Many businesses compile databases of information about their customers or website users, and these can be very valuable to other businesses seeking to market to the same consumer base. But does sale of such information violate the right of publicity of the persons listed? A recent decision, Huston v. Hearst Communications, Inc., (7th Cir. 2022), addressed this issue.
Elizabeth Huston is a subscriber to Good Housekeeping, published by Hearst, and alleged that Hearst violated here right of publicity under Illinois law by offering for sale and selling mailing lists that identified its magazine subscribers, by name, address, “gender, age, ethnicity, income, political party, religion, and charitable donation history,” among other personal attributes.ouHouse
The Seventh Circuit rejected her claim because under Illinois law, to sustain such a claim, the person’s identity has to be used “for commercial purposes.” In that case, her identity and other information were not used to promote a product (the mailing list), but consisted of the product itself. It distinguished prior decisions where a sampling of the personal information was used to promote access to a larger database, and the right of publicity might well be infringed. “It is not enough for Huston’s name and other information to appear on or within a product. Her identity must help sell something—whether it is that product or a separate product or service.”
In a later decision, Hoffower v. Seamless Contacts, Inc. (N.D.Ill. 2022), a website came out on the wrong side of this distinction. The plaintiff alleged that the defendant operates a websites that advertises that in return for a paid subscription, a subscriber will receive access to profiles of individuals with personal information. The website offers potential subscribers a free trial that allows them to search for, view, and download a limited number of profiles, until they have expended all their “credits.” She further alleged that in response to a search for her name, Seamless displayed search results showing her personal information, a counter showing how many credits remained in the free trial, and an “upgrade” button that promoted the trial user to purchase a subscription to obtain more credits.
The district court held that this was sufficient to state a claim for violation of her right of publicity, because access to her profile as a free was used as a promotion to encourage potential customers to purchase a subscription to the entire database. Her profile was thus being used separately from the “product,” the entire database.
Thus while mere sale of a database that includes personal information will likely not violate a right of publicity, the use of portions or samples of a database to promote sales and subscriptions to the whole will do so.
Elizabeth Huston is a subscriber to Good Housekeeping, published by Hearst, and alleged that Hearst violated here right of publicity under Illinois law by offering for sale and selling mailing lists that identified its magazine subscribers, by name, address, “gender, age, ethnicity, income, political party, religion, and charitable donation history,” among other personal attributes.ouHouse
The Seventh Circuit rejected her claim because under Illinois law, to sustain such a claim, the person’s identity has to be used “for commercial purposes.” In that case, her identity and other information were not used to promote a product (the mailing list), but consisted of the product itself. It distinguished prior decisions where a sampling of the personal information was used to promote access to a larger database, and the right of publicity might well be infringed. “It is not enough for Huston’s name and other information to appear on or within a product. Her identity must help sell something—whether it is that product or a separate product or service.”
In a later decision, Hoffower v. Seamless Contacts, Inc. (N.D.Ill. 2022), a website came out on the wrong side of this distinction. The plaintiff alleged that the defendant operates a websites that advertises that in return for a paid subscription, a subscriber will receive access to profiles of individuals with personal information. The website offers potential subscribers a free trial that allows them to search for, view, and download a limited number of profiles, until they have expended all their “credits.” She further alleged that in response to a search for her name, Seamless displayed search results showing her personal information, a counter showing how many credits remained in the free trial, and an “upgrade” button that promoted the trial user to purchase a subscription to obtain more credits.
The district court held that this was sufficient to state a claim for violation of her right of publicity, because access to her profile as a free was used as a promotion to encourage potential customers to purchase a subscription to the entire database. Her profile was thus being used separately from the “product,” the entire database.
Thus while mere sale of a database that includes personal information will likely not violate a right of publicity, the use of portions or samples of a database to promote sales and subscriptions to the whole will do so.