Cohen v. Facebook, Inc., No. 10-CV-05282, 2011 BL 277188 (N.D. Cal. Oct. 27, 2011) The U.S. District Court for the Northern District of California granted defendant Facebook, Inc.'s motion to dismiss the claims brought against it, without leave to amend, in a case where plaintiffs alleged that Facebook violated their rights of publicity by displaying their photos in a Facebook feature. The court held that the plaintiffs failed to state a claim under Fed. R. Civ. P. 12(b)(6). The court found that even with the revised First Amended Complaint ("FAC"), the plaintiffs failed to allege that they suffered any distress, hurt feelings, or other emotional harm.
Friend Finder FunctionFacebook uses a feature called "Friend Finder" to encourage users to find their friends on facebook.com, and discloses to users which of their friends are already using the feature by displaying users' friends' profile photos. The plaintiffs alleged that this type of use misappropriated their names and likenesses without compensation or consent, in violation of their rights of publicity, despite the fact that the plaintiffs are non-celebrity private individuals. Facebook initially moved to dismiss the claims based on two theories: that facebook.com users consent to the use under Facebook's Terms of Service, and also that the plaintiffs failed to plead any harm. After the plaintiffs were allowed to submit a FAC, Facebook only pursued the second defense—lack of identifiable injury.
Court Grants Facebook's Motion to Dismiss"A complaint must include sufficient facts to state a claim to relief that is plausible on its face." Cohen at 2 (quoting Fed. R. Civ. P. 8(a)(2)). The absence of such facts can result in dismissal. In the FAC, the plaintiffs chose not to allege emotional distress damages. Instead, the plaintiffs argued that their names and likenesses had economic value for Facebook, as evidenced by Facebook's desire to use the names and images. The plaintiffs argued that, at a minimum, use of the names and images to recruit additional facebook.com users increased Facebook's user base, which in turn generated more appeal for Facebook to advertisers. The court, however, found that the plaintiffs failed to plead sufficient facts to support their claim. The plaintiffs did not identify any actual harm, and the court clarified that the plaintiffs could not rely on Cal. Civ. Code § 344, which provides $750 in statutory damages for individuals who are unable to quantify the amount of damage suffered, as the means of establishing the harm. The court also distinguished the instant case from the cases relied on by the plaintiffs, which involved right of publicity claims by individuals who used their names and images for commercial purposes, such as modeling and public performance, even though the plaintiffs in those cases were not recognized as celebrities. Finally, the court explained that Facebook had not "publicized the plaintiffs' names or likenesses to any audience or in any context where they did not already appear - rather, the names and likenesses were merely displayed on the pages of other users who were already plaintiffs' Facebook 'friends' and who would regularly see, or at least have access to, those names and likenesses in the ordinary course of using their Facebook accounts"—a fact which undermined the plaintiffs' claims of harm. Id. at 5. Accordingly, the court granted Facebook's motion to dismiss without leave to amend. DisclaimerThis document and any discussions set forth herein are for informational purposes only, and should not be construed as legal advice, which has to be addressed to particular facts and circumstances involved in any given situation. Review or use of the document and any discussions does not create an attorney-client relationship with the author or publisher. To the extent that this document may contain suggested provisions, they will require modification to suit a particular transaction, jurisdiction or situation. Please consult with an attorney with the appropriate level of experience if you have any questions. Any tax information contained in the document or discussions is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code. Any opinions expressed are those of the author. The Bureau of National Affairs, Inc. and its affiliated entities do not take responsibility for the content in this document or discussions and do not make any representation or warranty as to their completeness or accuracy.©2014 The Bureau of National Affairs, Inc. All rights reserved. Bloomberg Law Reports ® is a registered trademark and service mark of The Bureau of National Affairs, Inc.
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