What Led to the Lawsuit Against the Contest Sponsor?
In spring 2009, Prairie Ridge Media, publisher of the McHenry County Living magazine, sponsored the Gardens in the County gardening competition open to residents of McHenry County, Illinois. Karen Trannell was a finalist in the gardening competition and Prairie Ridge sent a photographer to her home for a photo shoot. Prairie Ridge used photos depicting Ms. Trannel in her home garden in two places:
the autumn 2009 issue of McHenry County Living magazine which featured photos of the gardening competition winners and their gardens
On the cover of a marketing brochure used by McHenry County Living magazine to solicit advertisers
Prairie Ridge did not obtain a release from Ms. Trannel for either use of her image. Ms. Trannel sued Prairie Ridge alleging unauthorized appropriation of her likeness and violation of the Illinois Right of Publicity Act.
What Happened in the Right of Publicity Lawsuit Against the Contest Sponsor?
An Illinois court concluded that Prairie Ridge’s use of Ms. Trannel’s photo in the McHenry County Living magazine segment featuring the gardening competition qualified as news and was, therefore, not a violation of Illinois right of publicity laws. While the court opinion does not discuss implied consents, in my view, Ms. Trannel gave an implied consent for the use in the magazine since she allowed the photographer to take her picture and knew those photos would be used in connection with the gardening competition.
The second use is different. The Illinois court concluded that the use of Ms. Trannel’s photo in the marketing brochure was a commercial use and did violate the Illinois Right of Publicity Act since Prairie Ridge used the photo without Ms. Trannel’s written consent.
How Much Did those Right of Publicity Mistakes Cost the Contest Sponsor?
$2,000 in Damages. Since Ms. Trannel could not prove actual damages or profits from the unauthorized use of her image, her damages were limited to statutory damages - $1,000 for herself and $1,000 for her daughter who also appeared in the photo.
No Punitive Damages. The court denied punitive damages to Ms. Trannel finding that Prairie Media had not willfully violated Ms. Trannel’s publicity rights. One of the things Prairie Media did right was to stop using Ms. Trannel’s photo in the marketing brochure after Ms. Trannel complained about the use. That remedial action had significant impact on saving Prairie Media from punitive damages.
Legal Fees Largest Expense. $2,000 is not a huge loss for Prairie Ridge – that is, until you factor in legal fees. The legal proceeding was fully litigated before the Circuit Court of McHenry County and then appealed to the Appellate Court of Illinois. That had to be costly. My guess is tens of thousands of dollars. To top that off, there is the outstanding possibility that Prairie Media may also have to pay Ms. Trannel’s attorney fees. The appellate court sent the matter back down to the lower circuit court to determine whether Prairie Media should be made to pay Ms. Trannel’s attorney fees.
How Contest Sponsor Could Have Easily Avoided this Right of Publicity Lawsuit?
From Prairie Media’s perspective, this lawsuit should have never happened! It was so easily avoidable. Contest rules form a binding contract between the contest sponsor and the contest entrant. A sentence such as the following in the Gardens in the County contest rules could have prevented this lawsuit:
Except where prohibited, participation in the contest constitutes entrant’s consent to contest sponsor’s use of entrant’s name, image, and/or biographical information for promotional purposes in any media, worldwide, without further payment or consideration.
Balough Law Offices, LLC, which represents Ms. Trannel in this matter, kindly provided me with a copy of the written rules used by Prairie Media for the Gardens in the County contest. While shorter than most contest rules, Prairie Media’s contest rules did contain some important terms useful for protecting contest sponsors such as the qualifications of the judges and the criteria on which the winners would be selected. Unfortunately for Prairie Media, the rules did not include a publicity release.
Since there was no publicity release in the contest rules, why, oh why, did Prairie Media not obtain a written release when the photographer went to Ms. Trannel’s home? Written releases need not be complicated or long. A very simple written release can be effective. In Prairie Media’s situation, one sentence such as the following likely would have saved Prairie Media from a lot of legal headaches and expense:
I give Prairie Media my permission to use my image and name in the McHenry County Living magazine and in connection with marketing the magazine in all media and territories.
The case is Trannel v. Prairie Ridge Media. You can read the appellate court’s full decision here.