CHICAGO - A federal appeals panel won’t let a U.S. Army veteran revive his lawsuit against Walmart and other retailers for selling products, without his permission, featuring an image taken of him while on active duty in Afghanistan.
The legal battle dates to 2021, when U.S. Army veteran Nicholas Giovannelli accused the companies of violating the Illinois Right of Publicity Act through promotion and sales of a poster featuring a March 2009 picture of him, taken by an Army photographer, without his consent. Three different federal judges have presided over various aspects of the litigation: Jeffery Cummings, LaShonda Hunt and Edmond Chang.
According to court documents, from 2007 until a 2015 medical discharge, Giovannelli served in more than 100 combat patrols, including multiple tours of duty in Afghanistan. According to his complaint, Giovannelli “was awarded the Purple Heart, Combat Infantry Badge and Army Commendation with V Device, for acts of heroism while involved in conflict with an armed enemy.”
In his lawsuit, Giovannelli alleged seeing the image on the poster “retriggered his post-traumatic stress disorder.” After a judge dismissed Giovannelli’s emotional distress claim, the businesses won summary judgment on the grounds Giovannelli waited too long to sue under the IRPA.
In August, Judge Chang ruled Walmart couldn’t force Giovannelli to pay more than $36,000 in legal bills for defending against the lawsuit, saying that although his complaint might not have been timely, it wasn’t filed in bad faith. But Giovannelli also asked the U.S. Seventh Circuit Court of Appeals to consider his argument that under the law state courts would apply a discovery rule, which would mean the statutory limitation window opens only when he learned of the poster, not whenever it was first produced.
Seventh Circuit Judge Michael Brennan wrote the panel’s opinion, filed Jan. 22; Judges Michael Scudder and Doris Pryor concurred.
Brennan explained how the poster came to be: After the Army photographer took the shot, it ended up on the U.S. Department of Defense website. Stocktrek Images downloaded it from there, then licensed it to Posterazzi. That company sold the image online, as did companies like Walmart, Amazon and Pixels. Giovannelli learned of the image in 2020 from an Army colleague who found the posters while doing an online search for their unit.
Although Giovannelli sued in state court, the complaint was removed to federal court where, according to Brennan, a judge “severed the case into several cases to cure a misjoinder problem,” then the summary judgment was granted in each case.
“Under state law, the district judges reasoned, Giovannelli’s claim was time-barred under Blair v. Nevada Landing Partnership, which held that the statute of limitations for his claim under the Act is one year, beginning when the photo is published,” Brennan wrote, referencing a 2006 Illinois Appellate Court ruling.
In Blair, a steakhouse manager sued in 2005 over photos he posed for in 1994. Because the IRPA lacks a statutory limit, the appellate panel incorporated the common-law tort of appropriating a likeness — which has a one-year limit — because the IRPA “completely supplanted” the tort. The panel then answered when that one-year window opens, choosing the “single-publication rule” pegging the clock to publishing and not when a plaintiff becomes aware, and not the discovery rule.
Giovannelli challenged that analysis, arguing the Blair plaintiff’s claim would’ve been time-barred regardless, because he discovered the photos many years before suing. But Brennan said Blair specifically asked the court to apply the discovery rule — “There would have been no reason for Blair to claim the discovery rule’s benefit if it did not help him,” the judge said — and added the panel’s refusal to do so was essential to the decision and therefore controlling precedent.
Even if it agreed with Giovannelli, Brennan wrote, the federal appeals panel is able to look at all other information to determine how the Illinois Supreme Court might rule. Doing so, it found “good reason to think” that body would’ve affirmed the Blair outcome. The leading evidence is that court’s 2021 opinion in Ciolino v. Simon, a defamation case regarding a documentary film, in which the majority “cited Blair and approved of its application of the single-publication rule.”
However, Brennan continued, “There is a recognized exception to the single-publication rule. The discovery rule does apply if a plaintiff can show the publication was ‘hidden, inherently undiscoverable, or inherently unknowable.’ This exception makes sense: a plaintiff cannot be faulted for failing to discover the undiscoverable.”
But the panel rejected Giovannelli’s arguments in support of that exception. Although an online search for his name didn’t reveal the posters, that doesn’t render them “hidden” or “inherently undiscoverable.” Further, although courts have ruled in favor of plaintiffs who couldn’t “discover” published information available only to subscribers, none of the online retailers Giovannelli targeted had the posters behind paywalls or otherwise shielded from the public.
Finally, the court declined to sanction Giovannelli for including Stocktrek Corporation in his appeal, finding it functionally a clerical error from the original complaint when he intended to sue Strocktrek Images.
Brennan said Giovannelli didn’t oppose Stocktrek Corporation’s earlier motion for summary judgment on the grounds it wasn’t involved and the panel didn’t find the appeal “a surreptitious attempt to rejoin Stocktreck Corporation.”
Giovannelli has been represented in the action by attorneys Craig D. Tobin and Jessica Firlej, of the firm of Tobin & Munoz, of Chicago.
Walmart was represented by attorney James K. Borcia and others with the firm of Tressler LLP, of Chicago.
