Nolen v. PeopleConnect Inc.

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ALICIA NOLEN, Plaintiff, v. PEOPLECONNECT, INC., Defendant.

No. 20-cv-09203-EMC

United States District Court, N.D. California

June 30, 2023

ORDER DENYING DEFENDANT'S MOTION TO COMPEL ARBITRATION AND DISMISS DOCKET NO. 180

EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Defendant PeopleConnect moves for an order dismissing Plaintiff's claims.^[1] Plaintiff filed a class action suit against Defendant for (1) violating California's Right of Publicity Statute, California Civil Code § 3344; (2) violating California's Unfair Competition Law (“UCL”), California Business and Professions Code § 17200 (the unlawful prong); and (3) unjust enrichment under California common law. These claims stem from Defendant's non-consensual use of Plaintiff's likeness for the purpose of advertising. Defendant, however contends that Plaintiff did not plead an actionable claim because she did not properly allege that Defendant used her image. Having considered the parties' briefs and accompanying submissions, as well as the oral argument of counsel, the Court hereby DENIES the motion to dismiss.

II. FACTUAL AND PROCEDURAL BACKGROUND

PeopleConnect is a company that collects yearbooks, scans the yearbooks, and extracts information from the yearbooks (such as names, photographs, schools attended, and so forth) to be put into a database. See Docket No. 172 (Second Amended Complaint (“SAC”)) ¶ 162.^[2] It “aggregates the extracted information into digital records associated with specific individuals,” and then the digital records are exploited commercially-to promote and sell PeopleConnect's products-but without the individuals' consent. Id. PeopleConnect sells products through its website (Classmates.com). The products sold on the website are (1) reprinted yearbooks and (2) a subscription membership. Id. ¶¶ 4, 7.

This motion involves the Second Amended Complaint in this action. Plaintiffs filed their First Amended Complaint (“FAC”) after the Court dismissed Plaintiffs' former intrusion upon seclusion claim, UCL (unfair prong) claim, and all claims as they related to the sales of reprinted yearbooks. See Docket Nos. 76, 132 (FAC). Plaintiffs, correctly anticipating that their claims were time-barred, filed the SAC to add two new named Plaintiffs: Ms. Alexandra Overton and Ms. Alicia Nolen. Docket No. 177; SAC. Ms. Overton voluntarily dismissed her claims, leaving only Ms. Nolen as named Plaintiff. Docket No. 183.

III. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed.R.Civ.P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court's decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), a plaintiff's “factual allegations [in the complaint] ‘must . . . suggest that the claim has at least a plausible chance of success.'” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Levitt, 765 F.3d at 1135 (quoting Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 996 (9th Cir. 2014)). “A claim has facial plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

IV. DISCUSSION

To state a misappropriation of likeness claim under the common law, a plaintiff must allege: “(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” Eastwood v. Superior Ct., 149 Cal.App.3d 409, 417, 198 Cal.Rptr. 342, 347 (Ct. App. 1983); see also Maloney v. T3Media, Inc., 853 F.3d 1004, 1008 n.2 (9th Cir. 2017) (same). A § 3344 claim consists of the same elements, but also requires allegations of (5) “knowing use of the plaintiff's name, photograph or likeness for purposes of advertising or solicitation of purchases,” and (6) “[a] ‘direct' connection . . . between the use and the commercial purpose.” Eastwood, 149 Cal.App.3d at 417 (emphasis added); see also Maloney, 853 F.3d at 1008, n.2 (same). Specifically, § 3344 states:

(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.... (e) The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subdivision (a) solely because the material containing such use is commercially sponsored or contains paid advertising. Rather it shall be a question of fact whether or not the use of the person's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subdivision (a).

Cal. Civ. Code § 3344.

Plaintiff alleged that Defendant used her image without consent to solicit users to register for their site and sign up for paid subscriptions. For example, Plaintiff alleged that Defendant non-consensually used her image on their website and that when users searched for her name on their site or clicked on her image, they were shown various commercial advertisements. See SAC ¶¶ 145-161. Plaintiff alleged that this use of her image in Defendant's advertising flow violated her right of publicity. Id. ¶¶ 182-87.

Defendant's motion to dismiss focuses on a narrow issue: whether Plaintiff Nolen adequately alleged that Defendant used her image for the purpose of advertising. See Docket No. 180 (Def.'s Mot. to Compel and Dismiss (“Mot.”)) at 12. Defendant argues that Plaintiff's “theory of liability fails because it does not require that her name or photographs have ever been displayed in what the Second Amended Complaint calls an ‘advertising technique[].'” Docket No. 185 (Reply in Supp. of Defs.' Mot. to Dismiss (“Reply”)) at 2. Simply put, Defendant argues that their use of Plaintiff's image does not constitute a use for the purpose of advertising under § 3344 until her image is visually displayed (e.g., through pixels on a user's computer monitor) in connection with an advertisement following a user's search. See id. at 1 (stating that a publication in advertising must be more than a “mere possibility of a future display in an advertisement”). Although Defendant states otherwise, they are arguing for a de facto requirement of third-party viewership for certain § 3344 claims-essentially, even if users could interact with Plaintiff's images as part of an advertising flow, Plaintiff's claims fail because she never alleges that any user ever actually viewed them in this way, and thus they were not visually used in a commercial advertisement. See Mot. at 11 (“[T]he theory of liability Plaintiffs have pleaded-that PeopleConnect violates Section 3344 by hosting their school yearbooks on Classmates.com, even if the photographs from those yearbooks never are shown to anyone, let alone shown to someone as part of a so-called advertisement-is not viable as a matter of law.”); Reply at 2 (contending that Plaintiff's claims fail “regardless of what anyone saw”).

The Court disagrees: Defendant commercially used Plaintiff's image the moment the image became a publicly accessible part of Defendant's advertising flow. To hold otherwise would impose a visual display requirement that is at odds with the single publication rule of claim accrual and that has no basis in the text or purpose of § 3344. Moreover, even if Plaintiff's image needed to have been visually displayed in Defendant's advertising flow following a user's search in order for it to have been used for a commercial purpose, Plaintiff's claims would still survive since she adequately alleged such a display.^[3]

A. Determining When An Image Is Commercially Used

Defendant argues that Plaintiff is wrong for contending that “she may prevail merely by identifying an ‘online advertising flow' on Classmates.com, even if her name or photographs were never displayed in that flow.” Reply at 7. Defendant is attempting to argue that until users click on Plaintiff's image such that Defendant's advertisements appear, there has been no published advertisement using Plaintiff's image. This argument fails because (1) it is nonsensical to treat date of publication separately from date of first commercial use and (2) the text and purpose of § 3344 precludes any definition of commercial use requiring the visual display and third-party viewing of the commercially used image.

1. Images are Commercially Used Upon Publication

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