A District Court judge in Ohio has granted a business lead generator’s motion to dismiss a class-action lawsuit after it was sued for violating state law in Ohio for using the “personas” of people in the free trial version of its software to promote its paid product without their consent.
The Background: The names and contact information for the plaintiffs appeared in the defendant’s database of sales and marketing professionals and is available either for a 90-day free trial or a paid subscription. The defendant uses a Google Chrome extension to view information of individuals with profiles on LinkedIn. The crux of the plaintiffs’ suit is that there is no difference between the contents of the database that can be accessed during the free trial and the contents that are available for a paid subscription.
- The Ohio Right of Publicity Statute prohibits the use of an individual’s persona for a commercial purpose without the individual’s written consent.
- The plaintiffs claim that the intention of the free trial is to induce users to become paid subscribers, making the free trial a commercial purpose.
The Defense: The defendant argued that their use of the plaintiffs’ personas was incidental, which would make it inactionable in an appropriation claim.
- Ultimately, ruled Judge James R. Knepp II of the District Court for the Northern District of Ohio, the fact that the plaintiffs’ personas were not used to indicate they supported or promoted the product made their usage incidental.
- The defendant also argued that it was protected under the First Amendment, but Judge Knepp did not have to rule on that claim, having already ruled that the incidental usage was sufficient grounds to dismiss the complaint.