Berry v. Ford Models, Inc.

525 F. App'x 451
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 9, 2013
DocketNo. 12-3776
StatusPublished
Cited by3 cases

This text of 525 F. App'x 451 (Berry v. Ford Models, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. Ford Models, Inc., 525 F. App'x 451 (7th Cir. 2013).

Opinion

ORDER

In this suit under the diversity jurisdiction, Aureen Berry claims that Ford Models, Inc., misappropriated her image in violation of Illinois law. She seeks $3.9 billion in compensatory damages and a like amount in punitive damages. The district court granted summary judgment for the defendant. We affirm that decision.

Berry stonewalled the defendant during discovery, so the background facts are sparse. By her account Berry worked in Chicago as a model and was represented by Susanne’s A-Plus Talent. A-Plus arranged for Berry to participate in a photo shoot for Chade Fashions, Inc., which markets wigs and other hair products. Berry maintains that her contract with Chade Fashions, made through A-Plus, provided payment for her participation in the shoot, but did not give Chade Fashions a release to use the photos for product packaging.

Berry has refused to tell Ford Models when she was photographed for Chade Fashions, but the date was July 7,1999. We know this because Berry disclosed the date when she sued Chade Fashions in the Circuit Court of Cook County in May 2001. In that suit she claimed that Chade Fashions was using her photograph on packaging for its Vienna brand hair extensions, which she claimed was a breach of her contract with the company and also a violation of the Illinois Right of Publicity Act, 765 ILCS 1075. She lost that lawsuit on the merits. See Berry v. Chade Fashions, Inc., 383 Ill.App.3d 1005, 322 Ill.Dec. 320, 890 N.E.2d 1239 (2008), petition for appeal denied, 229 Ill.2d 663, 326 Ill.Dec. 869, 900 N.E.2d 1116 (2008).

Then in November 2009, Berry filed a second lawsuit in the Circuit Court of Cook County, this time against Ford Models. She had “discovered” that month, she said, that Ford was now using her photograph from the 1999 shoot, and as evidence she attached to her complaint a photocopy of the packaging from the same Vienna hair extensions at issue in her first suit. She also attached a receipt showing that she had purchased the product on October 1, 2006, while her lawsuit against Chade Fashions was still ongoing. The link to Ford, Berry explained, is that A-Plus was acquired by Aria Modeling Agency, which in turn was acquired by Ford. In her view, Ford was the successor to A-Plus and thus implicated in her contract with Chade Fashions for the photo shoot. It followed, Berry continued, that Ford was required to obtain her written consent before any photographs from that shoot could be used by Chade Fashions for product packaging. Ford had not obtained her consent, Berry alleged, and thus had used her image for a commercial purpose without her consent in violation of the Right of Publicity Act. See 765 ILCS 1075/30; Trannel v. Prairie Ridge Media, Inc., [453]*4532013 IL App (2d) 120725, 370 Ill.Dec. 157, 987 N.E.2d 923, 927-30 (2013).

Ford Models, a Delaware corporation with its principal place of business in New York, removed the case to federal court, see 28 U.S.C. §§ 1332,1441, and moved to dismiss for failure to state a claim for relief, see Fed.R.Civ.P. 12(b)(6). Ford first argued that Berry’s complaint includes no factual allegations connecting the modeling agency to a violation of the Right of Publicity Act, and so Berry had not stated a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Second, Ford Models argued that the judgment in favor of Chade Fashions in Berry’s prior lawsuit was preclusive since that litigation rested on the same contract, photo, and product packaging. Finally, Ford argued that Berry’s claim under the Right of Publicity Act was untimely because, according to Ford, that enactment has a 1-year statute of limitations, see Blair v. Nev. Landing P’ship, 369 Ill.App.3d 318, 307 Ill.Dec. 511, 859 N.E.2d 1188, 1192 (2006) (concluding that Right of Publicity Act supplants common-law tort of misappropriation of likeness and implicitly incorporates 1-year limitations period applicable to that tort), and the attachment to Berry’s complaint establishes the use of her photograph on the packaging for the Vienna hair extensions since October 2006.

The district court denied Ford Model’s motion to dismiss. The court, apparently misreading Berry’s complaint as alleging that Ford had acquired Chade Fashions rather than A-Plus, concluded that Berry’s complaint adequately alleged that a company Ford acquired had contracted with Berry to photograph her and then used those photographs commercially without her consent. The court added that Ford’s assertion of affirmative defenses in a motion to dismiss was premature.

After several discovery battles (resulting in warnings and eventually sanctions against Berry), Ford Models moved for summary judgment. Ford argued again that Berry’s claim under the Right of Publicity Act is barred by a 1-year statute of limitations, which, in Ford’s view, started running after the last known date of publication: October 1, 2006 (the date Berry purchased the product). Because Berry did not file her complaint until three years later, Ford continued, her claim is untimely. Ford also argued that Berry had no evidence that Ford played any role in misappropriating her image. Finally, Ford introduced uncontested evidence that its acquisition of Aria Modeling Agency (which had acquired A-Plus) explicitly excluded liability based on events occurring before the transaction closed in 2003. For that reason, Ford insisted, it is not responsible for any claims arising from Berry’s contract with Chade Fashions.

Berry disputed that her claim was untimely. She disagreed with Blair and argued that, because the Right of Publicity Act is silent about the statute of limitations, the default 5-year period for “all civil actions not otherwise provided for” should govern. See 735 ILCS 5/13-205; Toney v. L’Oreal USA, Inc., No. 02 C 3002, 2002 WL 31455975, at *3 (N.D.Ill. Nov. 1, 2002) (concluding, without benefit of Blair, that limitations period is five years by default), vacated on another ground, 406 F.3d 905 (7th Cir.2005) (not discussing statute of limitations). Alternatively, she argued that her claim was timely even if the statute of limitations is one year because, she insisted, the use of her photograph was ongoing (though she expressly admitted that no evidence exists of a sale or use of her image after October 2006). On the merits Berry argued that [454]*454Ford Models is a proper defendant based on successor liability, which, she asserts, is a disputed issue for the jury to decide.

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Bluebook (online)
525 F. App'x 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-ford-models-inc-ca7-2013.