Legal Blog

Taking a look at the Right of Publicity in the Age of Social Media

Right of PublicityIn his weekly blog, “Friday Factoid,” Offit Kurman attorney Jon Wachs delves into intellectual property issues that could affect you and your business. In one of his most recent posts, “Friday Factoid 4.25.14,” Mr. Wachs explains the Right of Publicity in the age of social media and what happens when someone misappropriates a person’s name, likeness, or image for their own personal gain.

The Right of Publicity in the Age of Social Media

The right of publicity is the right to control the commercial exploitation of a person’s name, likeness, or persona. However, with the boom of social media – Facebook, Twitter, Google+, YouTube, etc. – lawmakers have struggled to keep up with the constantly-evolving issues. When is it acceptable to use someone’s name and likeness and when does it cross the line, legally? What is particularly menacing is how one’s right to publicity sometimes clashes with the First Amendment protections afforded to those reporting newsworthy events. Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Cal. 2011) This class action lawsuit originated when certain Facebook users found their names and images were being used as part of the site’s “Sponsored Stories” to sell products and services. The lawsuit alleged three causes of action:

  1. Facebook violated California’s right of publicity statute.
  2. The Sponsored Stories violated California’s unfair competition law.
  3. Facebook’s actions constituted unjust enrichment.

In regards to the right of publicity claim, Facebook argued the Sponsored Stories were “newsworthy” and therefore legal under the First Amendment. The court, however, disagreed, stating that the newsworthiness exemption does not apply to “commercial rather than journalistic” uses. Despite Facebook’s best efforts, both the right of publicity and the unfair competition claims survived, while the independent unjust enrichment claim was dismissed. And on January 2, 2013, notices of a proposed settlement were sent out to the 125,000,000 potential class members. Right of PublicityIf you have any questions about the Right of Publicity or Intellectual Property Law, please contact Jonathan R. Wachs: | 301.575.0302 As head of the firm’s Intellectual Property Group, Mr. Wachs works closely with clients to develop, register, analyze, enforce, and transfer intellectual property assets in a customized, cost-efficient, and highly effective manner. Additionally, he conducts intellectual property audits through which clients learn the nature and value of their intellectual property assets and the steps needed to protect such assets from misappropriation or dilution. You can also connect with Offit Kurman via FacebookTwitterGoogle+YouTube, and LinkedIn. Sources: INTELLECTUAL PROPERTY LAW: The Right of Publicity and the Social Media Revolution Fraley v. Facebook