Classmates.com, 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 Classmates.com.” 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 held:

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 yearbooks.

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.