By: Michael Kernan and Lisa Macklem

The tension between Right of Publicity and Section 230 of the Common Decency Act (CDA) is an example of the sort of issues that are highlighted by our increasingly digital environment. Local, state and federal courts have weighed in without providing a consensus. 

Right of Publicity Claims

Many attorneys have confronted the issue of a client’s name and/or picture (likeness) being taken for advertisements on the internet or social networking websites.  These causes of action are “Right of Publicity” claims. 

In other words, everyone has the right to make money from their name and likeness.  Specifically, these causes of action require appropriation of a Plaintiff’s name or picture for defendant’s commercial advantage, meaning Defendant used the name or likeness to promote a product or service.  These claims are generally considered to be intellectual property claims, which are not subject to Section 230 immunity, but there is a split in authority. 

Six courts have addressed right of publicity

Six courts across the United States have analyzed whether Section 230 of the CDA bars right of publicity claims.  Those six courts are all Federal decisions, and come from the First, Second, Ninth and Eleventh Federal Circuits.  Only the Ninth Circuit has determined that immunity bars right of publicity claims. 

• First Circuit: Universal Communication Systems, Inc. v. Lycos, Inc. (1^st Cir. 2007) 478 F.3d 413, 422-23 (state law claims for trademark dilution are “[c]laims based on intellectual property laws are not subject to Section 230 immunity”); and Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288, 302 (D.N.H. 2008) (Disagreeing with Perfect 10 decision (cited below) and holding that a state claim for infringement of the right of publicity is an intellectual property claim, such that the CDA does not immunize an ISP from liability.).

• Second Circuit:  Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 704 (S.D. N.Y. 2009) (Disagreed with Perfect 10 decision and agreed with Doe v. Friendfinder Network, Inc.); and Gucci America Inc. v. Hall & Associates, 135 F.Supp.2d 409, 411 (S.D. N.Y. 2001) (New York state trademark infringement and unfair competition under New York law were within the intellectual property exception to the immunity).   

• Ninth Circuit: Perfect 10, Inc. v. CCBill LLC, 481 F.3d 751, 768 (9th Cir. 2007), opinion amended on other grounds on denial of reh’g, 488 F.3d 1102 (9th Cir. 2007), cert. denied, 128 S. Ct. 709 (U.S. 2007).

• Eleventh Circuit: Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1323-1324 (11th Cir. 2006) (“there appears to be no dispute that the right of publicity is a type of intellectual property right” and state as well as Federal intellectual property laws are excluded from Section 230’s immunity).

How would the United State Supreme Court rule in light of this split?  The Doe v. Friendfinder Court noted how the United State Supreme Court interprets the word “any” in a statute enacted by Congress.  It explained:

“the modifier “any” in Section 230(e)(2), employed without any limiting language, “amounts to ‘expansive language [that] offers no indication whatever that Congress intended [a] limiting construction.’ ”

540 F. Supp. 2d at 302, quoting the United State Supreme Court in Harrison v. PPG Indus., 446 U.S. 578, 589, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980).  The term “any” law pertaining to intellectual property should mean just that “any” law, which obviously includes state intellectual property laws.

            The Atlantic court’s discussion of the erroneous analysis in Perfect 10 and that case’s inherent contradiction to other Ninth Circuit cases is worth quoting.  The party seeking immunity from the state law intellectual property claim in that case, Playlist, relied on the Perfect 10 case.  The rejected the reliance on that Ninth Circuit opinion stating:

In support of its position, Playlist relies heavily on a 2007 Ninth Circuit case in which the Ninth Circuit held that the term “intellectual property” in the CDA really means “federal intellectual property.” See Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir.2007) (“In the absence of a definition from Congress, we construe the term ‘intellectual property’ to mean ‘federal intellectual property.’ ”).^FN10 …

FN10. This aspect of the Perfect 10 Court’s holding appears to be inconsistent with other Ninth Circuit precedent. See, e.g., SEC v. Gemstar-TV Guide Int’l, Inc., 367 F.3d 1087, 1095 (9th Cir.2004) (“Absent a definition from Congress, we interpret the words using their ordinary, contemporary, and common meanings.”), rev’d en banc on other grounds, 401 F.3d 1031 (9th Cir.2005); Bonnichsen v. United States, 367 F.3d 864, 875 (9th Cir.2004) (“It is axiomatic that, in construing a statute, courts generally give words not defined in a statute their ordinary or natural meaning.”) (internal citation and quotations omitted); United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir.1999) (“Where a statutory term is not defined in the statute, it is appropriate to accord the term its ordinary meaning.”) (internal citation and quotations omitted).

The problem with Playlist’s argument is that it lacks any support in the plain language of the CDA.^FN11 In four different points in Section 230(e), Congress specified whether it intended a subsection to apply to local, state, or federal law. See 47 U.S.C. §§ 230(e)(1) (“any other Federal criminal statute”), (3) (“any State law” and “any State or local law”), (4) (“any similar State law”) (emphasis added in all). It is therefore clear from the statute that if Congress wanted the phrase “any law pertaining to intellectual property” to actually mean “any federal law pertaining to intellectual property, ” it knew how to make that clear, but chose not to. Cf. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) ( “[I]t is a general principle of statutory construction that when Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”); United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (holding that “any other term of imprisonment” includes both state and federal terms of imprisonment*704 because “Congress did not add any language limiting the breadth of that word, and so we must read [the statute] as referring to all ‘terms of imprisonment’ ”).

 FN11. The Ninth Circuit did not engage in a textual analysis in Perfect 10.

Moreover, the modifier “any” in Section 230(e)(2), employed without any limiting language, “amounts to ‘expansive language [that] offers no indication whatever that Congress intended [a] limiting construction.’ ” Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288, 299 (D.N.H.2008) (quoting Harrison v. PPG Indus., 446 U.S. 578, 589, 100 S.Ct. 1889, 64 L.Ed.2d 525 (1980)). This conclusion is bolstered by the fact that, as discussed above, the “surrounding statutory language” supports the conclusion that Congress intended the word “any” to mean any state or federal law pertaining to intellectual property. See ACLU v. Dep’t of Def., 543 F.3d 59, 69 (2d Cir.2008) (holding that word “any” in statute “deserves an expansive application where the surrounding statutory language and other relevant legislative context support it”). 

Because the plain language of the CDA is clear, as “any law” means both state and federal law, the Court need not engage in an analysis of the CDA’s legislative history or purpose. See Lee v. Bankers Trust Co., 166 F.3d 540, 544 (2d Cir.1999) (“It is axiomatic that the plain meaning of a statute controls its interpretation and that judicial review must end at the statute’s unambiguous terms. Legislative history and other tools of interpretation may be relied upon only if the terms of the statute are ambiguous.”) (internal citations omitted).

The question of how the United States Supreme Court would rule remains open.