rev. 1605, 1606 (2001). The courts then established the right of publicity to protec t the commerc ial value of

a cele brity ’s identity
, rathe r than a privac y interest

. Al i cia M. Hunt, Comment, Eve ryone W ants to be a St a r : E

xtensive Publicity Rights for Noncelebrities Unduly Restrict Commercial Speec h
, 95 Nw. U. L

. Rev. 1605, 1606 (2 0 0 1 ). The two torts wer e, thus, distinct. Andre w J

. McClurg
, A Thousand W ords Are W

orth a Picture: A Privacy Tort Response to Consumer Data Profiling
, 98 Nw. U. L

. Rev. 63, 107 (2003). Dea n Wil liam Prosser subsumed the t wo into one cause of action and define d it as protec tive of both
persona l and economic interests. Joe Dicke rson & Associates, LLC v. Dittmar
, 34 P.3d 995, 1 0 0 0 (C o l o. 2001) ( en banc ) (citing Wil liam Prosser, Privacy
, 48 Cal. L

. Rev. 383, 389 (1960))

. In other words, the tort protec ted a private individual whose harm was to pe rsonal fee lings as well as the cele brity whose likeness had an established value. The differ ence was in the amount of dama g es to be a war ded. ¶ 16 To alleg e a common-law appropriation-of-likene ss or right-of

- p u b li c it y c laim, a plaintiff had to se t forth three elements: (1) an appr opriation of one’ s name or likene ss; (2) without one’s consent; and (3) for another ’s commerc ial benef it. Blair
, 369 I ll. App. 3d at 322. Under the Act, the elements a

re e ssentially

the same (

Blair , 369 I ll. App. 3d at 323), although the Act expands the scope and availability of the cause of action (Stephen P. Trimper, The New Illinois Right

of Publicity Act , 11 D.C.B.A. B rief 26 ( 1999)). ¶ 17 In order to deter mine whether defe ndant is liable under the Act, we must construe it. The

-5-car dinal rule of statutory construction is to asce rtain and g ive eff ect to leg islative inte n t

. Nowak v. City o

f Co u n tr y C l ub Hills
, 2011 I L 111838, ¶ 11. The best indication of the leg islature’s intent is the statutory languag e, g iven its plain and ordinar y meaning

. Nowak
, 2011 I L 111838, ¶ 11. “Where the languag e is clea r and unambiguous, we must apply the
statute without resor

t to further aids of statutory construction.” Nowak
, 2011 I L 111838, ¶ 11. ¶ 18 Section 10 of the Act procla ims that “[t] he right to control and to choose whethe r an d how to use an individual’s identity for commerc ial purposes i s recognized as eac h individual’s right of publicity .” 765 I L CS 1075/10 (West 2010). An “individual” is a living

or dece ased natura l pe rson. 765 I L CS 1075/5 (West 2010). “I dentity” means “any attribute of an individual that serve s to identify that individual to an ordinary
, rea sonable viewer or listener” and i n cl u d es, but is not limit ed to, “(i) name, (ii) signature, (iii) photogr aph, (iv) imag e, (v) likeness, or (vi) voice.” 765 I L CS 1075/ 5 (West 2010). As noted, “Commerc ial purpose” means the “ public use” or “holding out” of “an individual’s identity” (i) on or i n

connec tion with the offeringfor sa le or sale of a pr oduct, merc handise, g oods, or servic es; (ii) for purposes of “adve rtising or promoting” products, merc handise, g oods, or service s; or (iii) for the pur

pose of f undraising . 765 I L CS 1075/ 5 (West 2010). ¶ 19 Her e, there is no question that plaintiff and her daughter are i n d i v i du al s and that the subject photogr aph constituted their “identities .” The issue is whether defe ndant used the subject photograph f

or commer cial purpose s. ¶ 20 We first look at whether the use of the subject photogr aph was a “public” use. The statute does not define “public” use. Ho we v er , th e word “public” is unambiguous and means the “ag g regat e o f the citizens” or “eve ry body” or the “people at larg e” or the “community at larg e.” (Interna l quotation marks omitted.) Andersen Consulti ng LLP v. UOP
, 991 F. Supp. 1041, 1042 (N.D. I ll. 1998). W e m ay take judicial notice that the population of McHe nry County in 2010 was 308,760 (see System Dev elopment Servic es, Inc. v. Haarmann
, 389 I ll. App. 3d 561, 575 (2009) (appe llate court took judicial notice of the population of Effingham County)). In a county with a population of roughly 300,000 people, the media kit might have been distributed to 27 businesses and 4 individuals, all of them eit h er curr ent or potential adver tisers i n t h e m aga z ine. Under this scena rio, we do not believe that the subject photogr aph, assuming that al l 31 adver tisers, or potential adver tisers, saw it, was disseminated to the public. ¶ 21 The statute addre sses the “publi c u s e” o r “h o l d i n g o u t” of an individual’s identity

. “Holding out” is not define d, but it must mean something other than “public use.” See In re M.T.
, 221 I ll. 2d 517, 524 (2006) (“Wheneve r poss ible, eac h word [ of a statute] should be construed to avoid r endering it supe rfluous.”)

. The only applicable dictionary definition of “hold out” is “to make out to be: repr esent.” Webster’s Third New International Dictionary 1079 (1993). This is consistent with the way courts have constru ed “h o l d i n g out” i n other
contexts. For instance, in medical neg li g ence case s, hospitals may be found vicariously liable wher e they hold out a particula r phy sician as t h ei r ag ent. See Spiegelman v. Victory Mem orial Hospital
, 392 I ll. App. 3d 826, 833-34 (2009). In Cooney v. Magnabosco
, 407 I ll. App. 3d 264 (2011), the court held that, in order to state a cl ai m for illega l prac tice as a

cer tified shorthand repor

ter, the plaintiff had to plead and prove that the defe ndant actua lly
prac ticed and/or held herse lf out a s a cer tified shorthand repor

ter. Cooney
, 407 I ll. App. 3d

-6-at 270. In In re Parentage of Scarlett Z.-D.
, 2012 I L App (2d) 120266, ¶ 39, we held that the

adoptive mother was not equitably es t o p p ed from challeng ing the nonadoptive fathe r’s standing even though she had held out to the world that the child and the nonadoptive fathe r had a fathe r-da

ug hter relationship. He re , the Act prohibits the holding out–meaning the
repr esentation–of an individual’s identity on or in connec tion with cer tain activities. Housh testified at her deposition that she
, along with two assistants, chose the subjec t photogr aph for the c over of

the media kit. We conclude that, in deliberately placing plaintiff’s and her daughter’s identities on the cover , defe ndant was repr esenting
, or holding out, plaintiff’s and her da ug hter’s ide ntities. ¶ 22 The “holding out” must have occur red, inter alia
, on or in c onnection with the offe ring for sale or sale of a product, merc handise, g oods, or service s. 765 I L CS 1075/5 (West 2010). The subject photogr aph appea red on the cover of the media ki t , s o i t was “on” or “in

connec ti o n ” wi th t h e media kit

. The question is whether the m edia kit was an offe ring for sale of a product, merc handise, g oods, or service s. The media kit consisted of four pag es. The last pag e contained the ad rate s. Also o n t he last pag e was the following : “All 6x ad schedule s include turnkey design and production service s.” We conclude that the media kit

was an offe r for the sale of those “design and production” service s. L ikewise, the subject photogr aph was held out for purposes of promoting thos e service s. See 765 I L CS 1075/5 (West 2010). ¶ 23 Def

endant claims that the media kit and the mag azine are bundled into one “c ommercia l device ” that was cover ed by plaintiff’s consent to the subject photogr aph appea ring in the article announcing the g arde n-conte st winners. Housh testified at her deposition that both the
mag azine and the media kit wer e vehicle s t o g enerate adver tising reve nue. Fr om this, defe ndant conclude s that since, from defe ndant’s point of view, the purpose of eac h was the

sam e–to attrac t adver

tisers–plaintiff consente d to the unrestric ted use of the subject photogr aph for

that adver

tising purpose

. ¶ 24 We disagree

. Our rese arc h into the history of the common-law tort of appropriation a nd the right of publicity disclosed no such term of art as “commer cial device .” Nor do we coin it now. The right of privac y –the right of the individual to be let alone–is a persona l right that

was rec og nized in the seminal case of Pave sich v. New England Life Ins. Co.
, 50 S.E. 68, 78 (Ga

. 1905). Our supreme court rec ognized the right of privac y in Leopold v. Levin
, 45 I ll. 2d 434, 440 (1970), decla

ring that “[p] rivac y is one of the sensitive and nece ss ary h u m an values.” Leopold
, 45 I ll. 2d at 440. Her e, we cannot ignor e that defe ndant p ub l i shed the subject photogr aph twice. Whil e defe ndant might have obtained a complete rele ase covering all uses, it did not do so. It is conce ivable that plaintiff would not obje ct to one publication but would object to the other, particula rly wher e her and her daughter’s identities wer e used
to serve the economic interests of defe ndant rathe r than to serve an interest of plaintiff, such as publicizing her

g arde n. ¶ 25 Contrary to defe ndant’s ar gu m ent, we believe that the two publications of the subject photogr aph wer e for entirely differ ent purposes, one cover ed by the Act, one not. Section 35

o f the Act exempts from its application, inter alia
, the “use of an individual’s ident i t y fo r

non-commer cial purposes, including any news, public aff airs, or sports broadc ast or acc ount,

or any political c ampaign.” 765 I L CS 1075/35(b)( 2) (West 2010). “Ne ws” is a “report of a

-7-rec ent event: new information: fre sh tidings.” Webster’s Third New International Dictionary

1525 (1993). In this respe ct, “new s” is broade r than repor ting on public aff

airs, that is, politics and public policy

. The subject photogr aph appea red in the autumn 2009 issue of the

m agazi ne in connec tion with the announce ment of the g arde n-conte st winners. Rep o rt i n g who won the contest was repor ting a rec ent event and new information. Thus, the use of the

s ub j ect photogr aph to acc ompany the article was for the purpose of “new s” and wa s exempted from the Act. Indeed, such ty pes of events are regularly repor ted on the local nightly news broa dcasts. ¶ 26 On the other hand, as we demonstrated above, the use of the subject photogr aph on the

cover of the media

kit was for commercia l purposes, as define d by the Act. Consequently
, defe ndant neede d plaintiff’s written consent to use the subject photogr aph on the media kit. Def endant contends that such consent can be found in the rules for t h e gar d en contest and in the emails plaintiff ex chang ed with members of defe ndant’s st aff

. Nowher e in the rules is there any languag e that would advise a contest entra nt that, by entering the contest, he or she agree d to the unlimit ed use of his or her likeness for commerc ial purposes. Nor do the emails establish such consent. Plaintiff’s email serve d as her entry form. Def endant advised plaintiff by email that she was a finalist and would be contac ted by Pendergrast. This email mentioned the photographe r but did not refe renc e any uses to be made of the photographs. The email in which defe ndant advised plaintiff that she was a winner contained the information that the autumn issue of the mag azine was “choc k-full” of photos an d d et ail s about the g arde ns. That email made no mention of the subject ph o t o grap h or using it for
purposes other than in connec tion with the article announcing the winners. Acc ording ly
, we conclude that use of the subject photogr aph on the cover of the media kit without plaintiff’s written conse nt violated section 30 of the A ct. ¶ 27 We next consider damag es. Plaintiff first claims that she is entitled to $38,93 3
, as t he profits defe ndant derived from the use of the subje ct photograph. She a rrives at this figure as follows: “[Pl aintiff] used the adver tisements place d by the [31 adver tisers disclosed by defe ndant] in [t he mag azine’s] 2010 issues and calc ulated the reve nues rec eived by [defendant] for those adve rtisements, which totaled $38,933.” ¶ 28 Def

endant responds that those damag es are specula tive and wi t h o u t fo undation in the evidenc e. De fenda

nt points out that it did not ke ep a re cord of who re ceive d the media kit; there is no way to establish that eac h of the 31 disclosed adver tisers actua lly saw the subject photogr aph; and there is no evidenc e th at an y o f the 31 adver tisers purcha sed space as a result of having seen the subject photogr aph. Appar ently
, plaintiff did not depose any of the 31 adver tisers. ¶ 29 Howeve r, acc ordi n g t o plaintiff, defe ndant had a duty under Shimanovsky v. Ge neral Motors Corp.
, 181 I ll. 2d 112 (1998), to prese rve the evidenc e or suffe r adver se infere nces. In Shimanovsky
, a product liability case , the plaintiffs’ case was dismiss ed as a sanction for their expert destroying the power -steering components of their automobile during testing, thus depriving the defendant of an opportunity to conduct its own t ests. Shimanovsky
, 181 I ll. 2d at 117-18. Our sup reme court held that a potential litigant owes a duty to take

-8-re asonable measure s to prese rve the integrity of rele vant and materia l evide n ce

.

Shimanovsky , 181 I ll. 2d at 121-22. ¶ 30 Shimanovsky is not applicable

. The g ener al rule in I llino i s i s t h at th ere is no duty to prese rve evidenc e. Martin v. Keeley & Sons, Inc.
, 2012 I L 1 1 3 2 7 0
, ¶ 27. There is a twoprong test a plainti ff must meet in order to establish an ex ception to the g ener al rule: (1) a plaintiff must show that an agree ment, contra ct, statute, specia l c ircumstance
, or voluntary undertaking has g iven rise to a duty to prese rve evidenc e; and (2) a plaintiff must show that the duty extends to the specific evidenc e at issue, by demonstrating that a rea sonable person in the defe ndant’s position should have fore seen that the evidenc e was materia l to a potential civil action. Martin
, 2012 I L 113270, ¶ 2 7

. He re , p l aintiff does not argue the exis tence of either prong

. The rec ord does not discl o s e an y evidenc e rela ting to the first prong

. Wit h
reg ard to the second prong , at the time defe ndant handed out the media kits to its salespeople
, i t had no idea that the cover would involve it in litigation. Moreove r, plaintiff’s argumen t

rea lly is that de fenda

nt ha d a duty to c reate evidenc e. Housh testified at her deposition that she di d not keep track of to whom the s alespe ople g ave the media kits. Plainti ff’ s position is that Housh should have kept re cords. This argument is meritless. ¶ 31 We agree with defe ndant that plaintiff cannot p ro v e p ro fits. The Act provides for the

rec overy of profits that a defe ndant “der ived from the unauthorized use.” 765 I L CS 1075/40(a)( 1) (West 2010). Section 4 5 o f the Act provides that the plaintiff is require d to prove the “gross reve nue attributable to the unauthorized use.” 765 I L CS 1075/45(a) (West 2010). Consequently
, plaintiff must prove that the $38,933 she claims as profits wer e direc tly attributable to the unauthorized use of the subject photogr aph. All plaintiff has prese nted is speculation that the 31 adver tisers saw the subject photogr aph and as a re sult place d adver t i s em en t s i n the 2010 issues. The rec ord is devoid of any evidenc e of a connec tion betwee n the adve rtising r evenue and the subjec t photogr aph. Plaintiff admitted that all she did to compute g ross reve nue was add up the adver tising dollars. She made no attempt to prove the cruc ial link betwee n those dollars (assuming the amount is corr ect) and the subject photogr aph. The cover pag e contained eight other photogr aphs, some of them with more than

one rec og nizable person in them. I f any of the adver tisers wer e moved to place ads beca use

o f t he cover (which was not proved)
, any of the other eight photos could have b ee n t h e

rea son. ¶ 32 In the absenc e of proof of actua l damag es or profits attributable to the unauthorized use, the Act provides for damag es in the amount of $1,000. 765 I L CS 1075/40(a)( 2) (West 2010). Acc ording ly
, we hold that plaintiff is entitled to damag es in the amount of $1,000. Plaintiff is also suing on be half of he r minor daughter, who is entitled to $1,000 as we ll. ¶ 33 We next consider whether plaintiff is entitled to punitive damag es. The Act provides for punitive damag es for a will ful violation o f s ec t ion 30. 765 I L CS 1075/40(b) (W est 2010). Her e, we agree with defe ndant that its actions wer e not willful. Acc ordi n g to Housh, she believed that plaintiff’s consent to use the subject photogr aph in the mag azine was consent for all purposes. Housh testified at her deposition that Pendergrast owned the imag e and that she reque sted his permission to use it on the cover of the media kit. Whil e Housh’s assumptions wer e wrong , they d em o n s t rate that her actions wer e not a will ful violation of the Act. She took steps to try to do the righ t t h i n g. Plaintiff complains that defe ndant

-9-continued to disseminate t he co v er wi t h the s ubject photogra ph afte r pl aintiff ins tructed it not to do so. The evidence shows that Housh took immediate steps to rec tify the situation. She contac ted an attorney for advice

. She instructed the salespeople to remove the cover when showing the media kit to potential ad v er t i s er s. Be tween J anuar y 14, 2010, when plaintiff made the complaint to Housh, and J anuar y 26, 2010, when plaintiff’s attorney sent

a ce ase- and-de sist letter, defe ndant had c ease d using the cover

. ¶ 34 Puniti ve d am age s ar e d i s favor ed. Petty v. Chrysler Corp.
, 343 I ll. App. 3d 815, 828 (2003). A court may awa

rd punitive damag es wher e the tortious acts are malicious or wher e they display a rec kless disreg ard for others’ rights. Petty
, 343 I ll. Ap p

. 3d at 828. The
purpose of p unitive damag es is to punish the tortfea sor and to deter others from the same conduct. Petty
, 343 I ll. App. 3d at 828. Her e, defe ndant violated the l et ter of the Act. Def endant’ s actions wer e not malicious or willful, as discussed above

. P laintiff does not claim t hat she or he r daughter suff ere d mental anguish, ridicule, hum iliation, or emoti onal distress as a result of defe ndant’s acts. Although the inclusion of the subject photogr aph on the cover of the media kit violated the Act, the fac ts in the instant case ar e u n l i k e the fac t

scena rios that brought the tort of appr opriation into beingin I llinois

. ¶ 35 In Eick v. Perk Dog Food Co.
, 347 I ll. App. 293 (1952), the plaintiff was a blind g irl who owned a seeing -eye dog

. Eick, 347 I ll. App. at 294. The defenda nts, without the plaintiff’ s consent, used the plaintiff’s photogr aph in an adver tisement promoting the sale of dog food. Eick
, 347 I ll. App. at 294. The defe ndants wer e conducting an ad v er t i s ing campa ign to promote sales of their dog food by running a contest through which purcha sers of the dog food could aid the visually handica pped. Eick
, 347 I ll. App. at 306. The advert i s ement depicted the plaintiff as the potential donee of a “ ‘Master Eye Dog .’ ” Eick
, 347 I ll. App. at 294. This cause d the plaintiff mental an guish, humiliation, and the loss of admiration and
respe ct of those who kne w her

. Eick, 347 I ll. App. at 294. ¶ 36 In Annerino v. Dell Publ ishing Co. , 17 I ll. App. 2d 205 (1958), the defe ndant us ed the plaintiff’s photogr aph, taken while she was in shock and grief over her husband’s murder by

a g ang ster, in its mag azine “Inside Detec tive.” Annerino
, 17 I ll. App. 2d at 206-07. The photogr aph was used, without the plaintiff’s consent, in conjunction with a sensationalized and dra matized tit le, subtitle, and narr ative of the crime. Annerino , 17 I ll. App. 2d at 210. ¶ 37 In Smith v. W

GN, Inc.
, 47 I ll. App. 2d 183 (1964), the plaintiff willingly allowed a movie
to be made of hi mself pl ay ing tennis. Smith
, 47 I ll. App. 2d at 185. Wit hout the pl aintiff’s consent, the defe ndants produce d and aire d a commerc ial for a hair product that used a part of the movie showing the plaintiff serving a tennis ball and running to the net while a voiceover described the merits of the hair product, a bottle of which was shown on-scr een. Smith
, 47 I ll. App. 2d at 184. The plaintiff claimed that he suffe red humiliation and mental anguish. Smith , 47 I ll. App. 2d at 184. ¶ 38 What the plaintiffs in the above c ases have in common is that the defe ndants exploi ted

some trait specific to the plaintiffs, such as blindness, grief, and athleti c ab i l i ty , for

commerc ial g ain. Her e, def endant use d the subject photograph to illustrate the mag azine’s theme–“c elebr ating the g ood life right here in McHe nry County”–in its media kit, which advocat ed t h e benef

its of adver

tising in the mag azine. Housh testified that the cover

-10-photogr aphs wer e chosen beca use they wer e pleasing

. L ooking at the cover of the media kit, the viewer does not infer that the persons depicted in the photos are endorsing any product. This also distinguishes the instant case from Ainsworth v. Century Supply Co
., 295 I ll. App. 3d 644 (1998), upon whic h plaintiff re lies. ¶ 39 In Ainsworth
, the plaintiff consente d to make an instructional video on installing tile f or distribution to Century ’s customers. Ainsworth
, 295 I ll. App. 3d at 646. Century then hired

a company , TCI
, to cre ate a television commerc ial. Ainsworth
, 295 I ll. App. 3d at 646. A part of the video in which the plaintiff participated was inserted into the commerc ial, which was

s hown on television. Ainsworth
, 295 I ll. App. 3d at 646-47. As in Eick an d S mi th
, a char acte ristic, or a talent, possessed by the plaintiff was exploi ted for purposes of an endorse ment. Su c h e gr e g io u s c onduct simply is not prese nt in our case

. Acc ording ly
, plaintiff is not entitl ed to punitive damag es. ¶ 40 Plaintiff ne x t contends that she is entitled to attorney fee s, costs, and expenses. Section 55 of th e Ac t provides that the court “may” awa rd attorney fee s, costs, and expenses. We

rema nd this cause to the trial court for a hearing and deter mination of whether
, in the court’s judgme nt, such fee s, costs, and expenses should be aw arde d.

¶ 41 CONCLUSI ON ¶ 42 To rec ap: the trial court’s deter mination that defe ndant did not violate the Act is r ever sed; plaintiff and her daughter are to rec over statutory damag es in the amount of $1,000 eac h; the trial court’ s rulings that plaintiff is not entitl ed to ac tual or punitive damag es ar e af firmed; the trial court’s ruling that neither party is entitled to att o rney fee s, costs, and expenses is

vacated and the matter is rema n d ed t o the trial court for a hearing on the issue of whether plaintiff is entitled to fees, c osts, and/or expenses under theAct.

¶ 43 Affir

med in part, re verse d in part, and va cate d in part; ca use re manded.

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