Mere Monetization Is Not “Commercial Value”: Pleading Standards for Ohio Right-of-Publicity Claims

1. Introduction

In Patricia LaFleur v. Yardi Systems, Inc. (6th Cir. Feb. 27, 2026), Ohio homeowners Patricia LaFleur and Michael Grose, Sr., on behalf of a proposed class of Ohio residents, sued Yardi Systems, Inc., which operates the property-research website PropertyShark. PropertyShark provides property reports (including ownership details, sales history, and related data), allows limited free access, and then encourages payment through per-report fees or subscriptions.

Plaintiffs alleged that PropertyShark unlawfully used their identities in violation of (i) Ohio’s statutory right of publicity, the Ohio Right of Publicity Statute (ORPS), Ohio Revised Code § 2741.01 et seq., and (ii) Ohio common-law appropriation of name or likeness. The central issue on appeal was whether the complaint plausibly alleged that plaintiffs’ names/identities had independent commercial value—a required element under both theories—rather than merely showing that the defendant made money from reports that happened to include their names.

2. Summary of the Opinion

The Sixth Circuit affirmed dismissal with prejudice, holding that plaintiffs failed to plead the commercial-value element. The court emphasized that Ohio law requires more than allegations that a business profits while using a person’s name; plaintiffs must allege facts showing their identity has recognition-based value (even within a niche group) such that the defendant’s use exploits that value.

The court relied heavily on Ohio intermediate appellate authority and on its own prior (unpublished) decision in Hudson v. Datanyze, LLC, rejecting the theory that a defendant’s commercial purpose (selling a service) automatically proves the plaintiff’s persona has commercial value.

3. Analysis

A. Precedents Cited

1) Pleading posture and appellate review

  • Martinez v. Wayne County, 142 F.4th 828, 843 (6th Cir. 2025): supplied the de novo standard for Rule 12(b)(6) review and the requirement to accept well-pleaded facts as true. Its practical role here was to underscore that dismissal turned not on disputed facts, but on the insufficiency of the pleaded allegations to satisfy Ohio’s elements.

2) Ohio’s right of publicity foundations

  • Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454, 458-59 & n.4 (Ohio 1976), rev’d on other grounds, 433 U.S. 562 (1977): recognized Ohio’s common-law right of publicity/appropriation and, critically for this case, tied Ohio’s formulation to Restatement principles. The Sixth Circuit invoked Zacchini to confirm the doctrinal source of the common-law tort and its element structure.
  • ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 930 (6th Cir. 2003): explained Ohio’s reliance on Restatement language when recognizing the right and noted the later migration of right-of-publicity treatment to the Restatement (Third) of Unfair Competition. The panel used ETW Corp. largely to justify continuing to cite Restatement (Second) of Torts § 652C because Ohio courts still do so.

3) The Sixth Circuit’s near-match comparator

  • Hudson v. Datanyze, LLC, No. 23-3998, 2025 WL 80806 (6th Cir. Jan. 13, 2025): although unpublished, it was treated as highly persuasive because it presented “nearly the same case”: an online database displayed individuals’ identifying contact information behind a free-trial/paywall model, and plaintiffs claimed that use “to solicit paid subscriptions” itself showed commercial value. Hudson rejected that theory, reasoning that Ohio cases require allegations that the persona itself is valuable (recognizable/notorious), not merely that the defendant’s product is sold for profit. LaFleur adopts that same separation of elements and reinforces it in a published decision.

4) Ohio cases defining “incidental” use and value

  • Imperial Aviation Servs. LLC v. Ohio State Univ., 252 N.E.3d 185 (Ohio Ct. App. 2024): the court held that use of an aircraft detailer’s likeness in OSU social media posts was “more than incidental” only if it exploited the plaintiff’s likeness value; because it was incidental to an informational purpose, the claim failed. LaFleur uses Imperial Aviation’s Restatement-based framing—“purpose” to take advantage of the “commercial or other values” associated with the likeness—to explain why displaying ordinary homeowners’ names as part of a report is not enough absent allegations that those names have their own draw.
  • Vinci v. Am. Can Co., 591 N.E.2d 793 (Ohio Ct. App. 1990): references to athletes’ names on cups were not actionable when they conveyed “accurate, historical information” rather than endorsement. LaFleur uses Vinci to reinforce the “incidental/informational” boundary and to explain why not every commercial context is a right-of-publicity taking.
  • Bosley v. Wildwett.com, 310 F. Supp. 2d 914 (N.D. Ohio 2004): cited as an example where a likeness was not merely incidental to advertising, illustrating the opposite pole— where identity is used as an attraction and thus supplies the “use or benefit” the tort targets.

5) What “commercial value” can mean for non-celebrities

  • Harvey v. Sys. Effect, LLC, 154 N.E.3d 293, 306 (Ohio Ct. App. 2020), abrogated on other grounds by, Weidman v. Hildebrant, 254 N.E.3d 2 (Ohio 2024): Harvey supplies the key doctrinal clarification that celebrity is unnecessary, but a plaintiff must still allege “significant value, or, indeed, any commercial value,” and that it may be enough to show “notoriety” within an “identifiable group.” LaFleur applies this standard and finds the complaint devoid of such allegations. The Weidman citation signals that Harvey remains good authority on this point despite abrogation “on other grounds.”
  • James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 123 (Ohio Ct. App. 2006): provides a concrete example of commercial value within a limited community—an auto-sales manager’s name had value with established clients. LaFleur uses James to show what plaintiffs could have pleaded (subgroup recognition) but did not.

6) Plaintiffs’ attempted counterweight

  • Wilson v. Ancestry.com, LLC, 653 F. Supp. 3d 441 (S.D. Ohio 2023): plaintiffs cited it for the proposition that soliciting paid subscriptions using a persona can establish commercial value. The Sixth Circuit distinguished Wilson factually: Ancestry allegedly used the plaintiff’s identity in a targeted way (emails sent to people who “may be related” to the plaintiff), making the name itself part of the ad’s appeal. By contrast, PropertyShark’s pay prompts were functionally untargeted and did not derive value from the particular identity shown.

7) Statutory interpretation and federalism principles

  • In re Village Apothecary, Inc., 45 F.4th 940, 948 (6th Cir. 2022): cited for the anti-superfluity canon. LaFleur uses it to reject plaintiffs’ attempt to collapse “commercial value” into “commercial purpose,” which would erase distinct statutory language in the ORPS.
  • Mullaney v. Wilbur, 421 U.S. 684, 691 (1975): invoked for the proposition that state courts are the ultimate expositors of state law, reinforcing the court’s reliance on Ohio appellate decisions requiring independent commercial value.
  • Whitaker v. M.T. Auto, Inc., 855 N.E.2d 825, 829 (Ohio 2006); Einhorn v. Ford Motor Co., 548 N.E.2d 933, 935 (Ohio 1990); Burnell v. Cleveland Mun. Sch. Dist. Bd. of Educ., 114 N.E.3d 1274, 1280 (Ohio Ct. App. 2018) (quoting Euclid v. Sattler, 756 N.E.2d 201, 203 (Ohio Ct. App. 2001)): addressed plaintiffs’ remedial-statute argument. The panel found no basis to deem the ORPS a “remedial law” within Ohio Rev. Code § 1.11 requiring liberal construction, and refused to use that doctrine to dilute the statute’s separate “commercial value” requirement.

8) Certification standards

  • Smith v. Joy Techs., Inc., 828 F.3d 391, 397 (6th Cir. 2016) (quoting Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009)); Antioch Co. Litig. Trust v. Morgan, 633 F. App’x 296, 304 (6th Cir. 2016): provided the governing approach for when to certify questions to a state supreme court. LaFleur denies certification, concluding that “well-established principles” from Ohio courts already answer the relevant question.

B. Legal Reasoning

The opinion’s core move is to enforce a strict separation between two ideas that plaintiffs tried to merge: (1) the defendant’s commercial purpose (selling subscriptions/reports) and (2) the plaintiff’s commercially valuable persona (value in the identity itself).

1) Element-by-element discipline

The court treated “commercial value” as an independent element under both the ORPS and the common-law tort. Statutorily, it pointed to ORPS’s structure: “persona” is defined as specified personal attributes “if any of [them] have commercial value” (Ohio Rev. Code § 2741.01(A)), and liability attaches when that persona is used “for a commercial purpose” (Ohio Rev. Code § 2741.02(A)). Because the legislature used different terms in different provisions, the court refused to interpret them as redundant.

2) Incidental inclusion versus exploitation of identity

Drawing on Restatement § 652C and cases like Imperial Aviation and Vinci, the court explained that right-of-publicity liability targets situations where the defendant’s purpose is to take advantage of the values associated with the persona—i.e., where the identity itself functions as an attractant, endorsement, or value generator. If the name appears “only incidentally” to the informational content or product offering, the commercial-value prong is not satisfied.

3) Why the complaint failed

Plaintiffs’ allegations emphasized that they were ordinary people and that the “value” derived from the compilation of property information—not from recognition attached to “LaFleur” or “Grose” as identities. The court held that, without allegations of (at least) niche notoriety or recognizability to an identifiable group, their names add no independent “use or benefit” to Yardi in the right-of-publicity sense. In the court’s framing, the reports and paywall prompts sell PropertyShark’s data product; plaintiffs’ identities do not plausibly serve as the “star of the show.”

4) Distinguishing Wilson v. Ancestry.com, LLC

The court’s distinction is instructive: where advertising is targeted to people who might care about the specific identity used (e.g., potential relatives), the identity can become part of the solicitation’s appeal and plausibly reflect commercial value. PropertyShark’s model, as pleaded, does not turn on which individual’s name appears; the monetization is tied to access to additional reports, not to the draw of the particular persona.

C. Impact

  • Higher pleading burden for “ordinary-person” data uses: Plaintiffs bringing Ohio right-of-publicity claims against data platforms, aggregators, or paywalled information services in the Sixth Circuit must plead facts showing their identity has independent commercial value—recognition, goodwill, niche fame, or some marketable identity-based draw. Alleging only that a platform charges money for information that includes a name will not suffice.
  • Guardrail for informational products: The decision reinforces an “incidental use” principle that protects businesses whose products communicate accurate information where individuals’ names appear as part of the informational content rather than as endorsements or attention-getters.
  • Sharper line between privacy-type harms and publicity harms: The opinion implicitly signals that discomfort with online dissemination of personal data may sound more naturally in privacy statutes or other consumer protection theories, not in Ohio right of publicity absent identity-based commercial exploitation.
  • Certification disfavored where Ohio intermediate authority is developed: By denying certification, the court indicates that litigants should not expect the Sixth Circuit to certify merely because plaintiffs contest the strength of existing state appellate guidance; “well-established principles” can be enough.

4. Complex Concepts Simplified

  • Right of publicity (Ohio): A claim that someone used your identity to benefit commercially—most classically, using your name or image to sell a product by implying endorsement or by leveraging your fame.
  • “Commercial value” (persona): Not “the defendant made money,” but “your identity itself has market value.” You need not be a celebrity, but you must have some recognition that makes your name/image useful as an attractant within an identifiable group (e.g., customers, community, professional niche).
  • “Commercial purpose” (defendant’s use): The defendant acted to promote or sell something. This is about the defendant’s intent and context, and it does not automatically prove that the plaintiff’s persona was valuable.
  • “Incidental” use: A person’s name/image appears as a minor or unavoidable part of conveying information, rather than as the thing that draws attention or drives sales. Incidental use typically does not meet the tort’s core requirement of exploiting identity-based value.
  • Certification to a state supreme court: A federal court can ask the state’s highest court to answer unsettled state-law questions. Here, the Sixth Circuit declined because Ohio intermediate courts already supplied workable, “well-established” principles.

5. Conclusion

LaFleur v. Yardi Systems cements (in a published Sixth Circuit decision) a key limit on Ohio right-of-publicity litigation: plaintiffs must plead that their identity has commercial value independent of the defendant’s profitable business model. A paywall, subscription solicitation, or monetized report containing a name does not, without more, transform ordinary individuals into commercially valuable personas under Ohio law. The decision strengthens the “incidental/informational” boundary and clarifies that Ohio publicity rights protect against exploitation of identity-based value—not against the mere sale of information that happens to identify people.