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Pratt v. Everalbum, Inc.

United States District Court, N.D. Illinois, Eastern Division

September 20, 2017

DANNY PRATT, Plaintiff,
EVERALBUM, INC., a Delaware corporation Defendant.


          SARA L.ELLIS United States District Judge

         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].


         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 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.


         “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. 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.


         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 ...

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