The past few years have seen a surge of activity in right-of-publicity litigation related to social media. Cases such as Fraley v. Facebook and Perkins v. LinkedIn addressed social media websites’ unauthorized use of user names and likenesses for commercial purposes and demonstrated how non-celebrities could successfully assert large-scale right-of-publicity claims.
There appears to be little future, however, for similar right-of-publicity claims as websites such as Facebook have amended their terms of service to include consent for commercial uses of names and likenesses. Social media users should therefore be aware of what they consent to by agreeing to these terms – because giving up some control over one’s likeness in commercial use may just be part of the bargain.
The right-of-publicity is, broadly speaking, the right of individuals to control the commercial use of their identities. What exactly constitutes one’s identity in this context varies from state to state, as right-of-publicity is a state law doctrine, but the generally protected elements are one’s name, image and likeness.
While the plaintiffs in these cases may have scored a moral victory by demonstrating that everyday people can successfully assert right-of-publicity claims in the context of social media, the practical effects, particularly in the case of Facebook, are not particularly significant.
While celebrities have traditionally been the plaintiffs in right-of-publicity cases, the rise of social media in the past decade has led to a slew of right-of-publicity claims by non-celebrities as the identities of millions of people have suddenly become visible, accessible, and in some cases, profitable. I mentioned previous two of the more notable right-of-publicity cases focusing on social media. In Fraley, Facebook users sued the social media platform under California civil code over the company’s practice of directing targeted advertisements to the users’ friends using the names and photographs of users who have “liked” the product. In Perkins, LinkedIn users filed suit against the corporation over its practice of harvesting email addresses from the users’ contact lists and sending multiple emails containing the users’ name and photograph to non-users, asking them to join the social networking site. In both cases, the social networking sites’ motions to dismiss were denied and they wound up settling.
While the plaintiffs in these cases may have scored a moral victory by demonstrating that everyday people can successfully assert right-of-publicity claims in the context of social media, the practical effects, particularly in the case of Facebook, are not particularly significant. Since Fraley, Facebook has simply amended its Statement of Rights and Responsibilities (SRR) such that users must consent to commercial uses of their names, images and likenesses as a condition to using the website. As stated in Facebook’s SRR:
You give us permission to use your name, profile picture, content, and information in connection with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. This means, for example, that you permit a business or other entity to pay us to display your name and/or profile picture with your content or information, without any compensation to you. If you have selected a specific audience for your content or information, we will respect your choice when we use it.
While the amended SRR appeared to close the door on right-of-publicity claims against Facebook, there was a remaining question in the minds of some users: is the SRR always enforceable? In 2014’s C.M.D. et al. v. Facebook, a group of minors who had opted out of the Fraley settlement argued that Facebook’s SRRs are not legally enforceable as to the class. Plaintiffs argued that i) SRRs “represent a type of contract into which a minor cannot legally enter under California Family Code § 6701”; or alternatively, ii) SRRs are voidable when entered into with minors pursuant to California Family Code § 6710. The court rejected both these arguments and granted Facebook’s motion to dismiss.
As to the first argument, the court found that under California Family Code § 6701, the presumption is that minors can enter into legally binding contracts, except in certain circumstances, which were not present in this case. As to the second argument, the court stated that while California Family Code § 6710 “almost certainly would allow plaintiffs to disaffirm the SRRs, they have never plainly expressed an intent to do so, and they do not dispute that they continued to use their Facebook accounts long after this action was filed.”