IP Law Daily, PUBLICITY RIGHTS—7th Cir.: Discovery rule does not apply to Illinois right of publicity claims, (Jan 23, 2026)

By Matthew Hersh, J.D.

A federal appellate panel, making its best guess about how Illinois’s top court would rule, determines that state-law publicity claims accrue at time of publication.

An Army veteran who claimed that a series of stock photo sites and major retailers used a service photograph of him without his permission brought his lawsuit too late, the U.S. Court of Appeals for the Seventh Circuit has held. The court, making what is traditionally known as an “Erie guess” as to how the Illinois Supreme Court would rule if directly confronted with the issue, found that Illinois law precludes publicity claims that are brought more than one year after they accrue, even they were not or could have been discovered until later (Giovannelli v. Walmart Inc., Nos. 24-2869, 24-3103, 25-1185 & 25-1223 (7th Cir. Jan. 22, 2026)).

The lawsuit was brought by Nicholas Giovannelli, an Army veteran who served in Afghanistan. In 2009, while Giovannelli was on patrol, an Army photographer snapped an action shot of him. The photo was posted on the Department of Defense website, where it was publicly available. Stocktrek Images downloaded the picture and licensed it to Posterazzi, which used Giovannelli’s combat photo in posters. The image was sold online by companies including Posterazzi, Walmart, Pixels, and Amazon.

Giovannelli sued the photography sites and retailers in the year 2020. According to his complaint, he had been given a medical discharge from service for a series of medical issues including herniated discs in his lower back and neck, post-concussion headaches as a result of traumatic brain injury, and post-traumatic stress disorder, or PTSD. His claim was brought under a provision of Illinois’s Right of Publicity statute that prohibits using an individual’s identity for commercial use without their consent. 765 ILCS 1075/30(a). The veteran sought damages in excess of $1 million dollars for emotional damages and exacerbation of his PTSD.

The case was removed to federal court and then severed into multiple different actions. In each, the defendants argued that the claim was barred by the statute of limitations. The veteran claimed that even though he did not file his claim until years after the photographs were first published, his claim was still timely because he did not discover those images until 2020. However, the district court, finding that Illinois had no “discovery” rule for right of publicity claims, dismissed in each case.

The veteran appealed, leading to this decision.

Statute of limitations. The court found that the veteran’s claim was time-barred. Because the claim reached the federal courts due to diversity, the court was required under the venerable doctrine of Erie R.R. v. Tompkins, 304 U.S. 64 (1938), to apply state law. Where the state’s highest court has not yet weighed in on the question, the panel noted, the federal court was required to make its best prediction, or “Erie guess,” as to how that court would rule. Applying that doctrine, the court found, the Illinois courts would find that the claim was barred by the statute of limitations.

The claim was barred, the court reasoned, because the one Illinois appellate court that had addressed the issue, in Blair v. Nevada Landing Partnership, 859 N.E.2d 1188, 1192 (Ill. App. Ct. 2006), had found that Illinois had no discovery rule for publicity claims. Although Illinois courts originally recognized “invasion of privacy” torts under the common law, the court noted, the legislature replaced this tort in 1999 with a statutory cause of action for appropriating another’s name or likeness, called “The Right of Publicity Act.” Although that Act lacked an express statute of limitations, the court noted, the Illinois appellate court in Blair observed that a one-year limitations period applied to common law claims. Because the common-law tort of appropriating a likeness had a statute of limitations of one year, and the Act “completely supplanted the common-law tort,” the Blair court had reasoned, the Act therefore adopted the one-year statute of limitations. “Blair thus resolves Giovannelli’s appeal,” the court reasoned.

The case is Nos. 24-2869, 24-3103, 25-1185 & 25-1223.

Judge: Pryor, W.

Attorneys: Craig D. Tobin (Tobin & Munoz, LLC) for Nicholas Giovannelli. James K. Borcia (Tressler LLP) for Walmart Inc.

Companies: Walmart Inc.

MainStory: TopStory PublicityRights IllinoisNews IndianaNews WisconsinNews GCNNews