The last year has seen a rise in the number of complaints alleging misappropriation of likeness or right of publicity violations against media and technology companies. Companies offering free previews of databases containing personal information about individuals or selling customer lists should be particularly aware of these lawsuits.
These cases follow two general patterns. First, plaintiffs have brought claims against defendants who offer paid access to online directories or databases with “free preview” functions that allow anyone to see a subset of information about a person they search who is listed in the database. This includes companies offering databases of employment and professional information, family and genealogical information, and background reports. The plaintiffs in these cases allege that the free previews serve as advertisements for full, paid access to the database and that therefore when the defendants show their names and information in the free preview, it is for commercial purposes without their consent.
There have been at least ten such cases filed across four states, collectively alleging violations of three different states’ laws. Although the majority of these cases are still in a preliminary stage, at least two have faced motions to dismiss—with one resulting in dismissal of the plaintiffs’ right of publicity claim and the other allowing it to proceed.
In Verde v. Confli-Chek, Inc., No. 21 C 50092, 2021 WL 4264674 (N.D. Ill. Sept. 20, 2021), an Illinois federal court dismissed a case brought under the Illinois Right of Publicity Act (IRPA) based on the hypothetical nature of the harm at issue. A successful right of publicity claim requires a showing that the information at issue was shared with a third party. Here, the plaintiff had not alleged that any third party had ever searched for her name or viewed her “free preview” on the defendant’s website, nor had she alleged that the defendant had otherwise provided her information to a third party. Id. at *4–5. Accordingly, the court concluded that the plaintiff had failed to plausibly allege a concrete injury under IRPA and dismissed her claim.
Two days later, a different judge at the same Illinois federal court denied a motion to dismiss in a second “free preview” case brought under IRPA, Siegel v. ZoomInfo Technologies, No. 21 C 2032, 2021 WL 4306148 (N.D. Ill. Sept. 22, 2021). The court noted that the plaintiff in this case may ultimately suffer a similar failure as in Verde if she is unable to prove that any third party viewed her information, but deemed that issue more appropriate for resolution following discovery. Id. at *4. Finding that the plaintiff had plausibly alleged that the defendant, ZoomInfo, used her identity in free previews to promote its paid monthly subscription, the court denied the motion to dismiss. Id.
As more courts rule on motions to dismiss (and as more cases are potentially filed), it is possible that courts may take the view that merely offering a free preview is not a commercial purpose as contemplated by the right of publicity laws. But unless and until that happens, companies offering such free previews face the risk of similar lawsuits and should plan accordingly.
The second group of cases involves allegations against publishing companies for the sale of magazine subscriber lists. The plaintiffs in these cases argue that, by selling subscribers’ names and addresses, the publishers are using their readers’ names for commercial purposes without their consent.
There have been at least eleven such cases filed across four states, collectively alleging violations of six different states’ laws. All of these cases have been filed in recent months, and no court has yet issued a dispositive ruling on any of them. However, at least one court in a similar context has taken the view that selling personal information is not a commercial purpose under the right of publicity laws because the information is the product. Dobrowolski v. Intelius, Inc., No. 17-CV-1406, 2018 WL 11185289, at *3 (N.D. Ill. May 21, 2018). This suggests this variety of cases may face more of an uphill battle than the other variety.
Either way, both sets of cases highlight two important points. First, regardless of how data is obtained, plaintiffs might argue that they have a proprietary interest in their information. This could be the case even for data received from open and official sources, such as public records.
Second, what constitutes the use of a person’s name or likeness for commercial purposes may not be cut and dry. Neither the “free preview” of a database nor subscriber information lists fit the mold of the unauthorized and uncompensated advertisements typically thought to be subject to the right of publicity claims. However, it is possible that courts may accept these plaintiffs’ broad interpretations of what constitutes commercial use of a person’s name or likeness under the right of publicity laws.