Plaintiffs contended that they are, Facebook denied in this litigation that they are ads. 23  Whether Facebook’s conduct violated Cal. Civil Code § 3344 and California's Unfair Competition Law (Cal. Bus. & Prof. Code § 17200, et seq.).

T3Media cites cases that are not to the contrary. The UCL claim is not duplicative of Plaintiffs’ § 3344 claims because it captures the unlawful, unfair, and fraudulent dimension of T3Media’s conduct, as a misleading violation of established restrictions on the commercial use of student-athlete names and likenesses. Thus, Conder v. Home Sav. of Am., 680 F. Supp. 2d 1168, 1176 (C.D. Cal. 2010) does not apply. Cher v. Forum Int’l Ltd., 692 F.2d 634 (9th Cir. 1982), held that promotional language associated with a journalistic interview received First Amendment protection because the underlying article received First Amendment protection—Cher is distinguishable because here, the unlawful sale of Plaintiffs’ likenesses receives no such protection, and even if it did, T3Media waived that protection.

Section 3344 states explicitly that newsworthy speech is not the proper subject of a misappropriation claim: “a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign shall not constitute a use for which consent is required under subdivision (a).” Cal. Civ. Code § 3344(d). As discussed above, supra § II, the Complaint alleges that a Sponsored Story may be generated only if a User engages in some action—e.g., Liking an item on Facebook, checking in at a business, Posting information about a product, or using an application or game—that he or she has chosen to share with Friends and that would otherwise appear on the User’s profile page and Friends’ News Feeds.

4 EA's alleged inclusion of Plaintiffs likeness meets the statutory definition of "in 5 connection with. . . public affairs." Cal. Civil Code § 3344(d). Cours repeatedly have held that 6 expressive works related to a variety of sports are "in connection with... public affairs," and in 7 circumstances less compellng than here.

) As the Court noted previously, nothing in the common law or section 3344 suggests that a Plaintiff states a claim without plausible allegations of harm from the misappropriation. (Dismissal Order at 8-9.) And, as discussed below (infra § IV(C)(1)), this is doubly true under the UCL, which requires both injury in fact and a “loss of money or property.”

¶ 26) Facebook cannot be held liable for republishing this newsworthy speech.8 Section 3344(d) exempts from liability “use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign.” Cal. Civ. Code § 3344(d). The term “news” under Section 3344 is broadly construed, and “is not limited to ‘news’ in the narrow sense of reports of current events.

D, Plaintiffs‘ First Set of RFPs, RFP Nos. 1, 7; Ex. F, Plaintiffs‘ Rule 30(b)(6) Notice of Deposition for July 11, 2011 (―PMK REGARDING the legality of sponsored stories in light of California Civil Code 3344‖)), and legal conclusions (Ex. C, Plaintiffs‘ First Set Case 3:11-cv-01726-RS Document 26 Filed 06/21/11 Page 22 of 26 COOLEY LLP ATTO RN EY S AT LA W SA N FRA N CI S CO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17.

As described in further detail below, here, Class Counsel faced many risks, including, but not limited to, risk at class certification, risks relating to preemption and risk of trial. As noted above, Facebook argued in its Motion to Dismiss that the claims were preempted under the Communications Decency Act, 47 U.S.C. § 230 (“CDA”), and that the “newsworthiness” exemption of Cal. Civil Code section 3344(d). Facebook could raise both of these defenses again on appeal.

Plaintiffs do not state a claim, therefore, unless they allege the former— i.e., facts demonstrating that Facebook uses their names and likenesses for its “advantage, commercially or otherwise.” See Newcombe, 157 F.3d at 692; Cal. Civ. Code § 3344(a). The Ninth Circuit has defined this element as it relates to those who publish advertisements.

Case 2:09-cv-05735-SVW-CW Document 18 Filed 09/25/09 Page 23 of 27 Page ID #:185 FE N W IC K & W E ST L L P A T T O R N E Y S A T L A W SA N F R A N C IS C O 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CORBIS’ MEMO. OF P’S & A’S ISO MOTION TO DISMISS CASE NO. 09-CV-05735-SVW (CWx) 19 pictures of individuals in editorial works, given First Amendment protections5 and a specific exemption under California Civil Code Section 3344(d), it is not clear from where they could obtain those photographs. Under the parameters of Plaintiffs’ claims, prospective licensees could not view potential photographs on a website or a catalog.