Case 3:21-cv-02304-LB Document 29 Filed 06/15/21 Page 1 of 8
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`San Francisco Division
`
`O’SHEA JACKSON,
`
`Plaintiff,
`
`v.
`
`ROBINHOOD MARKETS, INC. et al.,
`
`Defendants.
`
`Case No. 21-cv-02304-LB
`
`ORDER GRANTING MOTION TO
`DISMISS AND DENYING MOTION TO
`STRIKE AS MOOT
`
`Re: ECF Nos. 11 & 12
`
`
`
`INTRODUCTION
`
`The plaintiff O’Shea Jackson, known professionally as Ice Cube, sued Robinhood, a financial-
`
`services company, after Robinhood used his image and a paraphrase of a line from his song “Check
`
`Yo Self” to illustrate an online article that it published about a market correction for tech stocks. The
`
`line is “Check yo self before you wreck yo self,” which Robinhood paraphrased as “Correct yourself
`
`before you wreck yourself.” “Check yo self” is Ice Cube’s “catchphrase.” He claims that by using his
`
`image and catchphrase, Robinhood (1) created the false and deceptive commercial impression that
`
`Ice Cube is associated with or endorses Robinhood’s services, in violation of the Lanham Act, 15
`
`U.S.C. § 1125(a)(1)(A), (2) misappropriated his likeness without his consent, in violation of Cal. Civ.
`
`Code § 3344(a) and California common law, and (3) engaged in unfair competition, in violation of
`
`California’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code § 17200. The court dismisses
`
`ORDER – No. 21-cv-02304-LB
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-02304-LB Document 29 Filed 06/15/21 Page 2 of 8
`
`
`
`the complaint for lack of standing because the plaintiff did not plausibly plead that Robinhood’s use
`
`of his identity suggested his endorsement of Robinhood’s products.
`
`
`
`STATEMENT
`
`Ice Cube is a well-known rapper, actor, entrepreneur, and social activist. His 1992 album The
`
`Predator had a certified-platinum single “Check Yo Self,” which featured the line “check yo self
`
`before you wreck yo self.” The phrase “Check Yo Self” is his “signature catchphrase.”1
`
`Robinhood is a financial-services company that allows commission-free trades of stocks and
`
`exchange-traded funds on a mobile app. It also operates a website called “Robinhood Snacks” that
`
`publishes short newsletters on financial issues. On March 8, 2021, its newsletter (titled “Why are
`
`tech stocks falling?”) had three articles. The first was titled “Tech stocks move toward ‘correction’
`
`territory: we break it down.” The article discussed stock market highs (led by tech stocks), the
`
`market correction, and possible explanations: an overvalued tech sector, rising interest rates,
`
`inflation, a concern that the Fed will raise interest rates, the vaccine rollout, and economic recovery.
`
`It concluded that corrections are normal.2
`
`The newsletter has a breezy, colloquial tone. For example, the article on the market correction
`
`begins with this: “Do you remember?. . . the 21st of December (cue: Earth, Wind, and Fire jam).”
`
`It ends with the observation that “[m]arkets were frothy at their peak — a correction is kind of like
`
`a barista skimming off foam.” It has varied content that includes the three articles (the other two
`
`are “Who’s up” and “. . . and who’s down”), links to other content (with categories titled Check,
`
`Learn, Sweat, Act, Do, Achieve), a description of the Snacks Daily Podcast, the Snack Fact of the
`
`Day, and a description of the week ahead.3
`
`
`1 Compl. – ECF No. 1 at 5 (¶¶ 17–21). The court considers the line from the song under the incorporation-
`by-reference doctrine. Knievel v. ESPN, 393 F.3d 1068, 1076–77 (9th Cir. 2005). Citations refer to
`material in the Electronic Case File (ECF); pinpoint citations are to the ECF-generated page numbers at
`the top of documents.
`2 Robinhood Snacks Newsletter, Ex. A to Compl. – ECF No. 1-1 at 1–3.
`3 Id. at 1–8.
`
`ORDER – No. 21-cv-02304-LB
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-02304-LB Document 29 Filed 06/15/21 Page 3 of 8
`
`
`
`At the top of the newsletter — right after the title “Why are tech stocks falling?” and right
`
`before the market-correction article — was this image from Ice Cube’s movie Are We Done Yet?4
`
`Correct yourself, before you wreck yourself
`
`
`
`The newsletter (characterized in the complaint as an advertisement) “creates the false impression
`
`that Ice Cube supports and endorses Robinhood’s products and services.”5 This “is supported by the
`
`fact that “Robinhood has a demonstrable pattern and practice of using established celebrities, such as
`
`Nas and Jay-Z, to endorse its products and services.”6 Ice Cube did not authorize the use of his image
`
`or catchphrase and sent a cease-and-desist letter to Robinhood. Robinhood continues to use the
`
`likeness without permission, and the plaintiff has suffered financial and reputational harm.7
`
`
`4 DVD for Are We Done Yet?, Ex. A to Req. Judicial Notice – ECF No. 13 at 1–2. The court judicially
`notices facts that the parties do not dispute, such as the movie. Fed. R. Evid. 201(b); United States v.
`Mariscal, 285 F.3d 1127, 1131 (9th Cir. 2002); Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th
`Cir. 2001).
`5 Compl. – ECF No. 1 at 6 (¶ 27).
`6 Id. at 6 (¶ 28).
`7 Id. at 6–7 (¶¶ 31–32).
`
`ORDER – No. 21-cv-02304-LB
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-02304-LB Document 29 Filed 06/15/21 Page 4 of 8
`
`
`
`The plaintiff claims that by using his image and catchphrase, Robinhood (1) created the false
`
`and deceptive commercial impression that Ice Cube is associated with or endorses Robinhood’s
`
`services, in violation of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), (2) misappropriated his
`
`likeness without his consent, in violation of Cal. Civ. Code § 3344(a) and California common law,
`
`and (3) engaged in unfair competition, in violation of the UCL.8
`
`Robinhood moved to dismiss the complaint for lack of standing under Federal Rule of Civil
`
`Procedure 12(b)(1). It moved to dismiss all claims under Rule 12(b)(6) for the following reasons:
`
`(1) the article was a noncommercial report of news, and the claims protect only commercial
`
`interests; (2) the First Amendment bars the claims, again because the article was newsworthy; (3)
`
`the Lanham Act claim fails because Robinhood’s use of the likeness and catchphrase was creative;
`
`(4) federal copyright law preempts the state claims; (5) the Lanham Act claim fails because only
`
`the copyright owners of the film have rights in the images; (6) it is immune under section
`
`230(c)(1) of the Communications Decency Act, 47 U.S.C. § 230(c)(1), because it is an interactive-
`
`computer-service provider that did not create the image; and (7) the phrase “check yo self” is not a
`
`distinctive part of Ice Cube’s identity and thus is not actionable under the Lanham Act. Robinhood
`
`also moved to strike the state-law claims under California’s Anti-SLAPP statute, Cal. Civ. Proc. §
`
`425.16, on the ground that the content in the newsletter is protected free speech on a matter of
`
`public interest.9 The court held a hearing on the motions on June 10, 2021.
`
`The court has federal-question subject-matter jurisdiction over the Lanham Act claim under 28
`
`U.S.C. §§ 1331 and 1338 and supplemental jurisdiction over state law claims under 28 U.S.C. §
`
`1367(a). All parties consented to magistrate-judge jurisdiction under 28 U.S.C. § 636.10
`
`
`
`
`
`8 Id. at 7–11 (¶¶ 33–61).
`9 Mot. to Dismiss – ECF No. 12; Mot. to Strike – ECF No. 11.
`10 Consents – ECF Nos. 8 & 15.
`
`ORDER – No. 21-cv-02304-LB
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-02304-LB Document 29 Filed 06/15/21 Page 5 of 8
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`STANDARD OF REVIEW
`
`A complaint must contain a short and plain statement of the ground for the court’s jurisdiction.
`
`Fed. R. Civ. P. 8(a)(1). The plaintiff has the burden of establishing jurisdiction. Kokkonen v.
`
`Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Farmers Ins. Exch. v. Portage La
`
`Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990).
`
`A defendant’s Rule 12(b)(1) jurisdictional attack can be facial or factual. White v. Lee, 227 F.3d
`
`1214, 1242 (9th Cir. 2000). “A ‘facial’ attack asserts that a complaint’s allegations are themselves
`
`insufficient to invoke jurisdiction, while a ‘factual’ attack asserts that the complaint’s allegations,
`
`though adequate on their face to invoke jurisdiction, are untrue.” Courthouse News Serv. v. Planet,
`
`750 F.3d 776, 780 n.3 (9th Cir. 2014). This is a facial attack. The court thus “accept[s] all allegations
`
`of fact in the complaint as true and construe[s] them in the light most favorable to the plaintiff[].”
`
`Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citation omitted).
`
`Robinhood contends that the plaintiff lacks standing. Standing pertains to the court’s subject-
`
`matter jurisdiction and thus is properly raised in a Rule 12(b)(1) motion to dismiss. Chandler v.
`
`State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121–22 (9th Cir. 2010).
`
`Dismissal of a complaint without leave to amend should be granted only if the jurisdictional
`
`defect cannot be cured by amendment. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,
`
`1052 (9th Cir. 2003).
`
`ANALYSIS
`
`The court dismisses the complaint for lack of standing because the plaintiff did not plausibly
`
`plead that Robinhood’s use of his identity suggested his endorsement of Robinhood’s products.
`
`“The ‘irreducible constitutional minimum’ of standing consists of three elements.” Spokeo, Inc.
`
`v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
`
`(1992)). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the
`
`challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial
`
`decision.” Id. “The plaintiff, as the party invoking federal jurisdiction, bears the burden of
`
`establishing these elements.” Id. (citing FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)).
`
`“Where, as here, a case is at the pleading stage, the plaintiff must clearly allege facts demonstrating
`
`ORDER – No. 21-cv-02304-LB
`
`5
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-02304-LB Document 29 Filed 06/15/21 Page 6 of 8
`
`
`
`each element.” Id. (cleaned up). “[S]tanding in federal court is a question of federal law, not state
`
`law.” Hollingsworth v. Perry, 570 U.S. 693, 715 (2013).
`
`Robinhood contends that the plaintiff has not established injury in fact.11 “To establish injury
`
`in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’
`
`that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”
`
`Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be ‘particularized,’
`
`it ‘must affect the plaintiff in a personal and individual way.’” Id. (quoting Lujan, 504 U.S. at 560
`
`n.1). For an injury to be concrete, it “must be ‘de facto’; that is, it must actually exist. . . . [and be]
`
`‘real,’ and not ‘abstract.’” Id. (citing dictionaries). “‘Concrete’ is not . . . necessarily synonymous
`
`with ‘tangible.’ Although tangible injuries are perhaps easier to recognize, . . . intangible injuries
`
`can nevertheless be concrete.” Id. at 1549 (cleaned up).
`
`Citing Waits v. Frito-Lay and other cases, the plaintiff contends that the use of his distinctive
`
`identity implies his endorsement of Robinhood’s product, which is injury in fact.12 Waits v. Frito-
`
`Lay, Inc., 978 F.2d 1093, 1110 (9th Cir. 1992) (“a celebrity whose endorsement of a product is
`
`implied through the imitation of a distinctive attribute of the celebrity’s identity [here, a singer’s
`
`distinctive voice in a Doritos radio commercial], has standing to sue for false endorsement under
`
`section 43(a) of the Lanham Act”). Robinhood counters that the plaintiff has not plausibly pleaded
`
`his celebrity status, did not plead that Robinhood’s conduct misled consumers into thinking that
`
`Ice Cube endorsed its product, and did not plead that he was deprived of compensation.13 The
`
`plaintiff plausibly alleged his celebrity status and economic injury. But he did not plausibly allege
`
`that the use of his identity was endorsement, which means that he does not have standing.
`
`First, Robinhood contends (citing Spokeo) that the plaintiff did not plausibly allege his celebrity
`
`status because he relies on old pursuits (music in the 1980s and movies in the 1990s) or those that
`
`are not famous (the three-on-three basketball tournament). It concludes — without saying more —
`
`
`11 Mot. – ECF No. 12 at 11–14.
`12 Opp’n – ECF No. 22 at 12–13 (collecting cases); Compl. – ECF No. 1 at 8 (¶¶ 39–41).
`13 Mot. – ECF No. 12 at 11–14; Reply – ECF No. 25 at 6–9.
`
`ORDER – No. 21-cv-02304-LB
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-02304-LB Document 29 Filed 06/15/21 Page 7 of 8
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`that the plaintiff has not alleged sufficient facts to establish an economic interest in his celebrity
`
`status.14 But why would Robinhood use the image and a paraphrase of the catchphrase if it did not
`
`capitalize on Ice Cube’s celebrity status? Many cases establish that misappropriation of a likeness to
`
`suggest endorsement of a product establishes Article III standing. See, e.g., Fraley v. Facebook,
`
`Inc., 830 F. Supp. 2d 785, 791–92, 797–99 (N.D. Cal. 2011) (Facebook marketed products by
`
`suggesting that Facebook users who “liked” a product were endorsing it). This is particularly true
`
`for celebrities, who have a commercial interest in their identities that third parties cannot exploit
`
`without authorization. See, e.g., Waits, 978 F.2d at 1110; White v. Samsung Elec. Am., Inc., 971
`
`F.2d 1395, 1398–99 (9th Cir. 1992) (the depiction of a robot Vanna White in a Samsung ad for its
`
`VCRs); Hush Hush Sound, Inc. v. H & M Hennes & Mauritz LP, No. 2:17-CV-07668-RGK-SS,
`
`2018 WL 4962086, at *1, 6 (C.D. Cal. Jan. 26, 2018) (clothing retailer’s use of a musical group’s
`
`name to sell clothing established injury in fact).
`
`Also, the plaintiff alleged his celebrity status, and his commercialization of it, robustly.15 That
`
`allows his recovery if he otherwise pleads viable claims for the unauthorized use of his identity.
`
`Clark v. Am. Online Inc., No. CV-98-5650 CAS (CWX), 2000 WL 33535712, at *1, 8 (C.D. Cal.
`
`Nov. 30, 2000) (AOL’s use of the celebrity Dick Clark’s mark in its ads allowed his recovery for
`
`the fair market value of the right to use his name).
`
`Second, the plaintiff predicates Robinhood’s liability for all claims on the ground that
`
`Robinhood’s use of his identity suggested his endorsement of Robinhood’s products.16 Robinhood
`
`used Ice Cube’s picture and paraphrase of a line from his song to illustrate an article about market
`
`corrections. That illustration does not suggest that the plaintiff endorsed Robinhood (even if
`
`Robinhood uses celebrity endorsements (including Nas and Jay-Z) to promote its actual products,
`
`as the plaintiff alleges).17 The plaintiff characterizes the newsletter as an advertisement, not a
`
`
`14 Reply – ECF No. 25 at 6–7.
`15 See, e.g., Compl. – ECF No. 1 at 3–4 (¶¶ 5, 7), 5–6 (¶¶17–25), 5–8 (¶¶ 24–40). Even if Ice Cube
`were not a celebrity, which he is, he plausibly pleaded that he is.
`16 Opp’n – ECF No. 22 at 12; see, e.g., Compl. – ECF No. 1 at 3 (¶ 6).
`17 Opp’n – ECF No. 22 at 10–11; Compl. – ECF No. 1 at 6 (¶ 28).
`
`ORDER – No. 21-cv-02304-LB
`
`7
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 3:21-cv-02304-LB Document 29 Filed 06/15/21 Page 8 of 8
`
`
`
`newsletter. But he attaches the newsletter, which is demonstrably not an advertisement.18 No case
`
`establishes Article III standing under similar circumstances. To the contrary, the cases (cited
`
`above) all involve explicit endorsements. Similarly, and as Robinhood contends, the plaintiff does
`
`not have statutory standing under the Lanham Act because he did not allege how Robinhood’s use
`
`of his identity created the misapprehension that the plaintiff sponsored, endorsed, or is affiliated
`
`with Robinhood. Chaquico v. Friedberg, 274 F. Supp. 3d 942, 952 (N.D. Cal. 2017).19
`
`
`
`CONCLUSION
`
`The court dismisses the complaint for lack of standing and denies the motion to strike as moot.
`
`The plaintiff must file any amended complaint within 21 days and attach a blackline of the changes.
`
`This disposes of ECF Nos. 11 and 12.
`
`IT IS SO ORDERED.
`
`Dated: June 15, 2021.
`
`______________________________________
`
`LAUREL BEELER
`United States Magistrate Judge
`
`
`18 Opp’n – ECF No. 22 at 10; Compl. – ECF No. 1 at 6 (¶ 26); Robinhood Snacks Newsletter, Ex. A to
`Compl. – ECF No. 1-1 at 1–6.
`19 Mot. – ECF No. 12 at 12–13 (citing Lexmark Int’l v. Static Control Components, Inc., 572 U.S. 118,
`133 (2013), and Chaquico, 271 F. Supp. 3d at 952); Reply – ECF No. 25 at 7 (citing Chaquico, 271 F.
`Supp. 3d at 952). Although Robinhood cited Lexmark in its opening brief, it argues lack of standing under
`the Lanham Act only on the ground that — like the plaintiff in Chaquico — the plaintiff did not allege
`that use of his identity created a misapprehension of sponsorship, endorsement, or affiliation. This order
`thus does not reach the plaintiff’s argument that Lexmark applies only to § 1125(a)(1)(B) false-advertising
`claims, not § 1125(a)(1)(A) false-association claims. Opp’n – ECF No. 22 at 13 (collecting cases); cf.
`LegalForce, Inc. v. LegalZoom.com, Inc., No. 18-CV-07274-MMC, 2019 WL 2088416, at *4 (N.D. Cal.
`May 13, 2019) (assumed but did not decide whether Lexmark applied to a § 1125(a)(1)(A) claim).
`
`ORDER – No. 21-cv-02304-LB
`
`8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`