Pratt v. Everalbum, Inc.
Filing
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OPINION AND ORDER. Signed by the Honorable Sara L. Ellis on 9/20/2017. Mailed notice(rj, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DANNY PRATT,
Plaintiff,
v.
EVERALBUM, INC., a Delaware
corporation
Defendant.
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No. 17 C 1600
Judge Sara L. Ellis
OPINION AND ORDER
Plaintiff Danny Pratt brings this putative class action complaint against Defendant
Everalbum, Inc. (“Everalbum”), alleging Everalbum has violated the Illinois Right of Publicity
Act (“IRPA”), 765 Ill. Comp. Stat. 1075/1 et seq., by using Pratt’s name without his consent in
text invitations sent to his contacts through the set-up process of its mobile application (“app”),
Ever.1 Everalbum has filed a motion for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). Everalbum argues that (1) IRPA does not apply when the use of another’s
identity occurs outside the public sphere, and (2) Pratt expressly consented to the use of his name
in the text messages sent through the Ever app. Because the Court concludes that Pratt
consented to the use of his name in the text messages, the Court grants Everalbum’s motion for
judgment [25].
1
Pratt initially also brought a claim against Everalbum for breach of contract (Count II of the complaint),
but the parties have stipulated to the dismissal of this claim. See Doc. 23.
BACKGROUND2
Everalbum owns and manages Ever, a smartphone app that provides photo and video
storage space for Apple and Android devices and allows users to share and edit photos. In
October 2016, when Pratt downloaded Ever, that version of the app offered users 1000 gigabytes
(“GB”) of free photo storage if they invited all their contacts to use the app.
The app set-up process worked as follows: when a user downloaded Ever, he or she
created an account. The app offered users two options: a free version allowing unlimited basic
photo storage or an upgraded paid monthly service allowing storage of photos and high
definition videos. As part of the set-up process, users were presented with a screen that stated
“Allow Access to Contacts?” where users could select either “No Thanks” or “Get Free
Storage.” Doc. 1-1 ¶ 16. If users selected “Get Free Storage,” the app displayed a confirmation
prompt asking users to allow Ever to access their contacts, reading “‘Ever’ would like to access
your contacts.” Doc. 17-1 ¶ 10. This allowed the user to choose which contacts to invite with
options of “Don’t allow” and “OK.” Id. Selecting “OK” led the user to another screen that said
“Never Pay for Photo Storage Again,” informing users that they could “Earn 1000 GB by
inviting all friends” to download Ever “Via SMS.” Id. ¶ 11; Doc. 1-1 ¶ 16. Users could then
select which contacts would receive invitations, pressing an “Unlock Free Storage” button for
invitations to be sent. Doc. 17-1 ¶ 12. After doing so, users landed on a screen thanking them
for inviting friends to join Everalbum, which also stated “Your friends received a text inviting
2
In deciding Everalbum’s motion for judgment on the pleadings, the Court considers Pratt’s complaint,
Everalbum’s answer, and the documents attached as exhibits to Everalbum’s answer in the light most
favorable to Pratt. N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452–53 (7th Cir.
1998); Drager v. Bridgeview Bank, No. 1:10-cv-7585, 2011 WL 2415244, at *3 (N.D. Ill. June 13, 2011)
(court may consider affidavit attached to defendant’s answer in ruling on Rule 12(c) motion without
converting motion into a motion for summary judgment).
2
them to view and store their photos. Your photos are always private and were not shared.” Doc.
17-1 ¶ 13.
Once users elected to unlock the offered free storage, Everalbum sent text message
invitations to the selected contacts that read “[user name] just recommended you check out your
photos on Ever. Link expires tomorrow,” followed by a link to the Apple App Store or Google
Play Store. Doc. 1-1 ¶ 19; Doc. 17-1 ¶¶ 14–15. The name displayed in the message was the user
name provided by the user during the creation of his or her account.
Pratt downloaded the app in October 2016, went through the invitation process, and
elected to invite all his contacts. Pratt’s contacts then received the above text message with his
name (Danny Pratt) in place of the [user name]. Like all Ever users, Pratt was not able to edit or
see the content of the invitation before the invitation went out.
LEGAL STANDARD
“A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil
Procedure is governed by the same standards as a motion to dismiss for failure to state a claim
under Rule 12(b)(6).” Adams v. City of Indianapolis, 742 F.3d 720, 727–28 (7th Cir. 2014). A
motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits.
Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In
considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in
the plaintiff’s complaint and draws all reasonable inferences from those facts in the plaintiff’s
favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule
12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim’s
basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
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1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
ANALYSIS
I.
IRPA Violation
Pratt claims that Everalbum used his and other class members’ names without their
consent in the text messages sent to their contacts in violation of IRPA. IRPA prohibits the use
of one’s identity for commercial purposes without his or her written consent.3 765 Ill. Comp.
Stat. 1075/30. IRPA includes a person’s name as part of his or her “identity.” 765 Ill. Comp.
Stat. 1075/5. IRPA defines “commercial purpose” as:
the public use or holding out of an individual’s identity (i) on or in
connection with the offering for sale or sale of a product,
merchandise, goods, or services; (ii) for purposes of advertising or
promoting products, merchandise, goods, or services; or (iii) for
the purpose of fundraising.
Id. To state an IRPA claim, Pratt must allege (1) appropriation of his name or likeness
(2) without his written consent and (3) for another’s commercial benefit. See Blair, 859 N.E.2d
at 1191–92. Everalbum argues that Pratt’s IRPA claim fails because (1) IRPA does not reach
private communications recommending a product or service, such as the text messages at issue
here, and (2) Pratt expressly consented to having his identity revealed in the text messages when
he granted the app access to his contacts and selected to send invitations to those contacts. The
Court need only address the issue of consent to dispose of the case.
Everalbum argues that Pratt’s allegations demonstrate he gave written consent to the use
of his name in the text messages by voluntarily electing to send those messages to his contacts
3
IRPA completely replaces common law right of publicity or appropriation of one’s likeness claims. See
Blair v. Nev. Landing P’ship, 859 N.E.2d 1188, 1192, 369 Ill. App. 3d 318, 307 Ill. Dec. 511 (2006).
4
during the app’s set-up process. Everalbum highlights the fact that, in selecting to obtain free
storage through the Ever app, Pratt agreed to send the invitations to his selected contacts “[v]ia
sms.” Doc. 17-1 ¶¶ 10–13. As Ever notes, once a user like Pratt finalized the invitation process
by pressing the “[u]nlock free storage” button, the invitations were sent to the user’s selected
contacts and the user landed on a confirmation page that indicated that “[y]ou invited friends”
and “[y]our friends received a text inviting them to view and store their photos.” Id. ¶ 13. Pratt
takes issue with Everalbum’s argument, arguing that the messages amounted to deceptive
advertisements that went beyond the scope of any purported consent Pratt may have given to
sending messages to his contacts. Pratt further claims he could not have expected to have his
name appear on the invitations or for the invitations to include false statements.
IRPA provides individuals with the right to control and choose whether and how their
identity is used for commercial purposes. 765 Ill. Comp. Stat. 1075/10. Under IRPA, consent is
not a binary matter; one can consent to the use of his or her identity for one purpose but not
another. See, e.g., Trannel v. Prairie Ridge Media, Inc., 987 N.E.2d 923, 931, 2013 Ill. App. 2d
120725, 370 Ill. Dec. 157 (2013) (finding that plaintiff’s consent for one purpose did not extend
to unlimited use of likeness for commercial purposes); Trudeau v. Lanoue, No. 04 C 7165, 2006
WL 516579, at *6 (N.D. Ill. Mar. 2, 2006) (finding that use by defendants of plaintiff’s name and
likeness in creating websites and registering trademarks went “far beyond the limited scope” of
the authorization he provided to distributors to use his identity in advertising materials). Pratt
contends that, in including his name in the text invitation and not allowing him to preview the
message sent to his contacts, Everalbum exceeded the scope of any consent he provided. The
Court disagrees, however.
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The Ever app asked for Pratt’s consent before sending text messages to his contacts,
informing Pratt that he could choose which friends to invite and that those invitations would be
sent via text message. Pratt affirmatively decided to follow through with the sending of the
messages, clicking through several prompts before those invitations were sent. In an analogous
situation, a California court considering a common law right of publicity claim found that, based
on the representations made by LinkedIn, “a reasonable user would have understood that her
name would be used in invitations to join LinkedIn that would be sent to her contacts who were
not already LinkedIn users.” Perkins v. LinkedIn Corp., 53 F. Supp. 3d 1190, 1215 (N.D. Cal.
2014). Like with the Ever app, during LinkedIn’s account creation process, users have the
opportunity to send invitations to their friends. Id. at 1197. Users go through a similar multistep invitation process that requests access to the user’s contacts, with multiple opportunities to
cancel the invitations. Id. at 1197–99. For example, users are presented with the opportunity to
“[s]tay in touch with your contacts who aren’t on LinkedIn yet. Invite them to connect with
you.” Id. at 1199. If users send the invitations, their contacts receive emails stating, “I’d like to
add you to my professional network” with a signature line including the sender’s name. Id. The
Perkins court found that, based on the disclosures LinkedIn made, and the opportunities provided
to opt-out, users consented to the use of their name in this initial invitation email.4 Id. at 1215.
Similar to Perkins, although Everalbum never presented Pratt with the exact text of the message,
the use of his name was necessary to the invitation process and the Court therefore finds that
Pratt’s consent to the sending of the invites included the use of his name. See id.
4
The Perkins court did limit LinkedIn users’ consent to the use of their names to only the initial
invitational email, finding that, at the pleading stage, the consent to the first email did not defeat the right
of publicity claim as it related to subsequent invitational emails that LinkedIn sent out on users’ behalf.
Perkins, 53 F. Supp. 3d at 1216. Here, however, Pratt only alleges that Everalbum sent one text message
to each of his contacts, so the Perkins court’s caveat does not apply.
6
The Court does not find Pratt’s citation to Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090
(N.D. Cal. 2011), to require a different result. Unlike the situation in Cohen, users of the Ever
app do not consent to a blanket terms of service agreement with various unforeseeable provisions
buried in fine print. See id. at 1095 (holding that users did not consent to the use of their identity
for commercial purposes using Facebook’s “Friend Finder” service because the terms of service
were too ambiguous to find consent). Instead, the Ever app in clear terms on consecutive screens
suggested that Pratt invite friends, asked for access to his contacts, and informed him that the
messages would be sent “via SMS.” Doc. 17-1 ¶ 11. Pratt had to explicitly choose to give Ever
access to his contacts, invite all his contacts via SMS, and pass up multiple opportunities to
cancel the invitation process before the messages were sent. Such a process, as discussed above,
provides notice that the Ever user’s name will be used in the messages sent to the user’s contacts.
See Perkins, 53 F. Supp. 3d at 1215.
Pratt also argues that his expectation that Ever not use his name in the invitations is
reasonable because not all mobile apps incorporate senders’ names into invitations, providing
two examples of such applications. See Doc. 26 at 9 (citing Cour v. Life360 Inc., No. 16-cv00805, 2016 WL 4039279, at *1 (N.D. Cal. July 28, 2016), and McKenna v. WhisperText, No.
5:14-cv-00424-PSG, 2015 WL 5264750, at *1 (N.D. Cal. Sept. 9, 2015)). Both cases involved
apps that sent text invitations from anonymous numbers and without the sender’s name. See id.
However, the mere existence of other applications that send anonymous invitations does not
make Pratt’s expectation reasonable, particularly when Pratt has not claimed any knowledge of
or reliance on such apps and the words the Ever app used to frame the invites does not suggest an
anonymous invitation. Other cases involving so-called spam-vites brought under the Telephone
Consumer Protection Act (“TCPA”) have found that when a user sends invitations like those
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involved here via an app to one’s contacts, the sender of the message is the user, not the app. See
Warciak v. Nikil, Inc., No. 16 C 5731, 2017 WL 1093162, at *2–3 (N.D. Ill. Mar. 23, 2017)
(deciding on a motion to dismiss that text message using user’s name and inviting plaintiff to
download app was initiated by the user and so could not support a TCPA claim); In re Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961 ¶ 27 (July
10, 2015) (determining that when users take multiple affirmative steps to send an invitation
through a mobile app, the user, not the app provider, is the sender of that text message).5 This
further supports the Court’s conclusion that, in agreeing to send an invitation via text message to
his contacts, Pratt consented, as the sender of the message, to the use of his identity in that
message. The fact that Ever provided the mechanism for Pratt to send such messages is beside
the point.
Finally, Pratt’s contention that the text invitations were advertisements rather than
invitations is a distinction without a difference because the fact of inviting someone to use a
product necessarily involves advertising for that product. See Perkins, 53 F. Supp. 3d at 1215
(finding no meaningful difference between “invitation emails” and “endorsement emails” for
user-initiated invitations). Pratt elected to “[e]arn 1000 GB by inviting friends” and selected the
contacts he wished to invite. See Doc. 1-1 ¶ 16. But Pratt argues that the advertisements
included deceptive and false statements. Pratt does not explain why this would affect his consent
to the use of his name in the messages, however, and so the Court does not address the merits of
this argument. See Nelson v. Napolitano, 657 F.3d 586, 590 (7th Cir. 2011) (the court is not
“obliged to research and construct legal arguments for parties, especially when they are
represented by counsel”).
5
The FCC Order is binding on this Court under the Hobbs Act since neither the Seventh Circuit nor the
Supreme Court has ruled on whether the user or the app is responsible for sending text message invites.
See Warciak, 2017 WL 1093162 at *2 n.1.
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Because the Court finds that Pratt consented to the use of his identity in the text messages
Everalbum sent to his contacts, negating a key element of his IRPA claim, the Court finds that
Pratt’s IRPA claim fails and grants Everalbum’s motion for judgment on the pleadings.
II.
Attorneys’ Fees and Costs
Everalbum requests that the Court award it all its attorneys’ fees, costs, and expenses
incurred in connection with this motion for judgment on the pleadings as the prevailing party
pursuant to IRPA’s statutory fee provision. IRPA provides that “[t]he court may award to the
prevailing party reasonable attorney’s fees, costs, and expenses relating to an action under this
Act.” 765 Ill. Comp. Stat. 1075/55. Having found for Everalbum, Everalbum is the prevailing
party in this action. See T.D. v. LaGrange Sch. Dist. No. 102, 349 F.3d 469, 474 (7th Cir. 2003)
(“prevailing party is “‘a legal term of art,’ which signified that the party . . . had been granted
relief by a court,” such as in a judgment on the merits or a consent decree); Krautsack v.
Anderson, 861 N.E.2d 633, 643, 223 Ill. 2d 541, 308 Ill. Dec. 302 (2006) (“prevailing party”
includes both prevailing plaintiffs and defendants). But IRPA’s fee provision, using the word
“may,” provides the Court with the discretion to award attorneys’ fees. See Krautsack, 861
N.E.2d at 643. “A court should award attorney fees pursuant to a statutory fee provision where
the objectives of the statute and fee provision will be promoted.” Callinan v. Prisoner Review
Bd., 862 N.E.2d 1165, 1169, 371 Ill. App. 3d 272, 308 Ill. Dec. 962 (2007). As already noted,
IRPA protects an individual’s “right to control and to choose whether and how to use [his or her]
identity for commercial purposes.” 765 Ill. Comp. Stat. 1075/10. IRPA provides remedies for
the violation of an individual’s right of publicity, compensating victims and punishing violators.
See 765 Ill. Comp. Stat. 1075/40.
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While Everalbum has prevailed in this case, demonstrating that Pratt consented to the use
of his identity in the text messages at issue, the Court does not find it appropriate to award
Everalbum its attorneys’ fees, costs, and expenses. Everalbum has not demonstrated how doing
so would further IRPA’s objectives. Although Everalbum may argue that an award of fees and
costs would have a deterrent effect on future similar suits, the Court notes that IRPA decisions
are few, and, with advances in technology, Pratt’s claim and arguments concerning IRPA’s reach
and the efficacy of his consent cannot be said to have been frivolous or unfounded. Ultimately,
the Court does not agree with Pratt, but this, in the Court’s opinion, does not warrant an award of
fees and costs under IRPA’s discretionary fee provision.
CONCLUSION
For the foregoing reasons, the Court grants Everalbum’s motion for judgment on the
pleadings [25]. The Court enters judgment for Everalbum on Pratt’s IRPA claim (Count I) and
terminates this case. The Court declines to award Everalbum its attorneys’ fees, costs, and
expenses.
Dated: September 20, 2017
______________________
SARA L. ELLIS
United States District Judge
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