Three More Yearbook/People Database Cases Signal Trouble for Defendants

May 18, 2022 · by · in Content Regulation, Derivative Liability, E-Commerce, Publicity/Privacy Rights

Yearbook/people database opinions are being issued faster than I can blog them. They are not going well for defendants. The opinions are so lengthy and repetitive that I’m just going to cut-and-paste the parts I think are relatively noteworthy. Sorry for the efficient blogging, but properly keeping up with these cases would be a full-time job.

Boshears v. PeopleConnect, 2022 WL 888300 (W.D. Wash. March 25, 2022)

A yearbook case.

Indiana Publicity Rights Statute. “Boshears admits he has never seen the website and he does not allege that anyone else in Indiana has. Only Boshears’ attorney has viewed the photo on Classmates, and that occurred outside of Indiana.”

However, “Boshears has sufficiently alleged a commercial use of his personality. As alleged in the Amended Complaint, the Classmates’ website uses his image to advertise a paid subscription to its services in at least two ways.”

Also, “Classmates’ use of Boshears’ personality to advertise its subscription service is not newsworthy…. The use of Boshears’ likeness is not alleged to be “enlightening” or newsworthy even if Boshears and his former classmates may have interest in the historical subject matter….Classmates’ use of the photos to sell a subscription—the real focus of this case—has only commercial, not newsworthy value.”

The literary work exception fails because “Boshears attacks only the use of his likeness to sell the subscription service that lets users engage with each other, build profiles, message each other, and view high resolution copies of yearbooks. He no longer attacks Classmates’ use of his likeness to sell yearbooks.” So, I guess the court thinks electronic versions of yearbooks aren’t literary works when they are sold via subscription services, even though the physical copies might be?

Common Law Publicity Rights. The court says the common law claim exists in Indiana.

Arbitration. Counsel’s agreement to the TOS didn’t bind the client to arbitration.

Copyright Preemption. “Classmates’ alleged misuse of his likeness to sell subscription services is not a work of authorship.”

First Amendment. “Boshears seeks to stop…Classmates use of his likeness to advertise its subscription services that allows user to connect and interact and access full resolution copies of the yearbooks. The advertisements at issue that Classmates created are not intertwined with otherwise protected speech.”

Section 230. “The sole issue in this case is whether Classmates’ decision to create advertisements using Boshears’ persona to sell subscription services violates the IRPA and the common law. That content is generated expressly by Classmates and the advertisement is not merely a passive display of content created by another entity, even if it contains a picture from a school yearbook. In this context, Classmates is the content creator and is not entitled to immunity under the CDA.”

Martinez v. ZoomInfo Technologies, Inc., 2022 WL 1078630 (W.D. Wash. April 11, 2022)

The defendant offers a database of information about business professionals.

Article III Standing. “Martinez alleges that her name, personal information, photographs, likeness, and persona have commercial value and that the value is evident in ZoomInfo’s reliance on this kind of information to generate profit….The correct inquiry is whether the plaintiff has alleged a value in the persona and whether she has been denied the economic value from defendant’s non-consensual misappropriation. That has been sufficiently alleged here and it demonstrates Article III standing.” Tautology detected.

Also, the court credits the plaintiff’s allegations that “ZoomInfo’s illegal actions caused Ms. Carter Martinez mental injury and disturbed her peace of mind” and she “is deeply uncomfortable in the knowledge that ZoomInfo is using her name and persona in advertisements for a product with which she has no relationship and which she has no desire to promote.” Again, that’s a tautology.

California Publicity Rights Statute. “while ZoomInfo may operate a database that might concern matters of general interest, its specific use of Martinez’s persona at issue in this case is purely commercial in nature.”

Kellman v. Spokeo, Inc., 2022 WL 1157500 (N.D. Cal. April 19, 2022)

Spokeo is a well-known people database. This is a particularly rough opinion for defendants.

Article III Standing. “The plaintiffs allege that Spokeo misappropriated their names, likenesses, and personas—a harm recognized at common law. They allege that Spokeo unjustly profited from their intellectual property—a harm recognized at common law. They allege that Spokeo infringed their right to control commercial use of their names and identities—a harm recognized at common law. And they allege that Spokeo’s actions caused them emotional and mental harm—a harm recognized at common law.”

Ohio Publicity Rights. “Newell has adequately pleaded commercial value in two ways. First, he has pleaded that individuals can use Spokeo’s service to find specific names; if they type his name, his “teaser” is one result. Accordingly, he has adequately pleaded that the pertinent audience would sufficiently recognize his distinct identity. Second, because Spokeo uses Newell’s persona for commercial gain—that is, to incentivize people to subscribe—it reasonably implies that his persona does have at least some commercial value.” Again with the tautologies.

Indiana Publicity Rights. “It appears plausible, for instance, that procuring the information from Indiana sources and republishing it to anyone with an internet connection suffices as an act or event ‘within Indiana.'” (This line made me think of this song). Also, “Fry is not a public official or a person of public interest; communicating some of his information in a teaser is not newsworthy.”

CCPA. “All that these provisions of the CCPA do are exempt publicly available data from special notification and disclosure rules that the statute itself imposes on companies that collect Californians’ data. They do not expressly or impliedly set aside privacy-based tort claims or related UCL claims.”

Though I agree with this conclusion, I still can’t discuss the CCPA without the CCPA’s signature GIF.

Section 230. “Spokeo is not alleged to merely host user-generated content, it is alleged to actively take content from other sources, curate it, and upload it to its site in a novel configuration for repurposed uses. That makes it at least ‘in part’ responsible for the ‘creation and development’ of this material. Indeed, the allegations are that there are no users of Spokeo who generate content at all.” HELLO GOOGLE SEARCH RESULTS!

Dormant Commerce Clause. “Spokeo’s argument is, as best I can tell, that it will have to follow different states’ laws about what it can and cannot show to users. Spokeo barely attempts to show that this incidental burden—which is similar to countless similar burdens on any company operating in multiple states—approaches being “clearly excessive” in relation to the benefits each state receives.”

First Amendment. “the teasers have a set of features that, together, courts have held show are commercial speech. The teasers are advertisements. They reference a specific product. And Spokeo has economic motivation for publishing them.”

Applying Central Hudson, “the plaintiffs make a strong case that the teasers are likely to deceive. They place individuals’ names next to large lettering indicating that they ‘may’ have felonies, arrests, and similar records even when that is not true. In context, it appears relatively clear that the point of using phrases like that is to attract interest for the commercial product. And it seems likely that reasonable people may be deceived into believing that individuals have committed bad or criminal acts when they have not.”

Final Thoughts

Ugh, this was a tough blog post to assemble. U-G-L-Y. Not sure there are many broad lessons to offer, but I’ll try one: if courts think that you’re disseminating ad copy, they will make all inferences against you. However, we already knew that. As I’ve pointed out before, in the publicity rights chapter of our Advertising Law book, the defendants lose all of the cases. In particular, that state publicity rights laws are a longstanding morass of doctrinal anarchy that weighs heavily against defendants.

Prior blog posts on Yearbook and Related Cases