Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`BARBARA KNAPKE,
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`CASE NO. C21-262 MJP
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`v.
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`Plaintiff,
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`ORDER DENYING MOTION TO
`DISMISS
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`PEOPLECONNECT INC,
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`Defendant.
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`This matter comes before the Court on the Defendant’s Motion to Dismiss. (Dkt. No. 13.)
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`Having reviewed the Motion, Plaintiff Barbara Knapke’s Opposition (Dkt. No. 18), the Reply
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`(Dkt. No. 19), the notices of supplemental authority (Dkt. Nos. 23, 24), and all supporting
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`materials, the Court DENIES the Motion.
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`BACKGROUND
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`PeopleConnect owns and operates Classmates.com, a website that offers visitors access
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`to Classmates’ digital records database that contains “information from school yearbooks,
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`including names, photographs, schools attended, and other biographical information.”
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 2 of 20
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`(Complaint ¶¶ 2-3.) (Note: the Court refers to Defendant as Classmates.) “Classmates provides
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`free access to some of the personal information in its database to drive users to purchase its two
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`paid products – reprinted yearbooks that retail for up to $99.95, and a monthly subscription to
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`Classmates.com that retails for approximately $3 per month – and to get page views from non-
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`paying users, from which Classmates profits by selling ad space on its website.” (Id. ¶ 2.)
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`Classmates allows internet visitors to search for their school from Classmates’ database for free,
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`which may return a result corresponding to a school of which Classmates sells their yearbook
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`services. (Id. ¶ 4-6.) The search results provide a free preview of the services and products with a
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`photo and name of an individual to entice the user to purchase Classmates’ services and
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`products. (Id. ¶¶ 6-8.)
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`Knapke alleges she “discovered that Classmates uses her name and photo in
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`advertisements on the Classmates website to advertise and/or actually sell Defendant’s products
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`and services.” (Compl. ¶ 20.) Knapke identified herself from the image and believes that others
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`could reasonably do so, as well. (Id. ¶ 21.) She has not consented to the use. (Id. ¶ 23.) Knapke is
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`not a customer of Classmates and has no relationship to Classmates. (Id. ¶ 24.) Knapke alleges
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`that her image and identity have commercial value to Classmates to sell its online services. (Id. ¶
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`25.) Yet Knapke has not been compensated by Classmates for the use of her identity. (Id. ¶ 26.)
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`Knapke, a resident of Ohio, seeks to represent a class of similarly-situated Ohio residents who
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`have appeared in an advertisement preview on Classmates. (Id. ¶¶ 15, 27.) She pursues a single
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`claim under the Ohio Right of Publicity Law, Ohio Rev. Code Ann. § 2741.02 (West).
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`ANALYSIS
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`Classmates presents seven arguments in favor of dismissal, as follows: (A) Knapke
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`agreed to arbitrate her claim; (B) Knapke’s claim is barred by the Communications Decency Act;
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`ORDER DENYING MOTION TO DISMISS - 2
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 3 of 20
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`(C) Knapke’s claim is preempted by the Copyright Act; (D) Knapke has not alleged a viable
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`claim under the Ohio Right of Publicity Law; (E) Knapke’s claims fall within an exemption
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`under the Ohio Right of Publicity law; (F) the First Amendment protects Classmates from
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`Knapke’s claims; and (G) the “dormant” Commerce Clause renders Knapke’s claims subject to
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`dismissal. The Court reviews these arguments, none of which convinces the Court dismissal is
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`proper.
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`A.
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`Legal Standard
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`The Court may dismiss a complaint for “failure to state a claim upon which relief can be
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`granted.” Fed. R. Civ. P. 12(b)(6). “A complaint may fail to show a right of relief either by
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`lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal
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`theory.” Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). In ruling on a Rule
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`12(b)(6) motion, the Court must accept all material allegations as true and construe the complaint
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`in the light most favorable to the non-movant. Wyler Summit P’Ship v. Turner Broad. Sys., Inc.,
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`135 F.3d 658, 661 (9th Cir. 1998). The complaint “must contain sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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`B.
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`Arbitration
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`Classmates argues that while acting as Knapke’s agent, Knapke’s counsel assented to
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`Classmates’ terms of service which require arbitration of the present claims. This argument lacks
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`merit.
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`Though neither party provides adequate briefing on what state’s law should apply to
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`resolve this argument, the Court finds Ohio law applies. The Court so concludes because Knapke
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`resides in Ohio and Ohio law should apply to interpreting any attorney-client relationship that
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 4 of 20
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`she entered into from her domicile. Classmates suggests that Washington law applies because
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`that is the location of its headquarters. (Mot. at 2 n.2.) But Washington law only applies to
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`interpreting the terms of service, not the question of whether Knapke’s attorney was acting as her
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`agent when he assented to the terms of service.
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`Under Ohio law “for a principal to be bound by the acts of his agent under the theory of
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`apparent agency, evidence must affirmatively show: (1) [t]hat the principal held the agent out to
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`the public as possessing sufficient authority to embrace the particular act in question, or
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`knowingly permitted him to act as having such authority, and (2) that the person dealing with the
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`agent knew of the facts and acting in good faith had reason to believe and did believe that the
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`agent possessed the necessary authority.” Master Consol. Corp. v. BancOhio Natl. Bank, 61
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`Ohio St. 3d 570, 576, 575 N.E.2d 817, 822 (1991) (citation and quotation omitted). “The
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`apparent power of an agent is to be determined by the act of the principal and not by the acts of
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`the agent; a principal is responsible for the acts of an agent within his apparent authority only
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`where the principal himself by his acts or conduct has clothed the agent with the appearance of
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`the authority and not where the agent’s own conduct has created the apparent authority.” Id. at
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`576-77.
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`There is no evidence that Knapke gave her counsel any authority to bind her to
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`Classmates’ terms of service. Knapke alleges she has never used Classmates’ services and there
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`is no evidence she agreed to the terms of service. Nor is there any evidence that her counsel
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`acted at her direction. Knapke’s Opposition to the Motion states that Knapke did not discuss with
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`counsel creating an account on Classmates. (Opp. at 24 (Dkt. No. 18 at 30).) And Classmates has
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`failed to provide any evidence that Classmates viewed counsel’s creation of an account to have
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`been undertaken on Knapke’s behalf. As Knapke points out, the terms of service themselves
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 5 of 20
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`forbid the creation of accounts on the behalf of others. Moreover, as counsel notes, his use of the
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`Classmates account was done to satisfy his obligations to the Court under Rule 11 to ensure an
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`adequate investigation of the claim presented. In sum, Classmates has not carried its burden to
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`show counsel bound his client when he agreed to the terms of service.
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`This outcome finds support from a similar case brought against Classmates that rejected a
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`nearly identical argument under California law. See Callahan v. PeopleConnect, Inc., 2021 WL
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`1979161, at *6-*7 (N.D. Cal. May 18, 2021). In Callahan, the court found that an attorney
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`cannot act on implied authority to impair his client’s “substantial rights,” which includes waiving
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`judicial review and agreeing to arbitration merely by performing some pre-suit investigation. See
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`id. at *5. The court explained that “absent client consent or ratification, a lawyer cannot bind a
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`client to an arbitration agreement by virtue of the attorney-client relationship alone.” Id. at *6-*7.
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`The same is true here applying Ohio law given the lack of evidence that Knapke gave any
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`authority to counsel to create an account for her or that Classmates knew counsel was acting on
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`her behalf. See Master, 61 Ohio St. 3d at 576; (Opp. at 24 (Dkt. No. 18 at 30)).
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`Classmates misplaces its reliance on Independent Living Resource Center San Francisco
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`v. Uber Technologies, Inc., No. 18-cv-06503, 2019 WL 3430656 (N.D. Cal. July 30, 2019). In
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`that case, the central factual predicate for the claims stemmed from a paralegal’s research on
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`behalf of the client using defendant’s “app” that compelled arbitration of the claims. But here
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`neither Knapke nor her counsel needed to create an account to understand the basis of her claim.
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`Knapke’s claim stems instead from the fact she “discovered that Classmates uses her name and
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`photo in advertisements on the Classmates website to advertise and/or actually sell Defendant’s
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`products and services.” (Compl. ¶ 20.) This aligns with the outcome in Callahan where
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`arbitration could not be compelled in part because counsel’s investigation did “not serve as the
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`ORDER DENYING MOTION TO DISMISS - 5
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 6 of 20
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`basis of Plaintiffs’ claims – i.e., counsel’s use of the Classmates.com website is not the factual
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`predicate for Plaintiffs’ claims.” 2021 WL 1979161, at *6. Nor is there any evidence backing
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`Classmates’ speculation that counsel alone encountered Knapke’s image and that “Counsel
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`created an account so his client would not have to create one herself.” (Reply at 2.) The
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`Complaint plainly contradicts this guesswork. (Compl. ¶¶ 1, 20.)
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`Lastly, the Court rejects Classmates’ request for discovery on this issue. In a footnote,
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`Classmates suggests that it should be entitled to discovery to learn about Knapke’s knowledge
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`and acquiescence to counsel’s use of the account and the identity of who took the screenshots
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`included in the Complaint. (Mot. at 5 n.3.) That information has already been provided in the
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`Opposition, rendering the requested discovery a nullity. (See Dkt. Nos. 18, 18-1.) The Court thus
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`rejects Classmates’ argument that Knapke must arbitrate her claim.
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`C.
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`Communications Decency Act
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`Classmates unsuccessfully argues that it is entitled to immunity under the
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`Communications Decency Act, 47 U.S.C. § 230(c)(1).
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`To be entitled to dismissal based on this affirmative defense, Classmates must show that
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`the Complaint’s allegations demonstrate that Classmates is: (1) an interactive computer service
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`provider; (2) publishing information “provided by another information content provider.” 47
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`U.S.C. § 230(c)(1). The CDA defines “information content provider” as “any person or entity
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`that is responsible, in whole or in part, for the creation or development of information provided
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`through the Internet or any other interactive computer service.” 47 U.S.C. § 230(c)(1). As to the
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`first element, the Ninth Circuit interprets the term “interactive computer service provider”
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`expansively. See Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019),
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`cert. denied, 140 S. Ct. 2761, 206 L. Ed. 2d 936 (2020). And as to the second element, “what
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 7 of 20
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`matters is whether the claims ‘inherently require[ ] the court to treat the defendant as the
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`‘publisher or speaker’ of content provided by another.’” Id. at 1098 (quoting Barnes v. Yahoo!,
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`Inc., 570 F.3d 1096, (9th Cir. 2009)).
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`“The prototypical service qualifying for [CDA] immunity is an online messaging board
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`(or bulletin board) on which Internet subscribers post comments and respond to comments
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`posted by others.” Kimzey v. Yelp! Inc., 836 F.3d 1263, 1266 (9th Cir. 2016) (internal
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`quotations omitted). “Taking the relevant statutory definitions and case law in account, it
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`becomes clear that, in general, Section 230(c)(1) ‘protects websites from liability [under state or
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`local law] for material posted on the[ir] website[s] by someone else.’” Dyroff, 934 F.3d at 1097
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`(quoting Doe v. Internet Brands, Inc., 824 F.3d 846, 850 (9th Cir. 2016)). When the interactive
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`computer service provider creates the content itself it “is also a content provider” and not entitled
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`to protection under the CDA. See Fair Hous. Council of San Fernando Valley v.
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`Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008). In other words, the CDA’s “grant
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`of immunity applies only if the interactive computer service provider is not also an information
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`content provider, which is defined as someone who is responsible, in whole or in part, for the
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`creation or development of the offending content.” Id. (internal citations omitted).
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`Based on the Court’s review of the Complaint, Classmates is not entitled to protection
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`under the CDA. The sole issue in this case is whether Classmates’ decision to create
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`advertisements using Knapke’s identity violates Ohio law. (Compl. ¶¶ 1-10.) The offending
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`content is generated by Classmates and the advertisement is not merely some passive display of
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`content created by another entity, even if it contains a picture from a school yearbook. In this
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`context, Classmates is the content creator and not entitled to immunity under the CDA. See
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`Roomates.Com, 521 F.3d at 1162.
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 8 of 20
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`Classmates misplaces reliance on Callahan v. Ancestry.com, Inc., No. 20-CV-08437-LB,
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`2021 WL 783524, at *5 (N.D. Cal. Mar. 1, 2021) to argue that posting yearbooks online is
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`protected by the CDA. (Mot. at 6) The case is factually distinguishable because the court focused
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`on defendant’s online display of yearbooks created by third parties. See Callahan, 2021 WL
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`783524, at *5. Here, the focus is on Classmates’ use of a yearbook photo in stand-alone
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`advertisements it uses to lure in potential customers. That form of customized advertisement is
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`not protected under the CDA. As the Ninth Circuit recently explained “[w]hat matters . . . is
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`‘whether the cause of action inherently requires the court to treat the defendant as the ‘publisher
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`or speaker’ of content provided by another.’” Gonzalez v. Google LLC, 2 F.4th 871, 891 (9th
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`Cir. 2021) (quoting Barnes, 570 F.3d at 1102). That cannot be said of the present matter. As
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`alleged, Classmates is the publisher of its own content, which is unprotected by the CDA.
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`The Court rejects application of the CDA as a basis to dismiss the Complaint.
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`D.
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`Copyright Act
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`The Copyright Act provides that “the owner of copyright ... has the exclusive rights to do
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`and to authorize” others to display, perform, reproduce or distribute copies of the work and to
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`prepare derivative works. 17 U.S.C. § 106. “Section 301 of the Act provides for exclusive
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`jurisdiction over rights that are equivalent to any of the exclusive rights within the general scope
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`of copyright as specified in the Act.” Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d
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`1146, 1152 (9th Cir. 2010). The Ninth Circuit employs a two-part test to measure preemption:
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`(1) does the subject matter of the state law claim fall within the subject matter of copyright as
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`described in 17 U.S.C. §§ 102 and 103; and (2) if so, are the rights asserted under state law are
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`equivalent to the rights contained in 17 U.S.C. § 106? See id. at 1153 (quoting Laws v. Sony
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`Music Entm’t, Inc., 448 F.3d 1134, 1137-38 (9th Cir. 2006)).
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`ORDER DENYING MOTION TO DISMISS - 8
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 9 of 20
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`As set forth in Section 102, “[c]opyright protection subsists . . . in original works of
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`authorship fixed in any tangible medium of expression, now known or later developed, from
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`which they can be perceived, reproduced, or otherwise communicated, either directly or with the
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`aid of a machine or device [and w]orks of authorship include . . . pictorial, graphic, and
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`sculptural works.” 17 U.S.C. § 102. “Section 103 provides that the subject matter specified in §
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`102 also includes compilations and derivative works, ‘but the copyright in a compilation or
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`derivative work extends only to the material contributed by the author of such works as
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`distinguished from the preexisting material employed in the work.’” Id. at 1003 (quoting 17
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`U.S.C. § 103).
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`A “person’s name or likeness is not a work of authorship within the meaning of 17
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`U.S.C. § 102.” Downing v. Abercrombie & Fitch, 265 F.3d 994, 1004 (9th Cir. 2001). This is
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`true even if the plaintiff’s “names and likenesses are embodied in a copyrightable photograph.”
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`Id. Thus, “a publicity-right claim is not preempted when it targets non-consensual use of one’s
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`name or likeness on merchandise or in advertising.” Maloney v. T3Media, Inc., 853 F.3d 1004,
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`1010 (9th Cir. 2017). “But when a likeness has been captured in a copyrighted artistic visual
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`work and the work itself is being distributed for personal use, a publicity-right claim interferes
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`with the exclusive rights of the copyright holder, and is preempted by section 301 of the
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`Copyright Act.” Id.
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`Classmates has failed to satisfy the first step of the inquiry under Copyright Act
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`preemption. The non-consensual use of Knapke’s name and likeness for advertising causes the
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`claim to fall outside of the Copyright Act’s preemption. Knapke alleges that Classmates has
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`misused her likeness for advertisements, which are not works or authorship under Section 102 of
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`the Copyright Act. See Downing, 265 F.3d at 1004. Moreover, Knapke’s Right to Publicity Law
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 10 of 20
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`claim seeks to prevent the commercial exploitation of her identity for a commercial purpose
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`through advertisements, which is not subject to the Copyright Act’s preemption. See Maloney,
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`853 F.3d at 1010. The Court rejects this as a basis for dismissal of the Complaint.
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`E.
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`Ohio Right of Publicity Law
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`Under Ohio’s Right of Publicity Law, “a person shall not use any aspect of an
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`individual’s persona for a commercial purpose.” Ohio Rev. Code Ann. § 2741.02 (West).
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`“Persona” is defined as “an individual’s name, voice, signature, photograph, image, likeness, or
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`distinctive appearance, if any of these aspects have commercial value.” Ohio Rev. Code Ann. §
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`2741.01(A) (West). “‘Commercial purpose’ means the use of or reference to an aspect of an
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`individual's persona . . . [f]or advertising or soliciting the purchase of products … services, or
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`other commercial activities.” Ohio Rev. Code Ann. § 2741.01(B). The law grants a private right
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`of action to “individual[s] whose right of publicity is at issue” absent consent. Ohio Rev. Code
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`Ann. § 2741.06(A). “The right of publicity in the persona of an individual whose domicile or
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`residence is in this state.” Ohio Rev. Code Ann. § 2741.03.
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`Knapke has stated a claim under the Right of Publicity Law. She has alleged that
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`Classmates has used her persona—name and photograph—for a commercial purpose—selling
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`Classmates’ products and services. The Complaint’s allegations more than satisfy these
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`elements. (See Compl. ¶¶ 1, 6-10, 20-22, 36-37.)
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`Notwithstanding the adequacy of the Complaint, Classmates makes several arguments in
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`favor of dismissal, none of which has merit. First, Classmates argues that Knapke has not alleged
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`a “use” of her persona in violation of the Law because she has not alleged that anyone else has
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`seen this same image. Classmates relies on common law claims that require some allegation that
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`members of the public saw the offending image. (See Mot. at 11 (Dkt. No. 13 at 20) (citing
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`ORDER DENYING MOTION TO DISMISS - 10
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 11 of 20
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`Jackson v. Playboy Enters., Inc., 574 F. Supp. 10, 13 (S.D. Ohio 1983); Fox v. Nationwide Mut.
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`Ins. Co., 117 N.E.3d 121, 145 (Ohio Ct. App. 2018)).) Classmates fails to explain why this
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`element from common law false light claims should be imputed into the Right of Publicity Law.
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`While courts may look to common law claims to help understand the Right of Publicity Law,
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`none has imputed a new element into the Law from common law tort. (See Reply at 6-7 (citing
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`cases).) The Court finds no valid basis to write a new provision into the Right of Publicity Law.
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`And accepting the allegations of the Complaint as true, Knapke has alleged a “use” of her
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`image—she alleges that she discovered Classmates using her image to market its products and
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`services on the internet, which is available to the public at large. (Compl. ¶¶ 6, 10, 20-26.) This
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`satisfies her burden under the Law.
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`Second, Classmates argues Knapke fails to plead that her persona has “commercial
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`value,” as required by the Right of Publicity Law. To satisfy this element, the plaintiff need only
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`plead that there is some value in associating a good or service with her identity. See Harvey v.
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`Systems Effect, LLC, 154 N.E. 3d. 293, 306 (Ohio App. 2020). “While plaintiffs need not be
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`national celebrities to assert a right of publicity claim, they must at least ‘demonstrate that there
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`is value in associating an item of commerce with [their] identity.’” Roe v. Amazon.com, 714 F.
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`App'x 565, 568 (6th Cir. 2017) (unpublished) (citing Landham v. Lewis Galoob Toys, Inc., 227
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`F.3d 619, 624 (6th Cir. 2000); McFarland v. Miller, 14 F.3d 912, 919-20 (3d Cir. 1994) (stating
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`that the right of publicity is worthless without association)). “The mere incidental use of a
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`person’s name or likeness is not actionable in an appropriation claim.” Id. (citing Vinci v. Am.
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`Can Co., 69 Ohio App.3d 727, 591 N.E.2d 793, 794 (1990) (per curiam)). Here, the use of
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`Knapke’s persona is not incidental to the advertisement. Her persona is used to make the
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`advertisement, which shows its commercial value. This differs from the use of a plaintiff’s
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 12 of 20
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`photograph as a book cover in Roe, which was incidental to the publication and sale of a book.
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`The Court finds Knapke has alleged a commercial value to her persona.
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`Third, Classmates argues that Knapke has not shown that the use of her persona was for
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`anything other than an informational purpose, which it claims falls outside of the Law. This
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`argument wholly ignores the allegations in the Complaint and asks the Court to consider a
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`potential defense that relies on facts outside of the Complaint. The Court rejects this
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`inappropriate attack to the Complaint
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`Fourth, Classmates argues that Knapke has not pleaded conduct that occurred in Ohio and
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`that the Right of Publicity Law can only apply in Ohio—i.e., it has no extraterritorial effect.
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`(Mot. at 10. (citing Mitchell v. Abercrombie & Fitch, No. C2-04-306, 2005 WL 1159412, at *3
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`(S.D. Ohio May 17, 2005)).) According to Classmates, this means Knapke must allege that the
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`violation occurred in Ohio by alleging someone in Ohio saw her identity in an advertisement.
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`(Id.) The Court disagrees. First, there is no express element that someone in Ohio view the
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`misappropriated likeness. Rather, it only requires that the plaintiff be domiciled in Ohio, and
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`Knapke has alleged she is an Ohio resident. See Ohio Rev. Code Ann. § 2741.03; Compl. ¶ 15.
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`As alleged, there is no “extraterritorial” application of the law. Second, the Complaint alleges
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`that Knapke herself discovered Classmates is using her likeness. (Compl. ¶ 20.) While the
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`Complaint does not say precisely where this occurred, Knapke is a resident of Ohio and
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`Classmates operates a website that is available to Ohioans generally. As such, the Court
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`reasonably infers that the discovery occurred in Ohio. The Court rejects this argument.
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 13 of 20
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`F.
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`Exemptions to the Ohio Right of Publicity Law
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`Classmates argues that its advertisement is exempted from the Ohio Right of Publicity
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`Law because is a “literary work” or a matter of “public affairs.” (Mot. at 15-17.) The Court is
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`only partially convinced.
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`1.
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`Literary Work
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`First, Classmates argues that its advertisements are exempt because they advertise literary
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`works. The Court agrees in part, though this does not merit dismissal of the claim.
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`The Ohio Right of Publicity Law does not apply to “[a] literary work, dramatic work,
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`fictional work, historical work, audiovisual work, or musical work regardless of the media in
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`which the work appears or is transmitted, other than an advertisement or commercial
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`announcement” for such a work. Ohio Rev. Code § 2741.09(A)(1)(a), (d). Invoking the federal
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`Copyright Act, Classmates argues that its yearbook products and services are literary works,
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`which generally includes “works . . . expressed in words, numbers, or other verbal or numerical
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`symbols or indicia, regardless of the nature of the material objects, such as books, periodicals,
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`manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.” (See Mot.
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`at 16 (citing 17 U.S.C. § 101).)
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`Applying that definition, the Court agrees with Classmates that advertising yearbooks for
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`purchase is an advertisement of a literary work and exempt from the Law. Plaintiffs offer no
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`reasoning why the advertisements of a yearbook would not fall within this exemption, relying
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`instead on a case applying an Illinois law that is substantively different from the Ohio Right of
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`Publicity Law. (Opp. at 9 (citing Lukis v. Whitepages Inc., No. 19 C 4871, 2020 WL 6287369, at
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`*1 (N.D. Ill. Oct. 27, 2020)). The Court agrees with Classmates that the advertisement for the
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`sale of reprinted yearbooks is exempt. But Classmates also advertises a subscription service to
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 14 of 20
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`“‘keep in touch’ with other classmates.” (Compl. ¶ 10.) That form of advertisement does not
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`advertise a literary work and is not exempt from the Law. As such, the Court finds that the claim
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`cannot be based on the advertisement of the sale of yearbooks, but it can attack the advertisement
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`of Classmates’ other subscription services. On that basis, the Court finds the claim falls outside
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`of this exemption and may move forward.
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`2.
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`Public Affairs
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`Second, Classmates argues that its advertisements are exempt because they are matters of
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`public affairs. This argument fails.
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`The Right of Publicity Law exempts: (1) “use of an aspect of an individual’s persona in
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`connection with any news, public affairs, sports broadcast or account”; (2) “[m]aterial that has
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`political or newsworthy value”; and (3) “use of an aspect of an individual’s persona in
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`connection with the broadcast or reporting of an event or topic of general or public interest.”
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`Ohio Rev. Code §§ 2741.02(D)(1); 2741.09(A)(1)(b), (A)(3). Under these exemptions, the “use
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`of a person’s identity primarily for the purpose of communicating information . . . is not
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`generally actionable.” See Harvey, 154 N.E.3d at 308 (quotation and citation omitted)
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`This exemption does not apply to the allegations in the Complaint, which assert that the
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`use of Knapke’s persona to sell Classmates’ subscription service is for a commercial purpose and
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`not to communicate news. The Court finds no merit in Classmates argument on this point.
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`G.
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`First Amendment
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`Classmates argues that “where a person’s name, image, or likeness is used in speech for
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`‘informative or cultural’ purposes, the First Amendment renders the use ‘immune’ from
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`liability.” (Mot. at 18 (citing New Kids on the Block v. News Am. Publ’g, Inc., 745 F. Supp.
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`1540, 1546 (C.D. Cal. 1990), aff’d, 971 F.2d 302 (9th Cir. 1992)).) And, quoting a Sixth Circuit
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 15 of 20
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`decision, Classmates also argues that a yearbook “‘serves as a forum in which student editors
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`present pictures, captions, and other written material.’” (Id. (quoting Kincaid v. Gibson, 236 F.3d
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`342, 351 (6th Cir. 2001)).) The Court construes Classmates’ First Amendment challenge to be
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`limited to the specific claim Knapke makes, and not to the Right of Publicity Law generally. Had
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`Classmates sought that broader relief it would have had and has failed to provide notice to the
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`Ohio Attorney General under Rule 5.1.
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`The first question is whether the advertisement of Classmates’ subscription services is
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`core First Amendment speech or commercial speech. Commercial speech is “defined as speech
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`that does no more than propose a commercial transaction.” United States v. United Foods, Inc.,
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`533 U.S. 405, 409 (2001). The Supreme Court has noted that “advertising which ‘links a product
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`to a current public debate’ is not thereby entitled to the constitutional protection afforded
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`noncommercial speech.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 67–68 (1983)
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`(holding that “information pamphlets are properly characterized as commercial speech.”).
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`“Where the facts present a close question, ‘strong support’ that the speech should be
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`characterized as commercial speech is found where the speech is an advertisement, the speech
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`refers to a particular product, and the speaker has an economic motivation.” Hunt v. City of Los
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`Angeles, 638 F.3d 703, 715 (9th Cir. 2011) (citing Bolger, 463 U.S. at 66–67). But
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`“[c]ommercial speech does not retain its commercial character ‘when it is inextricably
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`intertwined with otherwise fully protected speech.’” Id. (quoting Riley v. Nat’l Fed. of the Blind
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`of N. Car., Inc., 487 U.S. 781, 796 (1988)).
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`Classmates’ advertisement at issue is commercial speech. The use of Knapke’s image and
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`name is alleged to be done for the purpose of enticing viewers into buying or subscribing to
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`Classmates’ products and services. The challenged conduct is not the offer of access to
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`Case 2:21-cv-00262-MJP Document 25 Filed 08/10/21 Page 16 of 20
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`yearbooks or even buying reprinted copies. In fact, Knapke expressly does not challenge the sale
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`of her information in the yearbooks. (Compl. ¶ 14.) Rather, she seeks to prevent the commercial
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`use of her images to sell access to yearbooks and other subscripti