by Michael Kernan

Facebook has recently faced two Right of Publicity cases.

The first case, filed in New York, is a class action based upon the alleged violation of minor-users’ Right of Publicity.  The second case, filed in California, alleges violation of adult-users’ Right of Publicity.  The District Court recently granted Facebook’s Motion to Dismiss (but granted the right to amend) in the California case.  See Robyn Cohen et al., v. Facebook Inc., Case No. 10-CV-05282-RS.  The following is the ruling by the Court:

“Facebook moves to dismiss, making two primary arguments. First, Facebook contends that it is perfectly within its rights under the agreements that govern use of its site to engage in the conduct alleged. Second, Facebook argues that plaintiffs have not alleged any cognizable injury from the alleged practices, because their names and profile pictures were merely displayed to their Facebook “friends, ” who already had access to them, and because they have no commercial interests in their names and likenesses. While Facebook’s position that it has the unequivocal legal right to use the plaintiffs’ names and profile pictures in the manner alleged is not determinative (at least at the pleading stage), it fares better with its argument that plaintiffs have not adequately alleged facts showing injury. Accordingly, the motion to dismiss will be granted, with leave to amend.

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Facebook relies primarily on a section of the Statement of Rights and Responsibilities entitled “Sharing Your Content and Information, ” that states:

For content that is covered by intellectual property rights, like photos and        videos (‘IP content’), you specifically give us the following permission,     subject to your privacy and application settings: you grant us a non-    exclusive, transferable, sub-licensable, royalty-free, worldwide license to use          any IP content that you post on or in connection with Facebook (“IP   License”).

Secondarily, Facebook points to provisions of the Privacy Policy stating, “your name and profile picture do not have privacy settings. If you are uncomfortable with sharing your profile picture, you should delete it (or not add one)” and “We use the information we collect to provide our services and features to you . . . .”

Facebook contends that the quoted provision of the Statement of Rights and Responsibilities, standing alone, “unambiguously gives Facebook the right to use any photos, including Plaintiffs’ profile photos, in any manner on Facebook, subject to Users’ privacy and application settings.” This interpretation of the “unambiguous” effect of the provision is curious, as it simultaneously inserts a limitation (uses “on Facebook”) and an explication (“in any manner”), neither of which are apparent in the plain words of the text. A more natural reading of the provision is that it gives Facebook a worldwide license to reproduce any pictures or text posted by a user, subject to any privacy settings, that would insulate it from any copyright claims by the user, whether or not the reproduction was made “on Facebook.” Although the term “use” is not defined, it does not necessarily follow that the result should be that any use is permissible, rather than a conclusion that the provision is ambiguous, at best. Of course, regardless of what rights this provision may give Facebook to use profile pictures posted by its users, it does not even purport to give it rights to use their names.

Were plaintiffs claiming that Facebook had violated their rights merely by “sharing” their names and/or profile pictures, the provision of the Statement of Rights and Responsibilities and/ or the provisions of the Privacy Policy that Facebook cites might be dispositive. The gravamen of the claims, though, is not that the names and pictures were displayed, but that Facebook did so in a way that constituted (1) an express representation that plaintiffs had utilized the Friend Finder service, and (2) at least arguably, an implied endorsement by plaintiffs of that service.

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3. Injury

“Resulting injury is the sine qua non of a cause of action for misappropriation of name.” Slivinsky v. Watkins-Johnson Co., 221 Cal. App. 3d 799, 807 (1990). Here, plaintiffs’ sole allegation relating to injury is the conclusory assertion, repeated at least twice in the complaint, that they “have suffered injury-in-fact by having their name[s] and likeness[es] misappropriated without their knowledge or consent.” Plaintiffs have not even alleged that they suffered “injury to [their] feelings, ” which Slivinsky notes is “gist” of a misappropriation claim. Id. Moreover, even if plaintiffs had included a conclusory assertion of “hurt feelings, ” they have alleged no facts that would suffice to show a plausible entitlement to relief. See Iqbal, 129 S.Ct. at 1950. Plaintiffs have not shown how the mere disclosure to their Facebook friends that they have employed the Friend Finder service (even assuming some of them did not) causes them any cognizable harm, regardless of the extent to which that disclosure could also be seen as an implied endorsement by them of the service.

Plaintiffs argue that at least their claim under Civil Code §3344 survives, because the statute provides for minimum damages of $750 for misappropriation of a plaintiff’s name or likeness. Plaintiffs quote Miller v. Collectors Universe, Inc., 159 Cal.App.4th 988 (2008), for the proposition that “by enacting section 3344(a), the Legislature provided a practical remedy for a non-celebrity plaintiff whose damages are difficult to prove and who suffers primarily mental harm from the commercial misappropriation of his or her name.” Id. at 1002. Nothing in Miller or the statute, however, suggests that a plaintiff is entitled to the minimum damages award even in the absence of showing any harm. To the contrary, Miller states that “statutory minimum damages were meant to compensate non-celebrity plaintiffs who suffer . . . . mental anguish yet no discernible commercial loss.” Id. at 1006 (emphasis added). Accordingly, plaintiffs must, at a minimum, plead that they suffered mental anguish as a result of the alleged misappropriation, and a plausible supporting factual basis for any such assertion. The misappropriation claims must therefore be dismissed, with leave to amend.”