In January, my esteemed colleague Brian Murphy posted about a case that raised the question whether the sale by a publisher of mailing lists with subscribers' names and identities violated those subscribers' rights of publicity under the laws of a number of states (Alabama, California, Hawaii, Indiana, Nevada, Ohio, South Dakota, and Washington) as well as Puerto Rico. In In re Hearst Communications State Right of Publicity Statute Cases, the plaintiffs claimed that the sale of this data constituted use of their names and identities on commercial products. SDNY Judge Ronnie Abrams rejected the claims, holding that the right of publicity statutes only prohibit the use of a person's name or identity to sell a product separate from the name and identity itself.
Last week, SDNY Judge Nelson Roman reached the same conclusion in a similar case, this time involving claims under the laws of Alabama, Indiana, California, Nevada, Ohio, South Dakota, Washington and Puerto Rico. Citing the Hearst decision along with a number of other cases from around the country, the court agreed that the sale of subscriber lists do not violate state right of publicity law when it is the plaintiffs' own identities that are being sold. The decision can be viewed here.
Interestingly, Judge Roman cited another SDNY decision in which the Court reached the same result but for a different reason. In Wallen v. Consumer Reports, No. 21 Civ. 8624 (VB), 2022 WL 17555713 at *4 (S.D.N.Y. Dec. 9, 2022), Judge Briccetti did not agree with defendants that a violative sale must be of a product separate and apart from the plaintiff's own name and identity. Rather, the court dismissed the claims because the uses were not public (i.e., they were private sales to third parties who bought or rented the subscription lists). While this appears to be a departure from the line of cases relied upon by Judge Roman and others, it appears that Judge Briccetti may be saying the same thing in a different way. He notes that the case before him is "distinct from cases in which a member of the general public pays for access to a subscriber list or similar database because, before purchase, they specifically know which individuals’ information is available." It appears that what Judge Briccetti is saying is that the sale of information that includes subscribers' personal information is distinct from the situation where the seller promotes the sale by promising access to information about specific people (e.g., "buy our list and you will obtain personal information relating to [insert name of celebrity or private individual here]").
Finally, readers might want to note Judge Roman's clever characterization of plaintiffs' argument that the language of the various state statutes supports their claim that the defendants' sale of subscription information infringes their privacy rights, thus creating claims under right of publicity protections. He writes that "such invocation of the publicity right statutes for alleged protection of privacy is akin to pointing to the eye of a sizable grey animal and declaring that because the eye appears to be that of a whale, the animal must be a whale--even though all precedents make unequivocally clear that the animal is an elephant."
"Such invocation of the publicity right statutes for alleged protection of privacy is akin to pointing to the eye of a sizable grey animal and declaring that because the eye appears to be that of a whale, the animal must be a whale--even though all precedents make unequivocally clear that the animal is an elephant." Judge Nelson S. Roman, Bohnak, et al. v. Trusted Media Brands.