, the right of publicity, and copyright preemption

Callahan v. PeopleConnect, Inc., 2021 WL 5050079, No.
20-cv-09203-EMC (N.D. Cal. Nov. 1, 2021)

Plaintiffs in this putative class action alleged that
PeopleConnect misappropriated their names, photographs, and likenesses and used
the same in advertising its products and services, “including reprinted
yearbooks and subscription memberships to the website” They
sued for ROP violations, intrusion on seclusion, and unjust enrichment.

The court rejected the CDA §230 defense because PeopleConnect
would only count as providing “information provided by another information
content provider” if the other info content provider had given it the yearbooks
contemplating that they could be published online. And there was at least a
question of fact whether the yearbook authors/publishers had done so; rather
the yearbooks seemed to have been provided by users/purchasers. A service
provider can be “held accountable if, e.g., it is obvious that the person or
entity providing information to the service provider is not the creator or
developer of the information.” [I’m guessing the court means to cabin its
holding to situations in which the service actively decides to put specific
content online instead of just serving as a user conduit for, e.g., revenge
porn.] Here, it was obvious that yearbook users/purchasers weren’t
creators/developers of the yearbooks.

Copyright preemption: PeopleConnect did a little better. Plaintiffs
argued that, because PeopleConnect didn’t own copyright in the yearbooks, it
had no standing to assert copyright preemption. The court rejects this argument,
for good reason. (The court doesn’t mention it, but one reason clearly implicated
by this situation is first sale: if someone has a lawfully made copy of a
yearbook to sell, their lack of copyright ownership shouldn’t affect the fact
that ROP claims against the sale are preempted.) The Ninth Circuit has clearly

Whether a claim is preempted…does
not turn on what rights the alleged infringer possesses, but on whether the
rights asserted by the plaintiff are equivalent to any of the exclusive rights
within the general scope of the copyright. The question is whether the rights
are works of authorship fixed in a tangible medium of expression and come
within the subject matter of the Copyright Act. If a plaintiff asserts a claim
that is the equivalent of a claim for infringement of a copyrightable work,
that claim is preempted, regardless of what legal rights the defendant might
have acquired.

Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d
1146 (9th Cir. 2010). Allowing such a claim would provide “a de facto veto over
the [copyright holder’s] rights under the Copyright Act,” [including its rights
to tolerate use/also would provide a veto over fair uses].

But were the claims preempted? Yes, as applied to ads for copies
of yearbooks, but no, as applied to ads for the subscription service. “[U]sing
a portion of the copyrighted work to promote the copyrighted work does not take
a publicity-right claim outside of copyright preemption.” This distinction
between the reprints and the service doesn’t make a ton of sense to me, but
perhaps I misunderstand the subscription service—if it gives you access to the
materials in the yearbooks, then I don’t understand why the ruling on the
yearbooks doesn’t also cover the service. This seems to me like saying that ROP
claims are preempted for advertising a movie, but not for advertising that you can
see that movie on HBO. But the court cited another case with favor that declined
to find copyright preemption because defendant did not simply “display[ ] or
publish[ ] photographs depicting Plaintiffs”; “[w]here, as here, the platform
containing a plaintiff’s photograph sells information about the plaintiff and
not limited rights to his image alone, the Copyright Act will not preempt a
claim concerning the use of the image.” So the ROP and unjust enrichment claims
were preempted only to the extent they were based on advertising for reprinted

In addition, the complaint stated a claim for ROP
violations: The statute requires injury, and plaintiffs asserted an economic
injury because “[i]f a defendant uses a plaintiff’s name and/or likeness to
advertise, then it can reasonably be inferred that the name and/or likeness has
some economic value, even if small.” California courts have clearly held that
“the statutory right of publicity exists for celebrity and non-celebrity
plaintiffs alike.” And statutory damages were also available, even if the only injury
was economic and not mental anguish.

Nor was endorsement required to violate the statutory ROP,
only use of name or likeness. And the public affairs exception in the statute
didn’t apply. The exception is “based on First Amendment concerns” but is “not
coextensive with [the First Amendment].” It covers “something less important
than news, … related to real-life occurrences.” But only reprinted yearbooks had
a potential connection to public affairs; the subscription membership “clearly
does not.”

Plaintiffs also brought a derivative UCL unlawfulness claim,
which additionally requires that a plaintiff must have “suffered an injury in
fact and…lost money or property as a result of the unfair competition.” The
alleged loss of IP rights qualified as economic injury/lost money or property.

Intrusion upon seclusion: “PeopleConnect understandably
argues that Plaintiffs could not have a reasonable expectation of privacy
because their names and likenesses were used in yearbooks which (1) were
clearly intended for public distribution and (2) ultimately had no restrictions
on their dissemination.” But an expectation of privacy need not be of “absolute
or complete privacy.” This was a fact question, but fortunately for
PeopleConnect, plaintiffs failed to plead that intrusion took place in a manner
highly offensive to a reasonable person. Plaintiffs alleged that dissemination
to millions was offensive and that at least some of the information was “highly
sensitive, including photographs of Plaintiffs as minors and information about
where they grew up and attended school.” But “it is entirely speculative that
Plaintiffs’ information was actually disclosed to millions,” and the
characterization of the information as highly sensitive was “hyperbolic.”  Dismissed with leave to amend.

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