Avvo’s Attorney Profile Pages Don’t Violate Publicity Rights–Vrdolyak v. Avvo
Publicity right laws often prohibit the use of third parties’ names (or other aspects of their personalities) “for commercial purposes.” So what’s a “commercial purpose”? Fuck if I know. We might make the term coextensive with the Constitutional law definition of “commercial speech,” but that provides precisely zero help because there are multiple inconsistent definitions of that term too. Because no one really knows the commerciality borders for publicity rights (or any other) laws, defendants sometimes struggle to get quick courtroom wins in publicity rights cases, even when they publish obviously editorial content.
Against this backdrop, Avvo scored a nifty early victory in a case challenging its attorney profiles. Avvo creates the profiles without consent from the profiled attorneys, and then displays advertising on the profiles and uses them to upsell Avvo memberships. A putative class action of attorneys claimed this activity violated their publicity rights.
The court expresses befuddlement about the definition of “commercial purposes” and its interplay with the definition of “commercial speech,” and it further expresses befuddlement about whether an Illinois publicity rights claim would fail even if the court concludes the defendant didn’t engage in commercial speech. Sigh. Nevertheless, the court says Avvo’s profile pages are like Yellow page directories, which receive full First Amendment protection, which trumps the Illinois statute. (Cite to Dex v. Seattle). To get around this, the plaintiff argued that “placing another attorney’s ‘ad’ or ‘Sponsored Listing’ on plaintiff’s profile page turns the entire profile into an ad for the sponsored attorney.” The court rejects the argument because:
to hold otherwise would lead to the unintended result that any entity that publishes truthful newsworthy information about individuals such as teachers, directors and other professionals, such as a newspaper or yellow page directory, would risk civil liability simply because it generated revenue from advertisements placed by others in the same field.
Kudos to the judges (and the litigators) for getting it right…and doing so early in the case. While not a major surprise, the ruling is nevertheless noteworthy because a contrary result would have been devastating. Compare Cross v. Facebook, where the court’s obviously incorrect publicity rights ruling seems poised to turn publicity rights into a right to be forgotten, a potential doctrinal disaster. With rulings like that, unfortunately we will continue to see overreaching Internet publicity rights claims from plaintiffs.
Case citation: Vrdolyak v. Avvo, Inc., 2016 WL 4765716 (N.D. Ill. Sept. 12, 2016). The initial complaint (Bernstein v. Avvo).
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* Amazon Defeats Publicity Rights Lawsuit Over ‘A Gronking To Remember’ Book Cover
* Hacky Sacker’s Publicity Rights Claim Against Energy Drink Tossed–Martin v. 5-Hour Energy Drink
* LinkedIn Can’t Shake Publicity Rights Claims Based on Reminder Emails
* Email Harvesting: Repeated Emails From LinkedIn May Violate Publicity Rights
* Plastic Surgeon’s “Before & After” Photos Violate NY Publicity Rights–Manzione v. Mashkevich
* Siblings Use Publicity Rights To Try To Block Sister From Blogging About Mom–In re Reynolds
* Gossip Site That Uses Misidentified Photo May Be Liable for Publicity Rights Violation — Edme v. Internet Brands
* Ex-Employer’s Hijacking of a LinkedIn Account Is a Publicity Rights Violation–Eagle v. Morgan
* Buying Keyword Ads on People’s Names Doesn’t Violate Their Publicity Rights–Habush v. Cannon
* Lindsay Lohan Loses Publicity Rights Claim Against Pitbull Over Song Lyrics–Lohan v. Perez
* Facebook “Sponsored Stories” Publicity Rights Lawsuit Survives Motion to Dismiss–Fraley v. Facebook
* Publicity Rights Class Action Against Facebook Over Promotion of ‘Friend Finder’ Service Dismissed — Cohen v. Facebook
* TheDirty Defeats Publicity Rights Claims–Gauck v. Karamian
* Scribd Can’t Shake Copyright and Publicity Rights Lawsuit on Motion to Dismiss–Williams v. Scribd