Tag Archives: Right of Publicity

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Pinterest is one of the hottest new social media sites and has introduced another slew of questions about its legality. Copyright in particular has been a contentious issue with the picture dependent site. Andrew Mirsky provides a thorough look at the legal issues involved, including images of famous people, copyright – fair use – and trademark. In addition his article “Pinterest: Fair Use of Images, Building Communities, Fan Pages, Copyright” also provides some guidelines in going ahead with a Pinterest account.

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Ever wonder what makes a social media lawyer different from any other lawyer? “What the Heck Does a Social Media Lawyer Do Anyway?” gives a thorough overview to the major issues that a social media lawyer might be involved in. It’s not surprising that in a fast-paced and ever changing environment like social media, a social media lawyer can expect a great deal of variety to come their way.

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A recent case concerned the use of an engagement photo. Public Advocate defended its unauthorized use of the photo as parody. The owner of the photo responded through a common law right of publicity claim. Marie-Andree Weiss’ article “When Your Engagement Photo Becomes a Political Ad: Parody and Right of Publicity” looks at the issues in depth.

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By Michael Kernan

A major issue for Facebook going forward is going to be how it handles Right of Publicity claims by its users. Advertisers love Facebook because they have found that a friend endorsing their product has more impact on you as a consumer than a costly celebrity endorsement. The problem, as identified in the Facebook lawsuit recently settled, is Facebook users are claiming that Facebook has no right to use their name or likeness in such ads. Facebook sought to dismiss a lawsuit based upon claims that it violated its users’ Right of Publicity, but the judge refused to dismiss that lawsuit.

Facebook has now settled that lawsuit by paying $10 million to charity. (See Kevin Smith’s article.) It will be interesting to see how Facebook handles these claims going forward. The solution may lie in Facebook amending its terms of use. “Consent” is a defense to Right of Publicity actions.

Please see our article next week on terms of use.

 

You may also be interested in our previous entry on “The Right of Publicity in the Digital Age“.

For further background on the class action lawsuit and Facebook’s initial reaction to it, see the following two articles:

“Facebook Class Action Lawsuit Seeks$15 Billion for Privacy Violations” by Brian Prince.

“Facebook Hit with Lawsuit Alleging Privacy Wrongs” by John P Mello Jr.

 

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As we start the new year, everyone seems to be posting about what trends will be hot this year in Social Media Law. One thing is clear: Social Media Law is going to be increasingly in the news and in the courts. As a starting point, here are Brian Wassom’s “5 Predictions for Social Media Law in 2012”.

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Many people are still trying to decide how Twitter fits in to their social media network. Here are two recent, interesting links.

This link from The National Law Journal examines how law firms are incorporating Twitter:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202500674237&How_are_AmLaw__firms_using_Twitter&slreturn=1&hbxlogin=1

This link is an interesting essay on Twitter, the Right of Publicity, and CDA. This is an interesting follow up to some of the recent posts on Social Media Law.

http://law.marquette.edu/ip/v15/sesek.pdf

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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.

…

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.”

 

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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. (1st 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.).

 

 

 

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.

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