United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L.ELLIS United States District Judge
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. 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 .
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.
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 them to
view and store their photos. Your photos are always private
and were not shared.” Doc. 17-1 ¶ 13.
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.
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.
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. 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.
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. 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