(concurring in the result).
The majority opinion quotes from Shakespeare “The evil that men do lives after them.” Defendants’ brief is replete with epithets referring to A1 Capone as “most ruthless killer of the century,” “killed every competitor,” “name, likeness and personality stand for nothing but crime,” and “most notorious gangster in the era in which he lived.”
I hold no brief for A1 Capone. However, there is nothing in this record to indicate that his widow and son have been other than peaceful, law-abiding citizens. They claim they have been wronged by the defendants and, in the instant suit, they are seeking redress.
Until the spring of 1959, when the course of conduct of certain defendants commenced, Mae Capone, widow of A1 Capone, and his son, Albert, usually called “Sonny”, were leading a peaceful life in comparative obscurity. Sonny was operating a restaurant in a Florida city.
As a direct consequence of the commercial exploitation of the name and likeness of the deceased husband and father, in a series of television dramas which were broadcast over nation-wide networks for six consecutive years, the peaceful lives of the widow and son were shattered.
Soon after these “Capone” shows were broadcast, Sonny’s children at school were ridiculed by their classmates to the extent that they often returned to their home in tears. The situation, as the broadcasts continued week after week, became so distressing that Sonny felt it necessary to remove his children from school, sell his home and restaurant business, change his name and move to another city.
In 1959, Desilu Productions, Inc. (Desilu) sold to Columbia Broadcasting System a two-part drama called “The Un*421touchables.” This was a dramatization of certain wholly fictional events supposed to have happened during the lifetime of Capone. The scenes and incidents pertaining to Capone were pure invention and were the product of the imagination of the script writers. The commercial exploitation of the name “Capone” succeeded so well that Desilu produced for broadcast on the American Broadcasting Company a weekly series also entitled “The Untouchables.” This weekly broadcast continued for the period of five years. Throughout the series, the name “Capone” was used and, at times, his purported likeness.
Desi Arnaz was president of Desilu. He had been a boyhood friend of Sonny who pleaded with him to refrain from proceeding with the production of “The Untouchables.” Arnaz refused to discuss the matter with Sonny. Apparently the profit motive outweighed any concern about injury to innocent people.
Another full-scale exploitation of the name, likeness and personality of A1 Capone was created by Desilu in an episode called “The Big Train.” This purportedly portrayed a plot by Capone to escape while being transferred from Atlanta prison to Alcatraz. This whole incident was completely fictitious. Nothing like it as far as A1 Capone was concerned, ever occurred. In fact, a public protest of this broadcast was made to the Federal Communications Commission by James V. Bennett, Director of the Federal Bureau of Prisons.
Plaintiffs argue that the magnitude of the commercial exploitation of the name, likeness and personality of Capone by Desilu makes this a case of first impression. Plaintiffs point out that Desilu depicted more than one hundred fictitious murders, machine gunnings, beatings and other crimes of violence which were falsely attributed to A1 Capone, and that for approximately six years, the widow and son were mentally tortured week after week.
The defendants' have been profiting, not from A1 Capone’s life of crime, but from the commercial exploitation of publicity values inherent in his name, likeness and personality as portrayed in the telecasting of a series of wholly fictional crimes.
I think the right of privacy of Mae Capone and Sonny Capone was invaded by Desilu and other defendants whose conduct as hereinbefore described is, in my mind, reprehensible. Their fictitious products overstepped the bounds of decency. But the question is — do the widow and son have a claim for invasion of privacy under Illinois law?
Several of the cases relied on by defendants and, to some extent, in the majority opinion, deal with a specific crime or crimes which had been committed and which were a matter of public record. These cases should be distinguished from the situation where wholly fictitious crimes were depicted as exploiting the name of Capone.
However, in this diversity case, we must decide whether Illinois courts would hold that a remedy exists under Illinois law for the violation of the privacy of the widow and son of Capone. I conclude they would not. I must, therefore, concur in the result reached by the majority.