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Publicity class-action lawsuits appear to be getting a lot of attention
JUSTIN O. KAY
ZOE K. WILHELM
Law Bulletin columnists
Published: April 4, 2017
When one thinks of a “right of publicity,” one’s thoughts might reasonably first turn to actors and athletes, and the protections afforded to their images and likenesses because of their perceived unique economic value.
Case law is replete with examples of lawsuits invoking such protections on behalf of celebrities, and the lawsuits themselves are often front page news: The dispute between retired professional basketball player Michael Jordan and Dominick’s Finer Foods over the use of Jordan’s identity, which resulted in a jury award to Jordan of $8.9 million, is one recent example.
Celebrities are not the only potential plaintiffs in such suits, however. Ever in search of new causes of action (particularly ones authorizing the recovery of statutory damages), plaintiffs’ class-action attorneys have started bringing purported class actions under right of publicity statutes on behalf of ordinary citizens, alleging that the purported use of their names, images and likenesses without consent runs afoul of the law.
Targets of these suits have included social media platforms, apps developers and most recently, data aggregators. We can expect more industries to find themselves targeted as the plaintiff’s bar pushes the envelope and uses the class-action device to leverage and expand the law in ways legislatures likely never envisioned.
The statutes
Around 32 states recognize a right of publicity. Of those, about two-thirds recognize the right under the common law, while the remainder enacted a statute to recognize the right. The Illinois Right of Publicity Act, enacted in 1999, is representative: Illinois’ Right to Publicity Act recognizes that an “individual’s identity” (defined as “any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness or (vi) voice”) is a property right, and that such identity cannot be used for “commercial purposes” (i.e., for fundraising; in advertising or promotions; or in connection with the sale of any products, merchandise, goods or services) without the “previous written consent” from the individual or his or her representatives.
Notably, the act provides for the recovery of actual damages or profits from the unauthorized use (or both) or statutory damages of $1,000, whichever is greater; the recovery of punitive damages in the case of willful violations; and attorney fees.
Other states with similar statutory damages demands include Alabama (actual damages or $5,000), Indiana ($1,000 or $3,000 for willful violations), Ohio (not less than $2,500, not more than $10,000), Texas ($2,500 and the profits from the unauthorized use), and Washington ($1,500).
Recent filings
Over the past several months, the plaintiffs’ class-action bar has been testing the Illinois act’s limits and other right of publicity statutes.
For example, in a purported class action filed in February 2016 by Edelson P.C. on behalf of plaintiff Christine Dancel against Groupon in the Cook County Circuit Court’s Chancery Division, the plaintiff alleged that Groupon violated the act by using the photographs and likenesses of individuals who “tagged” their photographs on Instagram with the name of the restaurant or store featured in the Groupon offering.
In early October, the court granted in part and denied in part Groupon’s motion to dismiss, striking plaintiff’s claim for punitive damages without prejudice, but otherwise permitting the case to go forward.
In another purported class action filed in August of last year by Edelson in the Northern District of California, the plaintiff alleged that Hey Inc. and Twitter violated the recently enacted Alabama Right of Publicity Act when Twitter permitted Hey Inc. to access and import the identities (including names and photographs) of Twitter uses without their consent to facilitate Hey Inc.’s trading-card-type app.
Twitter moved to dismiss the complaint in November, arguing that the court lacked Article III jurisdiction, and that the First Amendment, the Communications Decency Act and Twitter’s terms of service (which included a consent provision) barred the plaintiff’s claims.
After the motion was fully briefed, and the day after the initial case management conference, plaintiff voluntarily dismissed the case, only to refile several weeks later in Superior Court in San Francisco.
On Feb. 22, Twitter moved to dismiss the complaint, reasserting its arguments that the First Amendment, the Communications Decency Act and Twitter’s terms of service bar plaintiff’s claims.
And on Jan. 23, the Edelson firm filed another purported class action in the Cook County Circuit Court’s Chancery Division, alleging that Everalbum’s photo storage service violated the Illinois act when, without the permission of the users, it sent allegedly deceptive advertisements to the users’ contacts falsely claiming that the users had “recommended” that their contacts should “check out your photos on Ever.”
On March 1, Everalbum removed the case to federal court in the Northern District of Illinois.
The recent spate of filings against data aggregators began last October (perhaps not coincidentally) shortly after the complaint against Groupon survived the motion to dismiss when Illinois resident Michael Siegel filed a putative class action against Intelius Inc., now known as PeopleConnect Inc. in the Cook County Circuit Court’s Chancery Division.
The suit alleged that Intelius is in the business of providing an online directory containing large amounts of personal information about individuals in the United States, and that one of the ways in which Intelius generates business is through internet search engines: entering a person’s name in the search engine generates, among other things, a link to Intelius’ website offering limited information about that person, along with the option to purchase more comprehensive information.
Siegel claimed that in so doing, Intelius violated the publicity act and sought to represent a class of “all Illinois residents whereby Intelius made public use of, or held out their identity in connection with the sale, advertising or promotion of Intelius products” since 2011.
After removing the case to the Northern District of Illinois, Intelius filed in mid-January a motion to dismiss, arguing the court lacked personal jurisdiction over Intelius, but alternatively and in any event, the First Amendment, the Communications Decency Act and Illinois’ act barred Siegel’s claims. Several days later, the plaintiff voluntarily dismissed his case.
The day after Siegel filed his notice of voluntary dismissal, the Edelson firm filed its own putative class action complaint against Intelius on behalf of Anna Dobrowolski, also in the Cook County Circuit Court’s Chancery Division, also asserting a violation of the publicity act, that was also shortly thereafter removed by the defendant to the Northern District of Illinois’ district court.
Contemporaneous with this new filing against Intelius, Edelson also filed three additional suits in the Cook County Circuit Court’s Chancery Division — one on behalf of Dobrowolski and two on behalf of another plaintiff, Nicole Vinci — against Instant Checkmate, Beenverified and Spokeo.
The theory in these four new filings is that paid advertisements stating “We found [the person’s name]” on search engines like Google are auto-generated using dynamic keyword insertion, and that the insertion of the searched-for person’s name is designed to draw attention to informational products for sale and is therefore violating the Illinois act.
On Feb. 1, a fifth case asserting nearly identical allegations was filed against Whitepages.com by Kevin Klingler, represented by a different law firm.
In late February, Intelius, Instant Checkmate, Beenverified, Spokeo and Whitepages all removed their respective cases to federal court. The case against Whitepages was voluntarily dismissed without prejudice by the plaintiff shortly after it was removed. The other cases remain pending.
What’s next
Over the past several years, class actions pursuing right of publication claims have met with varied success. On the one hand, there are cases like Perkins v. LinkedIn Corp., filed in the Northern District of California in 2013, which alleged, among other things, violations of California’s common-law right of publicity based on LinkedIn’s use of members’ identities and e-mail addresses.
The LinkedIn case survived two motions to dismiss asserting arguments similar to those asserted by Twitter and Intelius and received in February 2016 court approval of a $13 million class-wide settlement.
On the other hand, there are cases like Vrdolyak v. Avvo Inc., filed in the Northern District of Illinois in 2016, which alleged that Avvo’s listing of attorney profiles ran afoul of the Illinois act, but which was dismissed with prejudice based on the court’s view that Avvo’s actions constituted noncommercial speech protected by the First Amendment.
Many of the same arguments presented in the motions to dismiss these two cases are now being made (or are expected to be made) in the most recent spate of right of publicity cases, and if these recent filings withstand motions like the case against LinkedIn, we expect to see further litigation testing the boundaries of right of publicity statutes.
Justin O. Kay is a partner at Drinker Biddle & Reath LLP. He focuses on defending complex civil matters in federal court, state court and before federal agencies. He is a member of the firm’s class actions practice and Telephone Consumer Protection Act practice. Zoë K. Wilhelm is an associate at the same firm. She has a broad litigation practice, with an emphasis on cases involving privacy-based claims, corporate governance disputes and consumer class actions.