Court rejects right-of-publicity claim against Avvo

A federal district court found that Avvo did not run afoul of the Illinois Right of Publicity Act by creating attorney profile pages without plaintiffs' consent and using them to sell advertising to competing attorneys.

Plaintiff John Vrdolyak relied heavily on the seventh circuit's opinion in Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 515 (7th Cir. 2014), which set forth a multi-prong test to help determine whether speech is commercial or noncommercial. Vrdolyak argued that, like the advertisement in Jordan, Avvo's advertising is inextricably linked to its attorney profiles, meaning the entire directory is commercial speech and thus protected at a lower level under the First Amendment than noncommercial speech.

The United States District Court for the Northern District of Illinois court disagreed. It found that because not every profile contains an advertisement, and because none of the advertisements used the plaintiff's name, "the court views what defendant does as more akin to the yellow pages directory, which receives First Amendment protection, than the advertisement that Jewel placed in Jordan."

Continuing with the Jordan analogy, the court found that Avvo's actions were more like Sports Illustrated, which published Jewel's ad. "Defendant publishes non-commercial information and sells and places advertisements within that information." Just like ads in a magazine do not convert the whole magazine into an ad, the court held that "nor do the Sponsored Listings turn the entire attorney directory into commercial speech. Consequently, the court concludes that defendant's publications are fully protected by the First Amendment," and thus the Right of Publicity Act does not prohibit the complained-of behavior by Avvo.

Read more about the case in the November Illinois Bar Journal.