Cohen v. Facebook, Inc.
798 F. Supp. 2d 1090
| N.D. Cal. | 2011Background
- This putative class action challenges Facebook's Friend Finder feature, which uses a user's email contacts to identify Facebook friends not already in their list and to invite non-members to join Facebook.
- Facebook periodically displays home-page notices showing the names and profile pictures of users who allegedly used Friend Finder to encourage others to try the service.
- Plaintiffs claim Facebook misappropriated their names and likenesses for promotional use without consent, including purported endorsements of Friend Finder.
- Plaintiffs assert violations under common law misappropriation and California Civil Code § 3344, arguing a commercial use and implied endorsement without consent.
- Facebook moves to dismiss arguing (a) terms and policies authorize the conduct and (b) plaintiffs lack cognizable injury, with the court granting dismissal with leave to amend.
- The court applies Rule 12(b)(6) standards, requiring plausibly pleaded facts; it discusses the limitations of consent, injury, and standing under various theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Consent to use names/pictures | No clear consent for using names/photos in promotions. | Terms authorize use of IP content and related information. | Consent not shown; claims insufficient to plead misappropriation. |
| Use for Facebook's advantage | Facebook used plaintiffs' identities to promote Friend Finder for its own gain. | Advantage element not clearly satisfied; need direct benefit. | Allegations plausibly allege advantage; not yet fatal to misappropriation claim. |
| Injury required for misappropriation | Injury-in-fact from misappropriation is pleaded. | Injury is vague or conclusory and not tied to cognizable harm. | Injury not adequately pleaded; misappropriation claims dismissed with leave to amend. |
| Lanham Act standing | Plaintiffs have a protectable interest in their identities triggering liability under § 1125(a). | Plaintiffs lack the requisite commercial interest or standing. | Lanham Act claim dismissed for lack of standing; leave to amend. |
Key Cases Cited
- Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998) (misappropriation elements and 'advantage' consideration)
- Eastwood v. Superior Court, 149 Cal. App. 3d 409 (Cal. App. 3d 1983) (privacy-related torts, including appropriation of name or likeness)
- Slivinsky v. Watkins-Johnson Co., 221 Cal. App. 3d 799 (Cal. App. 1990) (injury as essential element in misappropriation claim)
- Miller v. Collectors Universe, Inc., 159 Cal. App. 4th 988 (Cal. App. 2008) (statutory damages under Civ. Code § 3344 require pleaded injury)
- Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) (Lanham Act standing requires a commercial interest akin to trademark)
- Kwikset Corp. v. Superior Court, 51 Cal.4th 310 (Cal. 2011) (standing under §17200 requires loss of money or property)
- Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (Supreme Court 2007) (pleading standard for falsity and elements on a motion to dismiss)
- Twombly, 550 U.S. 544 (Supreme Court 2007) (plausibility standard; avoid mere conclusory statements)
- Iqbal v. Ashcroft, 556 U.S. 662 (Supreme Court 2009) (heightened pleading standard; threadbare recitations insufficient)
- Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir. 1998) (incorporation by reference and judicial notice in 12(b)(6) context)
- Cooper v. Pickett, 137 F.3d 616 (9th Cir. 1997) (standing and pleading standards in fraud-like claims)