Green v. Datanyze, LLC

               UNITED STATES DISTRICT COURT                              
           FOR THE NORTHERN DISTRICT OF ILLINOIS                         
                      EASTERN DIVISION                                   


NOEL GREEN and RYAN                                                      
WEATHERBY,                                                               
          Plaintiffs                 No. 23 CV 1605                      

     v.                              Judge Jeremy C. Daniel              

DATANYZE, LLC,                                                           
          Defendant                                                      


                            ORDER                                        
Defendant Datanyze, LLC’s motion to dismiss, (R. 15), is denied. The Defendant will 
have 21 days to answer the complaint. Status hearing set for February 14, 2024, at 
9:30 a.m.                                                                 

                         STATEMENT                                       
According  to  the  complaint,  defendant  Datanyze,  LLC  (“Datanyze”)  operates  an 
online platform that allows sales and marketing professionals to search and view 
information  about  other  members  of  their  industry,  including  their  contact 
information and work history. (R. 1-1 at 6–18 (“Compl.”) ¶ 3). The platform operates 
by using a “credit” system. (Id. ¶ 22). Each month, subscribers receive credits that 
they can use to access profiles via Datanyze’s website and a browser extension. (Id.) 
One credit allows a user to view one profile. (Id.) A paid subscription costs either $29 
or $55 per month for either 80 or 160 credits, respectively. (Id. ¶ 23.) Datanyze also 
offers a free trial period to prospective users. (Id. ¶ 21–22.) During the first 90 days 
after  creating  an  account,  prospective  customers  receive  10  credits  to  view  any 
profiles on the platform. (Id. ¶ 22.) After the trial period ends, or all of the credits 
have been used, users must enter payment information to view additional profiles. 
(Id.)                                                                     

Plaintiffs  Noel  Green  and  Ryan  Weatherby  are  individuals  whose  personal 
information appeared on Datanyze’s platform. See generally id. The Plaintiffs filed 
this suit in state court under the Illinois Right of Publicity Act (the “IRPA”), 765 ILCS 
§ 1075/1 et seq., alleging that Datanyze used their identity for commercial purposes 
without their consent. Datanyze removed the case to federal court and then moved to 
dismiss  pursuant  to  Federal  Rule  of  Civil  Procedure  12(b)(6),  arguing  that  the 
Plaintiffs have failed to state a claim on which relief may be granted. (R. 1; R.15.) 
A motion to dismiss under Rule 12(b)(6) “tests the sufficiency of the complaint, not 
the merits of the case.” McReynolds v. Merrill Lynch & Co., 

694 F.3d 873, 878

 (7th 
Cir. 2012). Plaintiffs need not provide detailed factual allegations to survive a motion 
to dismiss, but they must provide enough factual support to raise its right to relief 
above a speculative level. Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 555

 (2007). A 
claim must be facially plausible, meaning that the pleadings must “allow . . . the 
court to draw the reasonable inference that the defendant is liable for the misconduct 
alleged.” Ashcroft v. Iqbal, 

556 U.S. 662, 678

 (2009). In reviewing a Rule 12(b)(6) 
motion, the Court accepts all well-pleaded factual allegations as true and draws all 
reasonable inferences in the plaintiff’s favor. Huston v. Hearst Commc’ns, Inc., 

53 F.4th 1097, 1099

 (7th Cir. 2022).                                         

The IRPA prohibits the “use [of] an individual’s identity for commercial purposes 
during the individual’s lifetime without having obtained previous written consent.” 
765 ILCS 1075/30. To state a claim under this provision, the Plaintiffs must plead (1) 
the appropriation of their identity, (2) without consent, (3) for Datanyze’s commercial 
benefit. Dancel v. Groupon, Inc., 

949 F.3d 999, 1008

 (7th Cir. 2019).     

Datanyze does not dispute that the Plaintiffs have alleged the first two elements of 
an IRPA claim. Instead, it argues that it did not use the Plaintiffs’ identities for a 
commercial purpose. See generally R. 16. The 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.           
765 ILCS 1075/5. In other words, the IRPA “contemplates a use or holding out of an 
individual’s identity with the aim of effectuating a sale.” Huston, 

53 F.4th at 1101

.  

To establish the commercial purpose element, Plaintiffs allege that Datanyze allowed 
users to access their profiles during the initial trial period in order to “promote” 
“advertise,” or “offer for sale” its paid subscription product. At the pleading stage, it 
is plausible that granting users access to Plaintiffs’ identity as part of a free trial 
constitutes a promotion or enticement to purchase a paid subscription. See Hoffower 
v.  Seamless  Contacts,  Inc.,  

2022 WL 17128949

,  at  *2  (N.D.  Ill.  Nov.  22,  2022) 
(allegations  that  “prospective  subscribers  were  able  to  see  [the  plaintiff’s] 
information—or that of others—before purchasing a subscription, and that [the] 
information was displayed as part of a come-on to get them to buy in” were sufficient 
to state a claim under the IRPA); Lukis v. Whitepages, Inc., 

454 F. Supp. 3d 746

, 760 
(N.D. Ill. 2020). It is reasonable to infer that Datanyze offered the free trial as an 
inducement for users to become paying customers.                          
Datanyze raises several arguments in response. First, it argues that applying the 
IRPA in this context would contradict the statute’s legislative history, which limits 
its scope to endorsements. (R. 16 at 5–6.) But when considering questions of statutory 
interpretation,  the  Court  must  begin  with  the  plain  language.  United  States  v. 
Berkos, 

543 F.3d 392, 396

 (7th Cir. 2008). On its face, the IRPA is not limited to 
endorsements. See, e.g., Dobrowolski v. Intelius, Inc., 

2017 WL 3720170

 (N.D. Ill. Aug. 
29, 2017) (“IRPA does not require that the commercial purpose be an apparent 
endorsement of the defendant’s product or service.”); accord Bonilla v. Ancestry.com 
Operations Inc., 

574 F. Supp. 3d 582

, 594 (N.D. Ill. 2021). And a defendant’s use of a 
plaintiff’s identity in connection with a free subscription to induce users to purchase 
a paid subscription plausibly constitutes “advertising,” “promotion,” or “offering for 
sale” under the statute. Because the plain language of the IRPA does not restrict its 
application to false endorsements, Datazyne’s reliance on the statute’s legislative 
history is unpersuasive. Directv, Inc. v. Barczewski, 

604 F.3d 1004, 1008

 (7th Cir. 
2010).                                                                    

Datanyze also argues that the Plaintiffs are required, and have failed, to allege that 
the free trial and paid subscription are separate products. R. 16 at 7–12. Because the 
free trial grants access to the same content as a paid subscription, Datanyze argues 
that the two products are indistinguishable, and that one cannot constitute the 
advertisement or promotion of the other. Here, Datanyze is on slightly better footing. 
Trial courts in this Circuit have reached “conflicting outcomes” as to whether plaintiff 
must allege separate products to state a claim under the IRPA. Huston, 

53 F.4th at 1101

. One line of cases has upheld a separate product requirement, reasoning that a 
company does not violate the IRPA by offering previews of the same product that it 
sells. Dobrowolski v. Intelius, Inc., 

2018 WL 11185289

 (N.D. Ill. May 21, 2018); 
Thompson v. Getty Images (US), Inc., No. 13 C 1063, 

2013 WL 3321612

, at *2 (N.D. 
Ill. July 1, 2013). A more recent line of cases has declined to apply a “separate 
product” requirement and held that the use of a plaintiff’s identity in connection with 
a free preview to advertise or promote a monthly subscription service is a “textbook 
example” of an IRPA violation. See Lukis v. Whitepages, Inc., 

454 F. Supp. 3d 746

, 
760 (N.D. Ill. 2020); accord Mackey v. PeopleConnect, Inc., 

2023 WL 2561621

, at *10 
(N.D. Ill. Mar. 17, 2023), appeal filed, No. 23-1617 (7th Cir. Mar. 30, 2023); Hoffower, 

2022 WL 17128949

, at *2; Siegel v. Zoominfo Tech., LLC, 

2021 WL 4306148

, at *3 
(Sept. 22, 2021); Gaul v. Truth Now, LLC, 

2022 WL 3647257

, at *7 (C.D. Ill. Aug. 24, 
2022); Gaul v. CheckPeople, LLC, 

2022 WL 3212067

, at *3-4 (C.D. Ill. Aug. 9, 2022); 
Bonilla, 574 F. Supp. 3d at 595; Krause v. RocketReach, LLC, 

561 F. Supp. 3d 778

, 
782-83 (N.D. Ill. 2021).                                                  

Acknowledging the apparent split in district court decisions, the Court sides with the 
majority and finds that the Plaintiffs are not required to allege “separate products” 
at the pleading stage. The plain text of the IRPA does not support imposing such a 
requirement. See Lukis v. Whitepages, Inc., 

542 F. Supp. 3d 831

, 838 (N.D. Ill. 2020) 
(quoting DeSmet ex rel. Estate of Hays v. Cnty. of Rock Island, 

848 N.E.2d 1030, 1039

 
(Ill. 2006)) (“Where an enactment is clear and unambiguous,” a court is “not at liberty 
to depart from the plain language and meaning of the statute by reading into it 
exceptions, limitations[,] or conditions that the legislature did not express.”).  

Even if the IRPA can be read to impose a separate product requirement, the Plaintiffs’ 
have plausibly alleged that the free trial and paid subscription are separate products. 
The  free  trial offers  users  limited  access  to  the  Datanyze  platform  by granting 
prospective users only 10 credits for the initial period. In other words, it allows users 
to access only a fraction of the content that they would be able to access with a paid 
subscription. The use of a subscription model—and the difference in the amount of 
content  that  may  be  accessed  during  the  free  trial  as  opposed  to  the  paid 
subscription—distinguishes  this  case  from  Dobrowolski  and Thompson.  In  those 
cases,  the  plaintiffs  alleged  that  their  identities  were  being  sold  as  standalone 
products rather than as part of a subscription that included a range of other content. 

2018 WL 11185289

, at *3; 

2013 WL 3321612

, at *2. Without viewing images of the 
plaintiffs’ identifying information prior to buying, customers could not verify the 
product they were purchasing. See Dobrowolski, 

2018 WL 11185289

 (holding that the 
use of plaintiff’s name on a marketing page to identify a report about an individual 
did not constitute commercial use); Thompson, 

2013 WL 3321612

 (“The Court is 
unpersuaded that showing a buyer a photograph of a person that she is considering 
whether to buy qualifies as a ‘commercial purpose’ as the IPRA uses that term.”). 
Here, however, the Plaintiffs allege that their individual profiles cannot be purchased 
as standalone products on the Datanyze platform. (Compl. ¶ 22.) It is not necessary 
for a subscriber to view the information contained on the Plaintiffs’ individual profiles 
to identify what they are purchasing when they subscribe to the platform. The 
Plaintiffs’ profiles are part of—and not coextensive with—the content that can be 
accessed with a Datanyze subscription.                                    

Datanyze also argues that, because the Plaintiffs do not dispute that Datanyze is 
allowed to sell their information, accepting the Plaintiffs’ allegations leads to the 
nonsensical conclusion that Datanyze cannot give away for free what it is allowed to 
sell. R. 16 at 2. At this stage, Datanyze’s attempt to characterize its free trial offer as 
a handout rather than a promotion is unavailing. Presumably the company expects 
to reap some benefit from offering free trials to prospective users. And the Court must 
draw all factual inferences in the Plaintiffs’ favor. Huston, 

53 F.4th at 1099

. 

Datanyze  also  directs  the  Court  to  a  recent  federal  district  court  decision  that 
dismissed Ohio right of publicity claims based on the same conduct. (R. 27 (citing 
Hudson v. Datanyze, LLC, No. 23 C 466 (N.D. Ohio Nov. 17, 2023).) Hudson is not 
binding on this Court, however, and, despite its factual similarities, the Court is not 
persuaded  the  that  its  reasoning  supports  dismissal.  In  Hudson,  the  plaintiffs 
brought claims under the Ohio Right of Publicity Statute (“ORPS”), Ohio Rev. Code § 
2741.01, et seq. Unlike the IRPA, the ORPS expressly limits right of publicity claims 
to aspects of an individual’s identity that “have commercial value.” Compare 765 
ILCS  1075/5,  with Ohio Rev.  Code §  2741.01. To  state a claim under the  ORPS,  a 
plaintiff must  plausibly  allege  that  the  defendant’s  use  of their  identity  was  not 
incidental;  in  other  words,  that  “their  name  or  likeness  has  value.”  See  Roe  v. 
Amazon.com,  

714 F. App’x 565, 568

 (6th Cir. 2017); see also 

id.

  (citing Vinci v. Am. 
Can Co., 

69 Ohio App. 3d 727, 729

 (1990)). It was the plaintiffs’ failure to allege non- 
incidental use that doomed their ORPS claims in Hudson. See No. 23 C 466, ECF No. 
17 at 8-9. This reasoning is not applicable here, however. As the Plaintiffs point out, 
the IRPA does not contain an incidental-use exception, nor has the Illinois Supreme 
Court adopted one. (See R. 23-1 (citing Mackey, 

2023 WL 2561621

, at *10).) While the 
district court’s decision in Hudson may have been correct as a matter of Ohio law, it 
has no bearing on the Illinois claims at issue in this case. 
Finally, Datanyze argues that application of IRPA in this context would violate the 
First Amendment. However,  determining whether the IRPA infringes on protected 
speech is a fact-intensive inquiry that “more appropriately represents an affirmative 
defense.”  Siegel,  LLC,  

2021 WL 4306148

,  at  *4;  accord  Dobrowolski,  

2017 WL 3720170

, at *9; Daniels v. FanDuel, Inc., 

2017 WL 4340329

, at *11 (S.D. Ind. 2017). 
“(A] plaintiff's complaint need not anticipate or refute potential affirmative defenses,” 
and “[r]Jarely will the face of the complaint so clearly prove the opponent’s affirmative 
defense that immediate dismissal, prior to the filing of an answer, will be proper.” 
Luna  Vanegas v.  Signet Builders,  Inc.,  

46 F.4th 636, 640

  (7th Cir.  2022).  Because 
Datanyze’s First Amendment argument raises issues of fact and the Plaintiffs have 
not pleaded themselves out of court, the Court declines to consider Datanyze’s First 
Amendment defense at this juncture. 
Accordingly, because the Plaintiffs have plausibly alleged that Datanyze used their 
identity to promote its paid subscription product without their consent, Datanyze’s 
motion to dismiss the Plaintiffs’ IRPA claim is denied. 

Date: 1/16/2024                                 {   Ss 
                                                JEREMY C. DANIEL 
                                                United States District Judge