# Kolebuck-Utz v. Whitepages Inc

> District Court, W.D. Washington · April 22, 2021

URL: https://www.frixlaw.com/law-library/cases/10703556

## Case

- **Court:** District Court, W.D. Washington
- **Decided:** April 22, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

THE HONORABLE JOHN C. COUGHENOUR
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UNITED STATES DISTRICT COURT
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WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9 ANGELA KOLEBUCK-UTZ, individually and CASE NO. C21-0053-JCC
on behalf of those similarly situated,
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ORDER
11 Plaintiff,
v.
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WHITEPAGES INC.,
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Defendant.
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This matter comes before the Court on Defendant Whitepages Inc.’s motion to dismiss
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(Dkt. No. 12). Having thoroughly considered the parties’ briefing and the relevant record, the
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Court hereby DENIES the motion for the reasons explained herein.
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I. BACKGROUND
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Defendant owns and operates a website that sells “background reports” and monthly
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subscription services to access such reports. (Dkt. No. 1 at 1, 4.) To entice users to purchase
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these products, Defendant allows a user to initially search for a person using that person’s name,
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without charge; the user is then provided a list of possible persons, including identifying
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information, and given the option of receiving a “free preview” of Defendant’s “report” on the
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searched individual. (Id. at 1, 2.) Plaintiff alleges Defendant used her name and likeness in its
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free previews and advertisements to “entice users to purchase Whitepages’ services.” (Id. at 2,
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1 4.) After the user viewed the free preview and clicked on the buttons “View Full Report,”
2 “Unlock Full Report,” or “Sign Up,” Defendant presented the user with the option to purchase a
3 monthly subscription service. (Id. at 4.) Plaintiff argues that Defendant’s use of her persona
4 violated Ohio’s right of publicity law, Ohio Revised Code § 2741.01 et. seq., because Defendant
5 did not obtain written consent to use her persona in its advertisements. (Id. at 8.)
6 In this putative class action, Plaintiff seeks compensatory, statutory, and punitive
7 damages and injunctive relief, among other relief, on behalf of herself and similarly situated
8 individuals, for the alleged violation. (Id. at 9.)
9 Defendant moves to dismiss Plaintiff’s complaint pursuant to Federal Rule of Civil
10 Procedure 12(b)(6), arguing its use of Plaintiff’s name (a) did not violate Ohio Revised Code
11 § 2741.01 et. seq., (b) was protected as noncommercial “directory information” under the First
12 Amendment of the U.S. Constitution and Article 1, § 11 of the Ohio Constitution, and (c) was
13 immunized by the Communications Decency Act (“CDA”). (Dkt. No. 12 at 2–10.)
14 II. LEGAL STANDARD
15 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
16 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
17 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
18 facially plausible “when the plaintiff pleads factual content that allows the court to draw the
19 reasonable inference that the defendant is liable for the misconduct alleged.” Id. “A pleading that
20 offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
21 not do.’” Id. (quoting Twombly, 550 U.S. at 555).
22 III. DISCUSSION
23 Ohio’s right of publicity law provides that “a person shall not use any aspect of an
24 individual’s persona for a commercial purpose” unless that person has obtained written consent
25 from the individual. Ohio Rev. Code §§ 2741.01, 2741.02.
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1 A. Claim Based Upon a Violation of Ohio’s Right of Publicity Law
2 Plaintiff alleges Defendant used her “persona” for a commercial purpose in violation of
3 Ohio Revised Code § 2741.02. (Dkt. No. 1 at 8.) Defendant argues it used only her name, rather
4 than her persona, and, regardless, even if it did use her persona, Plaintiff’s persona does not have
5 “commercial value” and, therefore, cannot constitute a violation of the statute. (See Dkt. No. 15
6 at 3.) The statute defines “persona” as “an individual’s name, voice, signature, photograph,
7 image, likeness, or distinctive appearance, if any of these aspects have commercial value.” Ohio
8 Rev. Code § 2741.01(A). Here, Plaintiff’s complaint clearly alleges that Defendant displayed
9 Plaintiff’s name and identifying information on its website, in what has been described as a free
10 preview, as an enticement to purchase Defendant’s subscription service. (See Dkt. Nos. 1 at 2,
11 22; 12 at 1.) Although use of identifying characteristics may not be required to represent a
12 violation under the statute, Defendant’s alleged use of Plaintiff’s uniquely identifiable
13 characteristics, (see Dkt. No. 1 at 2), further supports Plaintiff’s allegation that it really was
14 Plaintiff’s name and persona that Defendant used, rather than the name of a similarly named
15 person. (See Dkt. No. 13 at 5 (citing Lukis v. Whitepages, 454 F. Supp. 3d 746, 761 (N. D. Ill.
16 2020).)
17 1. Commercial Value of Plaintiff’s Name
18 Defendant argues that Plaintiff’s name, as a non-public person, could not have
19 commercial value as a matter of law and, even if it could, Plaintiff did not plead adequate facts to
20 establish its commercial value here. (Dkt. No. 12 at 4–6). The Court disagrees. To assert a right
21 of publicity claim, Plaintiff must only plead that there is some value in associating a good or
22 service with her identity. See Harvey v. Systems Effect, LLC, 154 N.E. 3d. 293, 306 (Ohio App.
23 2020). In Roe v. Amazon, for example, the defendant used the plaintiffs’ image without
24 permission on the cover of a book the defendant authored and sold. See 170 F. Supp. 3d 1028,
25 1030 (S.D. Ohio 2016). The plaintiffs were not celebrities and their image did not have “widely
26 marketable commercial value.” Id. Nevertheless, the court, held that the plaintiffs’ image had
1 commercial value because the defendant deliberately used it for commercial gain, thereby
2 infringing on the plaintiffs’ rights. Id. at 1033. Unlike Harvey, where the court found that use of
3 the plaintiff’s name was incidental and the defendant did not obtain any commercial value from
4 it, see 154 N.E. 3d. at 306, Plaintiff alleges that Defendant used her name to entice users to
5 purchase Defendant’s product. (Dkt. No. 1 at 4.) This is sufficient to establish commercial value
6 as a matter of law. Moreover, Plaintiff provides sufficient facts to plausibly allege a violation of
7 Ohio’s right of publicity law, based on the allegations of commercial use. (See id. at 4–5
8 (alleging that Plaintiff’s persona was used to entice users to sign up for Defendant’s monthly
9 subscription service).) Therefore, Plaintiff states a claim for relief based on alleged violations of
10 Ohio’s right of publicity law.
11 B. Freedom of Speech Argument
12 Defendant next argues that Ohio’s right of publicity law’s limitation, if any, on its use of
13 Plaintiff’s persona represents a First Amendment1 violation (See Dkt. Nos. 12 at 6–10, 15 at 4).
14 In order to assess Defendant’s argument, the Court must first determine whether Defendant’s
15 alleged use of Plaintiff’s persona was commercial or noncommercial speech. While commercial
16 speech is entitled to some First Amendment protections, noncommercial speech is entitled to
17 greater protections. Bolger v. Youngs Drugs Products Corp., 463 U.S. 60, 65 (1983). Laws
18 restricting commercial speech are analyzed under intermediate scrutiny, while laws restricting
19 noncommercial speech are analyzed under strict scrutiny. See Dex Media W., Inc. v. City of
20 Seattle, 696 F.3d 952, 954, 962 (9th Cir. 2012).
21 1. Commercial Speech
22 Whether something constitutes commercial speech largely depends on whether the
23 content “does no more than propose a commercial transaction.” Virginia State Bd. Of Pharmacy

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1 The Court refers to the First Amendment of the U.S. Constitution and Article 1, §11 of the Ohio
25 Constitution, collectively, as the “First Amendment” in light of the court’s holding in Cleveland v. Trzebuckowski,
709 N.E.2d 1148, 1152 (Ohio 1999) (citing State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals
26 (1992), 588 N.E.2d 116, 123 (stating “[t]he First Amendment is the proper basis for interpretation of Section 11,
Article I, Ohio Constitution”)).
1 v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976). Relevant factors include
2 “(i) [] advertising format, (ii) [] reference to a specific product, and (iii) the underlying economic
3 motive of the speaker.” Dex Media, 696 F.3d at 958 (quoting Assoc. of Nat’l. Advertisers, Inc. v.
4 Lungren, 44 F.3d 726, 728 (9th Cir.1994)) (holding that Defendant Yellowpages’ content was
5 noncommercial speech where (1) the advertisements were restricted to only cover a certain
6 percentage of each page and (2) did not reference only one specific product and were created by
7 third parties).
8 Here, Plaintiff alleges that: (i) Defendant’s advertisements using Plaintiff’s persona were
9 found on the same web page as Defendant’s enticement for its subscription services; (ii) the
10 enticements were described as the “full report” of Plaintiff’s identity, available through
11 Defendant’s monthly subscription service; and (iii) Defendant’s motive was singularly “to entice
12 users to purchase Defendant’s services.” (See Dkt. No. 1 at 2, 4.) These allegations are sufficient
13 to establish that Defendant’s advertisements using Plaintiff’s persona were, in fact, commercial
14 speech.
15 2. Intermediate Scrutiny
16 In applying intermediate scrutiny to a law limiting commercial speech, the Court
17 considers whether: (1) the speech “concern[s] lawful activities and [is] not [] misleading;” (2) the
18 government has a “substantial” interest in restricting the speech; (3) the regulation “directly
19 advances the governmental interest” involved; and (4) the regulation is not “more excessive than
20 is necessary to serve that interest.” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of
21 New York, 447 U.S. 557, 566 (1980). To support its argument that Ohio’s right of publicity law,
22 as applied by Plaintiff to Defendant’s advertisements of its subscription services using Plaintiff’s
23 persona, violates First Amendment protections, Defendant relies on a case concerning
24 noncommercial speech. (See Dkt. No. 12 at 9 (citing Sarver v. Chartier, 813 F.3d 891, 905 (9th
25 Cir. 2016).) This is not helpful. In support of its motion, Defendant must cite to persuasive or
26 controlling cases addressing the application of the intermediate scrutiny factors required for
1 similar commercial speech as that alleged by Plaintiff. Defendant fails to do so. (See generally
2 Dkt. Nos. 12, 15.) Therefore, Defendant’s briefing provides the Court no basis to dismiss
3 Plaintiff’s claim on First Amendment grounds.
4 C. Communications Decency Act
5 Finally, Defendant argues dismissal is warranted based on the protections afforded by the
6 CDA, 47 U.S.C. §§ 230(c)(1), (e)(3). (Dkt. No. 12 at 9.) According to Defendant, it does not
7 generate content and, therefore, its use of Plaintiff’s persona is protected by the CDA. (Id.) But
8 Plaintiff’s complaint alleges Defendant does, in fact, generate content. (See Dkt. No. 1 at 5.) At
9 this stage the Court must accept the allegations in Plaintiff’s complaint as true. See Twombly,
10 550 U.S. at 555. Defendant’s argument does not provide a basis for dismissal of Plaintiff’s
11 complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
12 IV. CONCLUSION
13 For the foregoing reasons, the Court DENIES Defendant’s motion to dismiss (Dkt. No.
14 12.)
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16 DATED this 22nd day of April 2021.
A
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John C. Coughenour
20 UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10703556. Public record. Not legal advice.