Author Archives: Greg Smith

Publication of photo on website not a “continuing violation” in right of publicity case

This post is by Greg Smith, a contributor to Internet Cases. [Bio]

In Blair v. Nevada Landing Partnership, a casino worker sued his former employer, claiming that the casino used a photograph of him in various marketing materials and later, without authorization, on the casino’s website. Although the plaintiff consented to the photograph when it was taken, he complained about its use after he quit his job.

The plaintiff claimed that the casino misappropriated his likeness, and filed an action in Illinois state court, alleging violations of the state’s Right of Publicity Act. The trial court dismissed the action as time-barred, and the plaintiff sought review. The Appellate Court affirmed.

The court began by analyzing when the limitations began to run. Said another way, it looked to determine when the cause of action “accrued.” The photograph was taken in 1994, and about six months later, it appeared on various flyers and brochures, signs and billboards, casino restaurant menus, and calendars and postcards for sale in the casino gift shop. Some time later, the photo appeared on the casino’s website. The plaintiff did not file suit until September 2004.

The court noted that in tort cases, the limitations period begins to run when the plaintiff can first file the lawsuit. Conduct of a defendant falling under the “continuing violation” exception, however, can toll (i.e., delay) the time when the limitations period begins. If there is a continuing violation, the statute of limitations does not begin to run until the tortious acts cease. But the continuing violation exception does not apply if the alleged conduct stems from a “single overt act.” In such cases, the statute begins to run on the date of the single act.

The court declined to apply to continuing violation exception:

We do not believe that the defendants’ act of publishing the plaintiff’s picture in various mediums around the casino falls under the continuing violation exception. Rather, we believe that the use of the plaintiff’s picture in different means such as on the billboard in the casino pavilion, in the casino’s restaurant menu, and on the defendants’ website, constituted a single overt act.

The court cautioned that application of this so-called “first publication rule” is not without its limitations. “[A] republication of the plaintiff’s likeness can constitute a new cause of action if the publication is altered so as to reach a new audience or promote a different product.” Lehman v. Discovery Communications, Inc., 332 F.Supp.2d 534, 539 (E.D.N.Y.2004).

But in this case, even though the casino used the plaintiff’s photograph in different formats over time, it committed only a single overt act for statute of limitations purposes. The uses were all made with the same goal, namely, to attract customers to the casino. Accordingly, a suit filed nearly a decade after the photo was first used was clearly time-barred.

Blair v. Nevada Landing Partnership, — N.E.2d —-, 2006 WL 3594284 (Ill. App. 2 Dist., December 8, 2006)

Government couldn’t track location of cell phone without probable cause

In the case of In the Matter of the Application of the United States of America for an Order Authorizing the Disclosure of Prospective Cell Site Information, the U.S. District Court for the Eastern District of Wisconsin denied the government’s application for disclosure of “cell [s]ite information” pursuant to the Stored Communications Act (SCA), 18 U.S.C. § 2703, and the pen register statute, 42 U.S.C. § 3122.

The government sought cell site information so that it could track the general whereabouts of a criminal suspect. Cell site information is a record of the cell towers a cell phone connects to while the phone is turned on. The government, with cell cite information, can determine the location of a suspect possessing the cell phone. For more information on the technical aspects of cell site information, refer to this Wikipedia article.

The court noted at the outset that the issue in the case was not whether the government could obtain cell site information (it can), but rather what standard the government must meet to obtain such information. As a preface to the analysis of that issue, the court set out the three ways the government generally may access information related to telephone usage.

First, the government can listen in on calls if it shows probable cause and obtains a “super-warrant” under 18 U.S.C. §2518(3). Second, if it seeks records pertaining to a subscriber to an electronic communications service, it must show “specific and articulable facts” showing the records are relevant and material to the investigation. (See the Stored Communications Act at 18 U.S.C. §2703.) Third, the government can proceed under 18 U.S.C. §3122(b)(2) (the “pen register statute”) to obtain the numbers dialed from a phone or the numbers from which calls are made to a target phone.

The government claimed that by seeking cell site information, which included information about the towers used by the suspect’s phone and a map of tower locations, it was not requesting precise tracking information. Because it would only be able to determine the general neighborhood of the suspect, the government argued that the proper standard for obtaining the information should be “likely to be relevant” or “specific and articulable facts,” rather than the higher standard of “probable cause.”

The court rejected the government’s argument, citing to the Communications Assistance for Law Enforcement Act (“CALEA”). CALEA expressly prohibits the government from obtaining “information that may disclose the physical location of the subscriber” except where the probable cause standard has been met. Although the text of CALEA does not indicate how granular the term “physical location” is to be interpreted, the court held that the general geographical location revealed by cell site information clearly is a “physical location.” Accordingly, the “probable cause” standard was appropriate.

The government had not met its burden, so the request was denied.

In the Matter of the Application of the United States of American for an Order Authorizing the Disclosure of Prospective Cell Site Information, 2006 WL 2871743 (E.D. Wis., October 6, 2006).

A review of the Target ADA case: California federal court denies motion to dismiss lawsuit over website accessibility

In the case of National Federation of the Blind v. Target Corporation, the U.S. District Court for the Northern District of California has held that it will allow in part, and dismiss in part, a lawsuit brought against Target by an advocacy group claiming that Target’s website violates the Americans with Disabilities Act (ADA).

Plaintiffs, national and state advocacy groups for the blind, claimed that defendant’s website (Target.com) is inaccessible to the blind, and therefore violates the ADA and similar California state laws. The plaintiffs have sought declaratory, injunctive, and monetary relief. Because Target.com allows a customer to perform functions related to Target stores, the plaintiffs argued, and because the website is not fully accessible to the blind, those customers are denied full and equal access and enjoyment of Target stores.

Target asked the court to dismiss the lawsuit for failure to state a claim, and presented three arguments in support: First, it argued that the ADA only prohibits discrimination in physical spaces. Second, it argued that any off-site discrimination must still deny access to a physical space. Third, Target argued that the website provides auxiliary aid in conformity with the ADA, and therefore no violation exists.

The court looked first to Title III of the ADA, which prevents discrimination against disabled persons in places of public accommodation. Title III states in part that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, [and] services … of any place of public accommodation…” 42 U.S.C. 12182(a). In rejecting the defendant’s first argument, the court emphasizes that the ADA applies to services of a place of public accommodation, and that the statute’s application is not limited to services offered in a place of public accommodation. This clear language indicates that the ADA applies to more than discrimination in physical spaces only.

The court next addressed defendant’s second argument, that off-site discrimination must deny access to a physical space to be considered an ADA violation. The court found this argument unpersuasive because the ADA prohibits non-physical barriers that keep a disabled person from enjoying the defendant’s goods and services. The court noted that because Target.com is integrated heavily with defendant’s stores, and because the website offers services and goods available in defendant’s stores, the website operates as a gateway to the store. Because the website is a gateway to a place of public accommodation, and because blind people cannot enjoy the services of the website, defendant may be violating the ADA.

The court then addressed defendant’s third assertion, that a satisfactory auxiliary aid is being provided. Defendant claims that all goods and services available on the website are also available on the telephone, and this satisfies the ADA’s auxiliary aid exception. The court rejected this argument by noting that this exception is an affirmative defense. Because the lawsuit was at the pre-trial motion phase, this affirmative defense was pleaded prematurely.

The court finished its discussion of defendant’s motion to dismiss by agreeing that the plaintiff failed to state a claim under the ADA inasmuch as the goods and services on Target.com are unconnected to Target’s brick-and-mortar stores. In a footnote, however, the court commented on the future of plaintiff’s ADA claim: “The website is a means to gain access to the store and it is ironic that Target, through its merchandising efforts on the one hand, seeks to reach greater numbers of customers and enlarge its customer-base, while on the other hand it seeks to escape the requirements of the ADA.”

National Federation of the Blind v. Target Corporation, 2006 WL 2578282 (N.D. Cal., September 6, 2006).

Michigan federal court exercises personal jurisdiction over out-of-state eBay seller

In the case of Dedvukaj v. Maloney, the U.S. District Court for the Eastern District of Michigan has held that it can exercise personal jurisdiction over a New York eBay seller accused of breach of contract, fraud and misrepresentation in connection with an auction that went sour.

Plaintiff Maloney, a Michigan resident, won two eBay auctions for paintings from defendant Dedvukaj, a seller based in Syracuse, New York. The auctions advertised the paintings as being originals, and the defendant apparently verified the authenticity of the paintings over the phone. After the auctions closed, the plaintiff sought to collect the art works, but the defendant never shipped them. (There appears to be a dispute over whether the defendant was selling original paintings or copies.) The plaintiff refused a refund and demanded either the original paintings or their fair market value.

The plaintiff filed a lawsuit in his home state of Michigan alleging breach of contract, fraud and misrepresentation. The defendant moved to dismiss for lack of personal jurisdiction, or alternatively to transfer venue to the Northern District of New York.

The defendant argued that the Michigan court did not have personal jurisdiction over him because he sold items through eBay, and bids are “random” and “fortuitous,” as sellers cannot control who bids on a given item. The defendant also argued that because he did not target or specifically market his auctions to Michigan residents, his contacts were too attenuated for the court to find personal jurisdiction.

The court first looked to whether the Michigan long arm statute would support the exercise of personal jurisdiction. It held that by communicating with the Michigan plaintiff by telephone and e-mail, accepting the winning bids, and confirming shipping charges to Michigan, the defendant transacted business in Michigan. Because the dispute arose out of that business transaction, the defendant satisfied the requirements of the long arm statute.

The court next looked to whether the exercise of personal jurisdiction would pass muster under a constitutional due process analysis. It discussed a number of analogous cases, eventually holding that the defendant’s auction clearly supported personal jurisdiction in Michigan through purposeful availment.

For example, in First Tennessee Nat. Corp. v. Horizon Nat. Bank a court found personal jurisdiction existed where the defendant’s website stated the bank could lend in “[all] 50 States.” 225 F.Supp.2d 816, 820-21. In another case, a court found purposeful availment where a website stated it would do business “for any parent in any state,” specifically including Michigan. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 891 (2002).

Using these cases as precedent, the court noted that the defendant’s auction listing stated he would ship anywhere in the United States. Additionally, defendant listed a toll-free telephone number and e-mail address in the auction. In part because the defendant did not limit buyers from Michigan from participating in his auction, and because he displayed a willingness to communicate with buyers from any state, the court found that the defendant had purposefully availed himself to the benefits of conducting business in Michigan.

Some other factors the court considered in finding purposeful availment: the number of e-mails and phone calls between the plaintiff and the defendant, the intentional and misleading nature of the communications between the parties, and the defendant’s acceptance of payment from Michigan.

Accordingly, the court denied the defendant’s motion to dismiss for lack of personal jurisdiction, and also denied the alternate motion for transfer of venue. It presented an essential fact underlying the analysis of personal jurisdiction arising from web-based transactions: “Sellers cannot expect to avail themselves of the benefits of the internet-created world market that they purposefully exploit and profit from without accepting the concomitant legal responsibilities that such an expanded market may bring with it.”

Dedvukaj v. Maloney, 2006 WL 2520347 (E.D. Mich., August 31, 2006).