Case: 1:23-cv-02392 Document #: 23 Filed: 02/27/24 Page 1 of 30 PageID #:139
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`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`CYNTHIA LOVE,
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`Plaintiff,
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`v.
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`CLARENCE IVY SIMMONS, JR., et al., )
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`Defendants.
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`____________________________________)
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`Case No. 23-cv-2392
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`Hon. Steven C. Seeger
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`MEMORANDUM OPINION AND ORDER
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`Today, Kanye West is one of the most famous – some might say infamous – artists in the
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`music industry. But back in 2003, West was a little-known, up-and-coming rapper. And he got
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`his big start from a setback. West shattered his jaw in a car accident. While recuperating in the
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`hospital, with his jaw wired shut, inspiration struck.
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`West recorded a mixtape for a track called “Through the Wire.” The song became a
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`break-out hit. It was West’s debut solo single, and it jumpstarted his career.
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`The “Through the Wire” music video, recorded in 2003, was a hit, too. It has millions of
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`views on YouTube. It took home the Video of the Year honor at the 2004 Source Hip Hop
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`Awards.
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`That video is where Plaintiff Cynthia Love comes into the picture, literally and
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`figuratively. Love makes a short appearance in the “Through the Wire” music video. She does a
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`little hoppity spin-dance in a barbecue restaurant, before asking West for some change. She
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`looks unsteady, and sounds slurred. It is hard to tell if West looks impressed.
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`Decades later, clips of Love from that music video, plus previously unreleased footage,
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`appeared in a 2022 docuseries released on Netflix, called “Jeen-yuhs: A Kanye Trilogy.”
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`Case: 1:23-cv-02392 Document #: 23 Filed: 02/27/24 Page 2 of 30 PageID #:140
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`“Jeen-yuhs” has three parts, each about 90 minutes long. Footage of Love appears for less than
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`two minutes.
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`Love takes issue with how she was portrayed in the clips taken in that BBQ restaurant
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`decades ago. So she sued Netflix, along with documentarians Clarence Ivy Simmons, Jr. and
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`Chike Antoine Ozah. She brought a host of tort claims. Defendants, in turn, moved to dismiss.
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`For the reasons stated below, the motion to dismiss is granted.
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`Background
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`At the motion-to-dismiss stage, the Court must accept as true the well-pleaded allegations
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`of the complaint. See Lett v. City of Chicago, 946 F.3d 398, 399 (7th Cir. 2020). The Court
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`“offer[s] no opinion on the ultimate merits because further development of the record may cast
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`the facts in a light different from the complaint.” Savory v. Cannon, 947 F.3d 409, 412 (7th Cir.
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`2020).
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`The case is about a music video by Kanye West. If you’re reading this opinion, and you
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`haven’t been living under a rock, you know who he is. West is one of the most well-known
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`artists in the music industry. He’s inescapable. And he’s from Chicago.
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`West has gotten into some hot water over the years by opening his mouth. But his career
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`began with his mouth shut – wired shut.
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`West shattered his jaw in an accident, and the hospital wired his jaw shut. The wire, it
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`seems, spoke to him. He wrote a song called “Through the Wire,” which became his breakout
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`hit.1 He got hit by a car, and then by an idea.
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`1 “Through the Wire” samples Chaka Khan’s 1984 hit, “Through the Fire,” with Khan’s voice pitched up
`in a squeal reminiscent of Alvin and the Chipmunks. Khan gave West permission to use her song – but
`she was less than impressed with the finished product, which she thought was “stupid.” See Eileen
`Reslen, Chaka Khan Slams Kanye West for ‘Through the Wire’ Sample, Page Six (June 27, 2019),
`https://pagesix.com/2019/06/27/chaka-khan-slams-kanye-west-for-through-the-wire-sample/. The track
`peaked at No. 15 on the Billboard Hot 100 chart. See Xander Zellner, Kanye West’s Biggest Billboard
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`West promoted the song with a music video. The video begins with a nod to his wired
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`jaw: “Last October grammy nominated producer KANYE WEST was in a nearly fatal car
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`accident. His jaw was fractured in three places. Two weeks later he recorded this song with his
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`mouth still wired shut . . . so the world could feel his pain!” Channelzerotv, Kanye West –
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`Through The Wire, YouTube (Oct. 3, 2006), https://www.youtube.com/watch?v=uvb-1wjAtk4.
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`(ellipsis in original). Along the way, the video shows clips of the medical staff wiring his mouth
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`shut.
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`West recorded the video in 2003. See Cplt., at ¶¶ 12, 22 (Dckt. No. 1-1). The video
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`garnered a lot of attention. It has tens of millions of views on YouTube.2
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`Plaintiff Cynthia Love appears in the “Through the Wire” music video. The music video
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`opens with Love dancing in the lobby of Original Leon’s Bar-B-Q, a Chicago restaurant, for
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`about 12 seconds. “Dancing” might be a strong word. She spins around, and seems to stumble a
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`little. She doesn’t look particularly adroit on her feet. And her speech sounds a bit slurred.
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`Love was paid $20 for her appearance. Id. at ¶ 14. Love says that she was in an altered
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`state when filming the video. Id. at ¶ 15.
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`Defendants Clarence Ivy Simmons, Jr. and Chike Antoine Ozah were behind the camera
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`when Love was filmed. Simmons and Ozah, known professionally as “Coodie and Chike,” made
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`the “Through the Wire” video. Id. at ¶ 6. According to Love, Simmons and Ozah chose to
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`feature her in the video because of her altered state. Id. at ¶ 16.
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`Hot 100 Hits, Billboard (May 31, 2018), https://www.billboard.com/pro/kanye-west-biggest-billboard-
`hot-100-hits/. It received a Grammy nomination (but lost to Jay-Z’s “99 Problems”). See Artist: Kanye
`West, Grammy.com, https://www.grammy.com/artists/kanye-west/6900 (last visited Feb. 22, 2024).
`2 Channelzerotv, Kanye West – Through The Wire, YouTube (Oct. 3, 2006), https://www.youtube.com/
`watch?v=uvb-1wjAtk4 (showing 32.9 million views as of February 2024); 2004 Source Hip-Hop Music
`Awards Winners, Billboard (Oct. 11, 2004), https://www.billboard.com/music/music-news/2004-source-
`hip-hop-music-awards-winners-66144/. The number keeps climbing. The video has received more than
`half a million views since the Court started working on this opinion (not that long ago).
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`More recently, Simmons and Ozah created a docuseries about West, titled “Jeen-yuhs: A
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`Kanye Trilogy.” Id. at ¶ 7. The docuseries was released on Netflix in February 2022, meaning
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`19 years after the making of the “Through the Wire” music video. Id. at ¶¶ 11, 18.
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`“Jeen-yuhs” features footage of Love from the “Through the Wire” video. Id. at ¶ 19.
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`“Jeen-yuhs” also includes previously unreleased footage of Love at the barbecue restaurant. Id.
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`Love appears briefly in episodes 1 and 2 of the trilogy.
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`Episode 1 shows West and Love in the lobby of the barbecue joint. Love jokes around
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`with West about the making of the video. See “Jeen-yuhs” Documentary (Ep. 1), at 1:13:22 –
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`1:14:03 (Dckt. No. 12-1). She does a more extended, elaborate “old-school” dance, apparently
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`inspired by a Jay-Z music video for Izzo (H.O.V.A.). Hear generally Jay-Z, Izzo (H.O.V.A.)
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`(2001).
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`As she twirls around, Love is laughing all the while. “We working on a new video. . . .
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`It’s yours. It’s Kanye West’s video.” See “Jeen-yuhs” Documentary (Ep. 1), at 1:13:22 –
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`1:13:55 (Dckt. No. 12-1).
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`Love asks West for some change, he obliges, and she says, “God bless you, baby. Thank
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`you for real.” Id. She gives West a hug. Id. The conversation ends after less than a minute.
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`Episode 1 includes no commentary about Love from West or the narrator. Id.
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`Episode 2 includes a clip from the “Through the Wire” music video release party in 2003.
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`See “Jeen-yuhs” Documentary (Ep. 2), at 1:04:43 – 1:04:52 (Dckt. No. 12-1). Footage from the
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`video plays on a large screen at the party. The party itself happened two decades ago. Id.
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`According to the complaint, “Jeen-yuhs” captures Love’s “darkest moments.” See Cplt.,
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`at ¶ 22 (Dckt. No. 1-1). It pictures her as “intoxicated, drunk and/or stoned, addicted and/or
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`living in an addiction-fueled lifestyle, inebriated, vagrant and/or possibly homeless, broke,
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`impoverished, disheveled, and desperate.” Id. at ¶ 20.
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`Since that day in the barbecue restaurant, Love has turned things around. She has stayed
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`sober for almost two decades, renewed relationships with family and friends, and held down
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`long-term jobs. Id. at ¶ 22. People learned about her checkered past for the first time after
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`seeing “Jeen-yuhs.” Id.
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`Love filed suit against Netflix, Simmons, Ozah in Illinois state court. Id. Defendants
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`removed the case to federal court. See Notice of Removal, at 1 (Dckt. No. 1).
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`Love brings 22 claims. For the most part, she filed the same claims against each
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`Defendant. Basically, there are seven different claims against each defendant (7 x 3 = 21), plus a
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`conspiracy claim against all three, for a total of 22 claims.
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`Counts I, II, and III allege defamation per se. See Cplt., at 4–8 (Dckt. No. 1-1). So,
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`Count I is a defamation per se claim against Simmons, and Count II is a defamation per se claim
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`against Ozah, and so on.
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`Counts IV, V, and VI allege defamation per quod. Id. at 8–10.
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`Counts VII, VIII, and IX are false light claims. Id. at 10–14.
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`Counts X, XI, and XII allege unlawful publicity in violation of the Illinois Right of
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`Publicity Act, 765 ILCS 1075.3 Id. at 14–17.
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`Counts XIII, XIV, and XV allege intentional infliction of emotional distress. Id. at 17–
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`20.
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`3 In the complaint, Love identifies the statutory basis for her unlawful publicity claims as 735 [sic] ILCS
`1075 et al. See Cplt., at 16–19 (Dckt. No. 1-1). The Illinois Right of Publicity Act is codified at 765
`ILCS 1075, not 735 ILCS 1075. See 765 ILCS 1075. But the parties get the citation right in their briefs.
`See Defs.’ Mem. in Support of Mtn. to Dismiss, at 12 (Dckt. No. 12); Pl.’s Resp. to Defs.’ Mtn. to
`Dismiss, at 6 (Dckt. No. 19). The Court simply flags this discrepancy to nip any confusion in the bud.
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`Count XVI alleges that Netflix, Simmons, and Ozah were in a civil conspiracy. Id. at 20.
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`Counts XVII, XVIII, and XIX are for quantum meruit. Id. at 20–23.
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`Finally, Counts XX, XXI, XXII are for unjust enrichment. Id. at 23–25.
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`Defendants moved to dismiss each of the counts for failure to state a claim. See Mtn. to
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`Dismiss, at 1 (Dckt. No. 11).
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`Legal Standard
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`A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
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`the merits of the case. See Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510,
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`1520 (7th Cir. 1990). In considering a motion to dismiss, the Court must accept as true all well-
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`pleaded facts in the complaint and draw all reasonable inferences in the plaintiff’s favor.
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`AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive, the complaint must
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`give the defendant fair notice of the basis for the claim, and it must be facially plausible.
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`555 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Iqbal, 556 U.S. at 678.
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`When reviewing a motion to dismiss under Rule 12(b)(6), the court may consider “the
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`complaint itself, documents attached to the complaint, documents that are critical to the
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`complaint and referred to in it, and information that is subject to proper judicial notice.”
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`Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). “When an exhibit
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`incontrovertibly contradicts the allegations in the complaint, the exhibit ordinarily controls, even
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`when considering a motion to dismiss.” Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013).
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`And that principle extends to video recordings attached to or referenced in a complaint. Id.; see
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`also Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 691 (7th Cir. 2012).
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`Analysis
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`Before diving in, the Court offers an overarching observation. Love’s claims center
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`around her appearance in “Jeen-yuhs.” The “Jeen-yuhs” series features three episodes, and each
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`episode is about an hour and a half long. Love appears in less than two minutes of footage,
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`across two episodes.
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`So, this case is about the use of a couple minutes of 20-year-old video clips in a
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`docuseries with a runtime of around 4.5 hours. The brevity of the clips does not determine
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`whether Love has a claim, but it does help to put things in perspective.
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`With that observation in mind, the Court will address each of the claims, in the order that
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`they appear in the complaint.
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`The Court will start with Love’s defamation claims, followed by the false light claims.
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`Then, the Court will address the right of publicity claims and the intentional infliction of
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`emotional distress claims. After that, the Court will address the civil conspiracy claims. The
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`Court will end by discussing quantum meruit and unjust enrichment.
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`I.
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`Defamation Claims (Counts I–VI)
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`The first six claims allege defamation. Counts I, II, and III allege defamation per se. See
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`Cplt., at 4–8 (Dckt. No. 1-1). Counts IV, V, and VI allege defamation per quod. Id. at 8–10.
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`“To state a defamation claim, a plaintiff must present facts showing that the defendant
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`made a false statement about the plaintiff, that the defendant made an unprivileged publication of
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`that statement to a third party, and that this publication caused damages.” Green v. Rogers,
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`917 N.E.2d 450, 459 (Ill. 2009). “A defamatory statement is a statement that harms a person’s
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`reputation to the extent it lowers the person in the eyes of the community or deters the
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`community from associating with her or him.” Id.
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`The difference between defamation per se and defamation per quod is whether the
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`listener would need an explanation to understand the harm inflicted by the statement.
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`“Statements are considered defamatory per se when the defamatory character of the statement is
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`apparent on its face; that is, when the words used are so obviously and materially harmful to the
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`plaintiff that injury to his reputation may be presumed. Statements are considered defamatory
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`per quod if the defamatory character of the statement is not apparent on its face, and extrinsic
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`facts are required to explain its defamatory meaning.” Kapotas v. Better Gov’t Ass’n, 30 N.E.3d
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`572, 587 (Ill. App. Ct. 2015) (cleaned up).
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`The names are different, but the elements are not. Under Illinois law, the elements of a
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`defamation claim are the same whether the plaintiff alleges defamation per se or per quod. See
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`Doctor’s Data, Inc. v. Barrett, 170 F. Supp. 3d 1087, 1102 (N.D. Ill. 2016). The difference lies
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`in the requirements for pleading and proving damages. See Tuite v. Corbitt, 866 N.E.2d 114, 121
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`(Ill. 2006).
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`Defamation requires falsity. “Truth is an absolute defense to defamation; true statements
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`cannot support a claim of defamation.” Hnilica v. Rizza Chevrolet, Inc., 893 N.E.2d 928, 931
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`(Ill. App. Ct. 2008).
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`A truthful statement that harms a person’s reputation isn’t defamation. It’s the sting of
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`the truth. Sometimes the truth hurts, and when the truth hurts, it isn’t defamation.
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`Under Illinois law, “a statement need not be accurate in every detail as long as the ‘gist’
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`or ‘sting’ of the statement is true.” Black v. Wrigley, 2019 WL 2433740, at *4 (N.D. Ill. 2019).
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`“[T]he burden of proving falsity rests on the plaintiff.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d
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`1222, 1228 (7th Cir. 1993).
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`The Court does not need to separately consider Love’s defamation per se and per quod
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`claims because she stumbles over the same hurdle for both. Plain and simple, any allegations
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`about Love in the “Jeen-yuhs” docuseries are true. The docuseries includes real-world clips of
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`Love, without doctoring the content or adding any false material. It shows true clips of a real
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`event.
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`Love believes that her defamation claims can move forward because she is not the same
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`person now that she was in 2003, when they made the music video. As she sees it, “Jeen-yuhs”
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`captures a moment in time and depicts her at her “darkest moments.” See Cplt., at ¶ 22
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`(Dckt. No. 1-1). She concedes that she was “obviously intoxicated” at the time of filming. See
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`Pl’s. Resp. to Defs.’ Mtn. to Dismiss, at 4 (Dckt. No. 19).
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`Love emphasizes how she changed between the time of the music video (2003) and the
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`time of the “Jeen-yuhs” docuseries on Netflix (2022). When “Jeen-yuhs” was “produced and
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`published, she had been sober for many years.” Id. In other words, the footage was true then,
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`but it isn’t true now.
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`According to Defendants, “Jeen-yuhs” makes clear that the footage is from twenty years
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`ago. See Defs.’ Reply, at 2 (Dckt. No. 20). And the fact that Love later turned things around
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`does not make footage from years earlier false. Id.
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`Defendants hit the nail on the head. A claim for defamation fails when “the alleged
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`falsehoods were merely illustrations of undoubted truths about [the plaintiff’s] character at the
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`time.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1229 (7th Cir. 1993) (emphasis added).
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`So, a defamation claim fails if the allegedly defamatory statement is a historical truth,
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`even if it is not a current truth. See, e.g., Hardiman v. Aslam, 125 N.E.3d 1185, 1193–94 (Ill.
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`App. Ct. 2019) (concluding that statements that plaintiff was convicted of domestic violence
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`were “substantially true” where defendant pleaded guilty to simple battery of his wife and his
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`guilty plea was expunged); Haynes, 8 F.3d at 1229–31 (affirming summary judgment against
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`plaintiff on a libel claim where plaintiff was depicted in a book as a heavy drinker, but had since
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`“turned his life around”).
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`Holding up a mirror isn’t defamation. Holding up a 20-year-old picture isn’t defamation,
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`either. They both reflect reality, like it or not. But defamation requires falsity.
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`The “Jeen-yuhs” video accurately portrays Love in a moment of time several decades
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`ago. The video does not suggest that Love remains in an intoxicated state, or anything of that
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`sort. The video shows a past truth, without suggesting that the past is the present. The footage is
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`historically accurate, so Love’s defamation claims cannot get off the ground.
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`Pivoting, Love points out that a clip of her appears in the second episode of the tripartite
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`“Jeen-yuhs” series. See Pl’s. Resp. to Defs.’ Mtn. to Dismiss, at 5 (Dckt. No. 19). According to
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`Love, because episode 2 shows West’s career taking off, the episode leaves viewers with a false
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`impression that Love’s life circumstances are unchanged. Id.
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`Not so. The documentarians captured footage of Love on only one day in 2003. See
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`Cplt., at ¶ 22 (Dckt. No. 1-1). The documentary makes no statement about her current state. It
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`does not suggest that Love continued to remain in that condition over the years.
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`Netflix viewers can see the obvious overlap between the clips of Love in episode one and
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`episode two. Love is shown wearing the same clothes, sporting the same hairstyle, and standing
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`in the same place. Netflix viewers can put two and two together and understand that they’re
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`watching footage from 2003, once again. No viewer would believe that episode 2 depicts recent
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`footage of Love.
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`In sum, a viewer of “Jeen-yuhs” would not “perceive Ms. Love’s life and lifestyle today
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`as abhorrent and loathsome” based on less than two minutes of 20-year-old footage. See Cplt., at
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`6 (Dckt. No. 1-1). “Jeen-yuhs” accurately portrays Love at the time of filming, and does not
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`make any representations about who she is today.
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`Love has failed to allege that “Jeen-yuhs” makes a false statement about her. So she has
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`no defamation claim. Counts I through VI are dismissed.
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`II.
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`False Light Claims (Counts VII–IX)
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`Counts VII through IX are false light claims. Id. at 10–14.
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`“To sustain this cause of action, a plaintiff must plead: (1) [s]he was placed in a false
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`light before the public by the defendant; (2) the false light would be offensive to a reasonable
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`person; and (3) the defendant acted with actual malice.” Seith v. Chicago Sun-Times, Inc.,
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`861 N.E.2d 1117, 1130 (Ill. App. Ct. 2007). A plaintiff must show that the defendant made a
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`false statement about her to prevail on a false light claim. See Fei Wang v. Bd. of Trustees of
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`Univ. of Illinois, 612 F. Supp. 3d 739, 752 (N.D. Ill. 2020).
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`If a “plaintiff’s unsuccessful defamation per se claim is the basis of [her] false-light
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`claim, plaintiff’s false-light invasion of privacy claim fails as well.” Id.; see also Pope v. Chron.
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`Pub. Co., 95 F.3d 607, 616 (7th Cir. 1996) (explaining that plaintiff’s false light claim failed for
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`“many of the same reasons his defamation suit suffers that fate” – including because the
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`publication was “substantially true”).
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`Love’s defamation and false light claims rest on the same set of facts. Compare Cplt., at
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`9 (Dckt. No. 1-1) (defamation per se claim) (“The depiction of Plaintiff Ms. Love presented in
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`the NETFLIX series jeen-yuhs: A Kanye Trilogy as broadcast in episodes 1 and 2, presents Ms.
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`Love in a manner whereby a viewer would perceive her as vulgar, untrustworthy, of ill repute,
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`unemployable, potentially violent, addicted, and living an immoral lifestyle.”), with id. at 13
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`(false light claim) (“The Defendant’s depiction of Ms. Love in jeen-yuhs: A Kanye Trilogy is
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`false in that viewers would believe Ms. Love to be vulgar, untrustworthy, of ill repute,
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`unemployable, potentially violent, addicted, and living an immoral lifestyle, being afflicted with
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`loathsome communicable diseases, an adulterer, a fornicator, and/or living an immoral lifestyle
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`or living such a dark and heartbreaking lifestyle that she would be dead by now.”).
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`Love runs into trouble with the first element of a false light claim. She concedes that the
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`depiction of her in “Jeen-yuhs” was true at the time of filming. See Pl.’s Resp. to Defs.’ Mtn. to
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`Dismiss, at 4 (Dckt. No. 19).
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`So, Love was not placed in a false light. See Seith, 861 N.E.2d at 1130. She was placed
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`in a true light. The fact that the light might have been unflattering doesn’t mean that it was false.
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`It’s a false light claim, not an unflattering light claim.
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`Love makes a similar argument about her false light claim that she made for defamation –
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`namely, that she “worked hard to transform her life and has put her tumultuous past behind
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`her . . . .” See Pl.’s Resp. to Defs.’ Mtn. to Dismiss, at 6 (Dckt. No. 19).
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`Again, Love may prefer to leave her past in the rear view mirror (and off Netflix). But
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`“Jeen-yuhs” does not contain false statements about her. Without falsity, it’s light’s out for the
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`false light claim.
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`Counts VII through IX are dismissed.
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`Case: 1:23-cv-02392 Document #: 23 Filed: 02/27/24 Page 13 of 30 PageID #:151
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`III. Right of Publicity Claims (Counts X–XII)
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`Counts X, XI, and XII allege unlawful publicity in violation of the Illinois Right of
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`Publicity Act, 765 ILCS 1075 et seq. See Cplt., at 14–17 (Dckt. No. 1-1).
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`Illinois law recognizes a statutory right of publicity. “The right to control and to choose
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`whether and how to use an individual’s identity for commercial purposes is recognized as each
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`individual’s right of publicity.” See 765 ILCS 1075/10. The Act defines a “commercial
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`purpose” as “the public use or holding out of an individual’s identity (i) on or in connection with
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`the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of
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`advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of
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`fundraising.” See 765 ILCS 1075/5.
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`The Act “prohibits use of an individual’s identity for commercial purposes without
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`written consent.” Best v. Malec, 2010 WL 2364412, at *3 (N.D. Ill. 2010). “A person may not
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`use an individual’s identity for commercial purposes during the individual’s lifetime without
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`having obtained previous written consent from the appropriate person or persons specified in
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`Section 20 of this Act or their authorized representative.” See 765 ILCS 1075/30(a).
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`
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`Defendants do not contest that “Jeen-yuhs” used Love’s identity without written consent.
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`But the statute includes a number of carve-outs, and Defendants argue that two of those
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`exemptions apply here. See Defs.’ Mem. in Support of Mtn. to Dismiss, at 12 (Dckt. No. 12).
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`Specifically, Defendants contend that the statute does not apply in light of (1) the exemption for
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`“audio-visual works,” and (2) the exemption for “public affairs.” Id. The first exemption applies
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`to artistic works, while the second applies to news and other matters of public interest.
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`The Court will address each exemption in turn.
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`13
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`Case: 1:23-cv-02392 Document #: 23 Filed: 02/27/24 Page 14 of 30 PageID #:152
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`A.
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`“Audio-Visual Work” Exemption
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`“The Illinois Right of Publicity Act clearly and unambiguously exempts artistic works,
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`including television productions . . . from its coverage, thus avoiding [] serious First Amendment
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`problems.” Collier v. Murphy, 2003 WL 1606637, at *3 (N.D. Ill. 2003); see also Zglobicki v.
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`Travel Channel, LLC, 2012 WL 725570, at *2 (N.D. Ill. 2012).
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`Specifically, the Act does not apply to “use of an individual’s identity in an attempt to
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`portray, describe, or impersonate that individual in a live performance, a single and original work
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`of fine art, play, book, article, musical work, film, radio, television, or other audio, visual, or
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`audio-visual work, provided that the performance, work, play, book, article, or film does not
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`constitute in and of itself a commercial advertisement for a product, merchandise, goods, or
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`services.” See 765 ILCS 1075/35(b)(1). That’s the so-called “audio-visual work” exemption.
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`The statutory text is broad, and “Jeen-yuhs” seems to fall within it. “Jeen-yuhs” is a
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`“film” or an “audio-visual work.” Id. The docuseries used Love’s “identity” to “portray” her,
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`too.
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`Love argues that the “audio-visual work” exemption does not apply because Defendants
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`were paid for their work. See Pl.’s Resp. to Defs.’ Mtn. to Dismiss, at 7 (Dckt. No. 19) (“The
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`Trilogy was created as a product to be advertised on the Netflix platform for profit. It has been
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`reported in the press that Defendant Netflix paid Defendants Simmons and Ozah $30,000,000.”).
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`That argument doesn’t get Love very far. Artists frequently receive payment for their
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`work. Works of art – from fine art to films to music – often generate significant revenue for the
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`players involved. Kanye West himself has earned untold millions of dollars from artistic work in
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`14
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`Case: 1:23-cv-02392 Document #: 23 Filed: 02/27/24 Page 15 of 30 PageID #:153
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`music and beyond.4 Artists oftentimes make no money. But sometimes they do. And the
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`absence or presence of money does not dictate whether it qualifies as art.
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`Shifting gears, Love contends that the “audio-visual work” exemption doesn’t apply
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`because Defendants did not attempt to “portray, describe, or impersonate” her. Instead, “Jeen-
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`yuhs” featured true footage of Love. See Pl.’s Resp. to Defs.’ Mtn. to Dismiss, at 8 (Dckt.
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`No. 19) (quoting 765 ILCS 1075/35(b)(1)). The argument seems to be that it is not a portrayal if
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`it is true, like a mirror image of someone.
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`That argument runs into trouble after a quick look at Merriam-Webster. The word
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`“portray” means “to make a picture of: depict.” Portray, Merriam-Webster’s Dictionary,
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`https://www.merriam-webster.com/dictionary/portray (last visited Feb. 22, 2024). In a literal
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`sense, a film (such as a documentary) consists of a series of pictures. A movie, after all, is a
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`motion picture. So, plain and simple, “Jeen-yuhs” appears to “depict” – meaning, “portray” –
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`Love.
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`Love points to one case to support of her argument that she wasn’t “portrayed, described
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`or impersonated.” See Christianson v. Henry Holt & Co., LLC, 2007 WL 2680822 (C.D. Ill.
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`2007). In Christianson, a book publisher used the plaintiff’s photograph on a book cover, even
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`though the plaintiff was mentioned nowhere in the book. Id. at *6. The court concluded that the
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`“audio-visual work” exemption did not apply. Id.
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`Defendants believe that Christianson is distinguishable on the facts. Defendants point
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`out that the plaintiff in Christianson was featured on a book cover – but not so much as
`
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`4 West’s music catalog alone reportedly is worth over $100 million. See Lisette Voytko, Here’s Why
`Kanye West Dropped Off The Forbes Billionaires List, Forbes (Apr. 5, 2023),
`https://www.forbes.com/sites/lisettevoytko/2023/04/05/heres-why-kanye-west-dropped-off-the-forbes-
`billionaires-list/?sh=7bf390291866.
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`Case: 1:23-cv-02392 Document #: 23 Filed: 02/27/24 Page 16 of 30 PageID #:154
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`
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`mentioned on the pages within – whereas Love herself is portrayed in “Jeen-yuhs.” See Defs.’
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`Reply, at 8 (Dckt. No. 20) (citing Christianson, 2007 WL 2680822, at *3).
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`The Court agrees with Defendants. Love herself appears in the documentary. See Cplt.,
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`at ¶ 19 (Dckt. No. 1-1). The Christianson court explained that the exemption might have applied
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`if the plaintiff were even briefly mentioned in the book. See Christianson, 2007 WL 2680822, at
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`*3. So, Christianson doesn’t move the ball in Love’s direction.
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`One final point. Courts have yet to squarely address whether documentaries fall under
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`the Illinois Right of Publicity Act’s “audio-visual work” exemption. It is hard to see why the
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`exemption would apply to some types of films, but not others. Documentaries have artistry, too
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`(ask Ken Burns). The Mona Lisa has artistic value, and it shouldn’t matter whether a real
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`woman sat down for the painting. Truth can be stranger than fiction, and depicting the truth can
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`require just as much artistry as depicting a fiction.
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`Courts broadly construe statutory exemptions to prevent First Amendment problems.
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`See, e.g., Zglobicki, 2012 WL 725570, at *2 (“Courts construe the IRPA’s non-commercial use
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`exemption to avoid First Amendment infirmity.”); Collier, 2003 WL 1606637, at *3; Best v.
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`Berard, 776 F. Supp. 2d 752, 758–59 (N.D. Ill. 2011).
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`Courts in other jurisdictions have sounded the alarm and expressed serious First
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`Amendment concerns in right of publicity cases involving documentaries and biopics. See, e.g.,
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`Hollywood Unlocked, Inc. v. Lifetime Entm’t Servs., LLC, 2021 WL 3265037, at *3 (C.D. Cal.
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`2021) (“Given the expressive nature and the subject matter of Defendants’ documentary,
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`Plaintiffs’ right-of-publicity claims [under California law] must be stricken.”); Brown v.
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`Showtime Networks, Inc., 394 F. Supp. 3d 418, 438 (S.D.N.Y. 2019) (opining that documentary
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`about Whitney Houston’s life fell under expressive work exemption and exemption for matters
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`Case: 1:23-cv-02392 Document #: 23 Filed: 02/27/24 Page 17 of 30 PageID #:155
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`of public interest); Seale v. Gramercy Pictures, 949 F. Supp. 331, 337 (E.D. Pa. 1996) (granting
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`summary judgment on right to publicity claim under Pennsylvania common law “insofar as that
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`claim relates to Defendants’ use of Plaintiff’s name and likeness in [a] film”).
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`He