As consumers increasingly communicate and interact through social media platforms, courts have had to grapple with how to apply existing laws to new ways of communicating, as well as disseminating and using content. Sometimes, however, traditional legal standards apply to these new platforms in a straightforward manner. At least, that is what the court found in Dancel v. Groupon, Inc., a putative class action against Groupon, Inc., alleging that Groupon’s use of images originally posted on the social media site Instagram violated users’ rights under the Illinois Right of Publicity Act (IRPA).
Groupon, a website that offers consumers deals on goods and services, built a widget intended to provide its users a window into businesses for which Groupon offered deals. The widget used Instagram’s API to find photos that Instagram users had taken at particular locations, and then displayed those images under the deals offered on Groupon’s own website. When a visitor to the Groupon page hovered his or her mouse over the Instagram images, the Groupon user could see the username of the person who posted the photo on Instagram and an associated caption, if there was one.
Dancel, who maintains an Instagram account with the username “meowchristine,” took a selfie of herself and her boyfriend in front of a restaurant and posted it on Instagram with a tag noting the name of the restaurant. Groupon later displayed this photograph, among others, in connection with its deal for the same restaurant.
Dancel moved to certify a class of all persons in the United States who maintained Instagram accounts and whose photographs were acquired and used on a Groupon webpage for an Illinois business, and a subclass of all members whose likeness appeared in any such photograph. The court, however, denied Dancel’s motion for class certification pursuant to Federal Rule of Civil Procedure 23(b)(3), which requires a plaintiff seeking certification to demonstrate that common questions of law or fact predominate in the class (as opposed to questions affecting individual members of the class).
According to the court, there was no single, common answer as to whether Instagram usernames could establish the identity of a particular person under the IRPA. The use of an “identity” under the IRPA requires that the use be sufficient to identify the person to a reasonable audience, but the court found that the answer to this question was an individual one, making the claim inappropriate for a class action.
While this ruling is informative with respect to the relatively narrow issue of class actions alleging violations of the IRPA based on the use of social-media handles and related images in a commercial context, the result might be different in other jurisdictions or with slightly different facts. State law governs the right-of-publicity, and variations in state statutes and state courts’ interpretations of common law rights could impact the outcome of a similar claim in another jurisdiction. For example, in California the common law right of publicity broadly interprets “identity” to mean anything that evokes a person’s identity. In addition, the court in Dancer dismissed without explanation the idea that a photo of a person would clearly “identify” that person under the IRPA for purposes of class certification, though it is not obvious that another court would reach the same conclusion.
Moreover, the court’s ruling concerned the issue of class certification, but did not directly address the merits of the underlying right of publicity claim itself. While class actions present potentially greater liability for companies, even individual claims can be problematic. Accordingly, companies that use user-generated content in connection with their social media posts should take note of this case for the questions it did not answer, and assess their use of such content with an eye to the potential for publicity-rights-related claims.
More generally, Dancel is a good reminder that user-generated content posted on social media platforms is not necessarily freely available for use in other contexts. We saw this in the well-known case AFP v. Morel, in which a wire service and photo agency were held to have infringed the copyright in photographs taken from Twitter without the permission of the photographer who posted them. And another recent case, Goldman v. Breitbart News Network, LLC, held that merely embedding a tweet (i.e., linking to a tweet) containing a photograph without the photographer’s permission constitutes infringement.