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AD-ttorneys Law Blog

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Cloudy with a Chance of AI: Navigating the FTC’s Regulatory Forecast

Data Counsel

Examining the Likely Impact of Washington’s My Health, My Data Act on Class Action Litigation Involving Biometric Data

The Bargaining Table

Practical Impacts of the ‘Cemex’ Decision

Carl Hittinger, Jeffry Liskov Author Legal Intelligencer Article on Antitrust Considerations in Executive Order on AI

As discussed in the 2023 Data Security Incident Response Report, over the past several years a wave of lawsuits was brought alleging violations of customers’ right of publicity based on the sale of customer mailing lists. The complaints argue that this age-old practice of selling customer mailing lists, which derive their value from the compilation of thousands of names, not any one individual’s information, somehow violates each individual’s right of publicity. A look through the common law from which these statutes evolved and existing case law, as well as common sense, makes clear that the sale or rental of mailing lists is not what the statutes were intended to protect.

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The long-standing right of publicity prevents the unauthorized commercial use of an individual’s name or likeness or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion. Though it started in common law, many states have since codified the right and provided statutory damages for any violation. While these statutes vary state to state, in general, they protect the “right to control and to choose whether and how to use [one’s] identity for commercial purposes.” See, e.g. 765 Ill. Comp. Stat. § 1075/10; see also Cal. Civ. Code § 3344(a); Ohio Rev. Code § 2741.02(A); Cal. Civ. Code § 3344(a). They require that the person’s name or likeness not be “held out” on or in products, merchandise or goods; for purposes of advertising or selling; or for soliciting purchases of products, merchandise, goods or services, without such person’s prior consent.

Several state and federal courts have already held that right of publicity statutes were not intended to be applied to the sale of mailing lists. See Smith v. Chase Manhattan Bank, USA, N.A., 293 A.D.2d 598, 600 (N.Y. App. Div. 2002) (holding that the right of publicity law should be narrowly construed and was not intended to address the sale of customer information for marketing products and services). Last year, the U.S. District Court for the Central District of Illinois held that the sale of mailing lists does not alone meet the “commercial purposes” requirement under the Illinois Right of Publicity Act (IRPA). Huston v. Hearst Communications, Inc., Case No. 1:21-cv-01196-MMM-JEH, 2022 WL 385176 (C.D. Ill. Feb. 7, 2022). The court there pointed to the fact that the purchase of mailing lists of subscribers has been a standard practice in the direct mail industry and held that the plaintiff failed to allege that her identity was used in connection with the offer for sale of any product or service to a third party or to advertise any product or service, as is required by the IRPA. Id. Partially based on Huston, The U.S. District Court for the District of Vermont dismissed a complaint alleging violations of California, Illinois and Ohio right of publicity statutes, holding that “mailing lists merely aggregate names and associated information (which Plaintiffs do not contend is private) that are otherwise available for public observation.” Farris v. Orvis Co., Inc., No. 2:22-CV-00007, 2022 WL 10477051, at *6 (D. Vt. Oct. 18, 2022), appeal withdrawn, No. 22-3075, 2023 WL 2355752 (2d Cir. Jan. 10, 2023). Without allegations that the individual names provided the mailing lists with a ”secondary meaning” or “general acceptance and good will” the complaints failed to please a violation of the right of publicity. Id. (citations omitted).

As these lawsuits are a clear attempt to extend the statutes beyond the point of reason, there appears to be a light at the end of this particular tunnel.

Customer Mailing Lists and The (Attempted) Expansion of the Right of Publicity

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