Illinois Court Finds Lawyer Website Did Not Violate Attorney’s Right of Publicity
BY JERRY GLOVER
SEPTEMBER 15, 2016
Avvo.com is a website devoted to promoting legal services and providing a directory of lawyers. A profile page for each listed lawyer is created and contains information about that attorney gathered from public records. The attorney’s name, education, address, phone number and practice area are included in the profile page. The attorney is given a rating by Avvo which is typically based on number of years in practice. Avvo creates these profiles free of charge but does not ask attorneys if they want to be profiled. Consumers are not charged for using the website.
Avvo also sells advertising to attorneys whose ads are placed on the profile pages of other Avvo listed attorneys. There is an “out,” however: attorneys profiled on the site can join “Avvo Pro” which guarantees that no lawyer advertising will appear on their profile page.
All of this explanation is necessary to understand a lawsuit that was recently decided by a federal district court in the Northern District of Illinois in which an attorney profiled on Avvo claimed that the website was violating his right of publicity under the Illinois Right of Publicity Act (765 LCDS 1075/1 et seq.) by placing ads from competing attorneys and for placing ads for Avvo’s own website services on his profile page. He argued that this Avvo advertising on his profile page turned his page into an advertisement to which he did not consent. Vrdolyak v. Avvo.Inc., No. 2016 WL 4765714 (N.D. Ill. September 12, 2016).
The Illinois statute allows an individual to sue for violation of his/her right of publicity if someone uses the individual’s name, likeness, element of their persona, etc. in a commercial setting without the individual’s consent. There are so-called “First Amendment” exceptions to this law set out in the statute including the use of a person’s name, likeness, etc. in news and public affairs materials, films, stage plays and other entertainment/information works.
Avvo argued that it’s placement of ads on profile pages did not turn the entire page into an advertisement and that its pages were non-commercial speech protected by the First Amendment. The court noted that commercial speech usually requires the proposal of a commercial transaction but added that other communications may constitute commercial speech even thought they contain discussions of public issues. The district court stated there were three elements to consider in determining whether speech was commercial or non-commercial: (a) the speech is an advertisement; (b) the speech refers to a specific product; and (c) the speaker has an economic motivation for the speech. The court noted that it did not have to find all three elements present to determine the issue.
Avvo compared its attorney profile pages to yellow pages listings: each service provides listings of people/businesses on the same page that contains advertising for businesses some of which may compete with individuals/businesses listed on that very same page. Avvo noted correctly that these yellow page listings are not commercial speech.
The plaintiff argues that this case was like one decided recently by the U.S. Court of Appeals for the Seventh Circuit (which governs Illinois and several other states), Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014). In Jordan, Sports Illustrated magazine published a special tribute issue to Michael Jordan and his basketball career. Jewel created and placed an ad in the magazine congratulating Jordan on his career. The ad also used several Jewel slogans that the grocery chain often used in advertising. Jordan sued claiming a violation of his right of publicity under the Illinois statute. The appellate court found in Jordan’s favor holding that the ad’s commercial nature was apparent even if it contained non-commercial elements (the congrats to Jordan). The plaintiff in this case claimed that placing an attorney ad on his profile page turned the entire page into an ad.
The court concluded that the profile pages were not advertisements since the ad on an attorney’s profile page did not use the attorney’s name and not every attorney profile page contained an ad. To hold otherwise, the court noted, would lead to a finding of commercial speech for publishers who publish truthful newsworthy information about individuals just because it generated revenue from ads paid for by others placed in the same field.