In re Hearst Communications State Right of Publicity Statute Cases

Background

Twenty named plaintiffs brought a proposed class action against Hearst Communications, Inc. The plaintiffs subscribe to at least one Hearst magazine and sought to represent classes of people whose names appeared in Hearst’s alleged “Data Brokerage Products.” They alleged that Hearst stored subscribers’ names, home addresses, and magazine-subscription preferences in a database, then sold, licensed, rented, exchanged, or otherwise disclosed that information to third parties without the subscribers’ consent.

The complaint asserted nine causes of action under right-of-publicity statutes in Alabama, California, Hawaii, Indiana, Nevada, Ohio, South Dakota, Washington, and Puerto Rico. The plaintiffs sought statutory damages, injunctive relief, and punitive damages where available. They described the statutes as “misappropriation” statutes and argued that their names were used “on or in” the data products.

Motion and Legal Standard

Hearst moved to dismiss the complaint in its entirety. On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court accepts well-pleaded factual allegations as true and asks whether they plausibly show an entitlement to relief. The court need not accept conclusory statements or mere legal labels.

The parties agreed that the nine statutes were substantially similar and could generally be analyzed together. The court separately addressed Puerto Rico’s statute because it lacked the “on or in products” language at issue, and the plaintiffs did not meaningfully defend their Puerto Rico claim.

Court’s Analysis

The court explained that right-of-publicity statutes protect the property value associated with a person’s name, likeness, or other identity information. In the court’s view, the statutes generally address commercial use of an identity to promote, advertise, endorse, brand, or merchandise a separate product or service.

The court rejected the plaintiffs’ argument that the subscriber lists themselves were separate products and that the subscribers’ names were used on or in those products. Even assuming the data products qualified as “products” under the statutes, the court reasoned that the products consisted of the subscribers’ personal information. The complaint did not allege that the names were made public or that third-party recipients knew which names were included before obtaining the lists. The court therefore found it implausible that any individual name promoted the data products or influenced the transactions between Hearst and the recipients.

The court distinguished cases involving names or likenesses placed on tangible merchandise, used in public advertising, or displayed on a public online marketplace. Those examples involved an identity being used to promote or sell a separate product, or being publicly presented in a way that could influence a purchase. The court also declined to adopt an interpretation that could reach routine sales of telephone directories, professional directories, and similar personal-information products.

The court held that the plaintiffs’ attempt to separate a supposed right against “misappropriation” from the right of publicity was not supported by the statutory text, legislative history, or cited case law. It concluded that the alleged sale of Hearst’s subscriber lists did not implicate any of the nine right-of-publicity statutes.

Disposition

The court granted Hearst’s motion to dismiss and dismissed all of the plaintiffs’ claims. The court did not reach Hearst’s alternative argument that applying the statutes to the alleged conduct would violate the First Amendment. The clerk was directed to terminate the motion and close the case.