Key Takeaways
- The Illinois Right of Publicity Act limits use of a person’s identity. This includes the commercial use of a name, image, likeness, or voice when tied to promoting a healthcare practice or service.
- HIPAA authorization does not automatically cover publicity rights. Even if health information is properly protected, separate consent may still be required when a patient’s identity is used in advertising or promotional materials.
- Care providers should use explicit written releases for marketing content.
This is especially important for testimonials, before-and-after photos, social media posts, and any content where a patient can be identified.
Understanding the Illinois Right of Publicity Act in Healthcare Marketing
The Illinois Right of Publicity Act governs how a person’s identity can be used for commercial purposes. The law is increasingly relevant to physicians and healthcare providers who use patient stories, testimonials, or images in marketing, although it is more often discussed in entertainment or advertising contexts.
For physicians, clinics, and other healthcare practices, this issue typically arises in day-to-day promotional activities such as website content, social media posts, and patient success stories. Even when a patient agrees informally or signs a general HIPAA authorization, using their identity for promotional purposes may still require additional legal permission under Illinois law.
What the Illinois Right of Publicity Act Covers
The Illinois Right of Publicity Act protects an individual’s right to control the commercial use of their identity. This includes:
- Name
- Photograph or image
- Voice
- Likeness or recognizable identity features
A violation can occur when a person’s identity is used to advertise or promote services without proper consent. In healthcare settings, this is most commonly triggered when a patient is identifiable in marketing materials or is presented as endorsing a provider or practice.
The key issue is commercial use. If the content is intended to attract patients, promote services, or enhance the reputation of a practice, it may fall within the scope of the Act.
Where Physicians and Healthcare Providers Commonly Face Risk
Healthcare marketing often relies on real patient experiences. However, several common practices can raise concerns under the Illinois Right of Publicity Act.
Patient testimonials and success stories
Written or video testimonials that include a patient’s name or identifiable details may trigger publicity rights if used for promotional purposes.
Before-and-after images
Even if medically relevant, before-and-after photos used in advertising can implicate identity rights if the patient is recognizable.
Social media marketing
Posts that highlight patients, even in educational or “inspirational” formats, may still be considered commercial use if they promote the practice.
Website and digital advertising content
Practice websites often include patient narratives or case studies that may inadvertently identify individuals without appropriate release language.
Video and media content
Interviews, clinic walkthroughs, or promotional videos that include patients can create risk if consent is not explicitly tied to marketing use.
HIPAA Authorization vs. Right of Publicity Consent
One of the most common compliance misunderstandings is assuming that HIPAA authorization is sufficient for marketing use. HIPAA primarily governs the privacy and disclosure of protected health information. It does not, however, fully address the commercial use of a person’s identity.
The Illinois Right of Publicity Act focuses on a different issue: whether a person’s identity is being used to promote or advertise a product or service. As a result, a standard HIPAA authorization form may not provide adequate protection if it does not clearly authorize commercial use of the patient’s name, image, or likeness in marketing materials.
Physicians and healthcare providers should ensure that publicity or marketing releases are separate, explicit, and tailored to advertising use. This is the best way to ensure compliance with all applicable laws.
Consent Requirements for Healthcare Marketing Materials
To reduce exposure under the Illinois Right of Publicity Act, healthcare practices should obtain clear and specific written consent before using patient identities in marketing. Effective consent should address:
- Specific permission for commercial or promotional use
- Identification of the media types (website, social media, print, video)
- Scope of use and duration
- Whether content can be edited or repurposed
- Revocation terms, if applicable
- Clarity on whether the patient is being portrayed as an endorser
General or implied consent is typically not sufficient when someone’s identity is used in a promotional way. This includes website or social media content, advertising, and other similar uses.
AI-Generated Content and Digital Replicas
The rise of artificial intelligence (AI) adds another layer of risk for healthcare marketing. AI tools can create or alter images, simulate testimonials, or generate synthetic media that resembles real individuals. AI-generated marketing content may introduce additional risks under HIPAA and state publicity laws.
If a patient’s likeness is recreated or manipulated for promotional use, this may still fall within the scope of the Illinois Right of Publicity Act as a digital representation of identity. Physicians and healthcare providers should be cautious when using AI-generated content that resembles real patients or implies patient endorsement. Explicit authorization should be obtained before any such use.
Best Practices for Illinois Healthcare Providers
To manage risk under the Illinois Right of Publicity Act, physicians and other healthcare providers should consider the following practices:
- Use separate marketing release forms in addition to HIPAA authorizations
- Clearly define how patient identity may be used in promotional materials
- Avoid using identifiable patient content without written permission
- Review all website and social media content regularly for compliance
- Establish internal approval processes for marketing materials
- Include AI usage disclosures and consent where applicable
Need Help Reviewing Your Practice’s Marketing Practices?
Healthcare marketing must satisfy multiple legal requirements at once, including HIPAA, state privacy laws, and publicity rights. The Illinois Right of Publicity Act adds an additional layer that many practices overlook when using patient identity in promotional content.
Jackson LLP advises physicians and healthcare providers on compliance issues related to marketing, patient communications, and practice operations. If you are reviewing your consent forms, website content, or advertising materials, legal guidance can help reduce risk and ensure your documentation aligns with Illinois requirements.
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Frequently Asked Questions About the IL Right of Publicity Act
Does the Illinois Right of Publicity Act apply to physicians?
Yes. It can apply when a provider uses a patient’s identity, such as their name, image, or likeness, for promotional or commercial purposes.
Is HIPAA authorization enough for patient testimonials?
No. HIPAA protects the privacy of health information, but the Right of Publicity Act may require separate consent for the commercial use of identity.
Do before-and-after photos require consent under Illinois law?
Yes. If the patient is identifiable and the images are used for marketing, written authorization for commercial use is generally recommended.
Can a physicians or healthcare provider post patient photos on social media?
Not without consent. Even educational or promotional posts may implicate publicity rights if the patient is identifiable.
How does AI affect the Illinois Right of Publicity Act?
AI increases the risk. AI-generated images or likenesses of patients may still trigger legal concerns if used for promotional purposes without explicit authorization.
What should a healthcare marketing release include?
It should clearly state permission for commercial use, specify media types, define scope and duration, and address how the content may be used or modified.
