Social Media Brings the Right of Publicity to the Masses

Do you consider yourself famous? If the answer is no, then you have likely never been concerned with the invasion of your right of publicity. The right of publicity is the right of a person in his or her identity—name or likeness or any other indicia of identity. This right protects persons from the taking of an identity for commercial gain without proper remuneration. For example, a cereal manufacturer could not place a picture of a celebrity on the cereal box without consent by that celebrity (and a license to use the picture, if protected by copyright law). Using such a picture would necessarily create a false association between the product—the cereal—and the celebrity. Because the celebrity has value in his or her likeness, the right of publicity allows the celebrity to protect that identity (and not have it be devalued or taken advantage of by others for commercial gain).

Generally, everyday people do not face right of publicity issues, as they do not generally have the same “commercial value” in their identities as celebrities. However, with the advent of social media, this is changing.

Have you ever received an email from LinkedIn stating that a friend would like you to “join” or “connect” with you on LinkedIn? Why do you think this is? Likely, because amongst your peers, you are “famous.” Your identity has value. And thus, social media has imbued in everyday persons “commercial value” in their unique identities. Additionally, social media has created a niche market for right of publicity lawsuits in the context of social media.

Lawsuits have been popping up in California against social media platforms like Twitter, Snapchat and LinkedIn by social media users claiming violation of their rights of publicity. Namely, social media users claim that the social media platforms have used their names or likenesses for commercial gain. Recently, in Perkins v. LinkedIn Corp., social networking website LinkedIn was sued by LinkedIn users who alleged that LinkedIn had infringed on their rights of publicity (amongst other claims). The basis for the claim is as follows: upon joining LinkedIn, new users were prompted to “Grow your network on LinkedIn,” which if the user accepted, would grant LinkedIn access to the user’s email addresses and contacts. If the user agreed, the user’s personal contacts would appear in LinkedIn, and the users were eventually prompted to invite their contacts who were not already members of the site to join LinkedIn Network. If the user agreed, LinkedIn would then send an initial invitation to all email addresses the user had selected (all contacts were selected by default) from the user’s name via LinkedIn that read: “I’d like to add you to my professional network.” If, one week after receiving the initial invitation email, the recipient had not joined LinkedIn, LinkedIn would send a reminder email encouraging the recipient to join. The reminder email is titled: “Reminder about your invitation from [LinkedIn user].” The body of the email contained the text: “This is a reminder that on [date of initial email], [LinkedIn user] sent you an invitation to become part of their professional network at LinkedIn.” If after a second week, the recipient of the reminder email had still not joined LinkedIn, LinkedIn would send a second, similarly personalized reminder email.

In bringing their right of publicity claims, the plaintiffs alleged that LinkedIn had used their names and likenesses to personally endorse LinkedIn’s services for the commercial benefit of LinkedIn and to detriment of plaintiffs. LinkedIn first moved to dismiss the action for lack of standing, claiming that the plaintiffs had no coherent theory that they had suffered economic harm, and that the plaintiffs’ had consented to the use of their rights of publicity. The court rejected this argument, writing that the measure of personalization of the endorsement has “concrete and provable economic value.” LinkedIn had misappropriated its users’ names to promote LinkedIn and grow its membership, which is “indisputably economically valuable to LinkedIn.”

But what about consent? Notably, consent is a complete defense to a claim for violation of the right of publicity, but the consent must be broad enough to cover the specific claims brought. Social media platforms must be wary to create terms of service broad enough to inform users that their likenesses may be used to promote and monetize the website, else they may be subject to right of publicity claims. In Perkins, the court found that though the users’ had consented to the use of their identities in the first reminder emails, they had not consented to the use of their identities in the follow-up emails, writing: “Nothing in LinkedIn’s disclosures alerts users to the possibility that their contacts will receive not just one invitation, but three.” Though LinkedIn claimed that the additional emails would cause no independent harm, the allegations that subsequent emails would have a “deleterious effect on users’ reputations” by sending multiple emails was sufficient and plausible as “the second and third endorsement emails could injure users’ reputations by allowing contacts to think that the users are the types of people who spam their contacts or are unable to take the hint that their contacts do not want to join their LinkedIn network.”

Later, LinkedIn again moved to dismiss, claiming various defenses, including preemption by the Communications Decency Act (CDA), protection by the First Amendment, and incidental use. The court denied all three defenses, writing that the claim was not preempted by the CDA because LinkedIn created the content that violated users’ right of publicity. (The CDA inoculates passive websites that do not create contact, but rather relay it, from liability.) The court further held that LinkedIn’s actions were not covered by the First Amendment as the emails were “misleading commercial speech.” Last, the court held that the use of reminder emails was critical to the websites commercial purpose and thus not incidental use. Thus, the case again survived a motion to dismiss.

This emerging duo—social media and the right publicity—may die out just as quickly as it came, due to a social media platform’s ability to draft its way out of liability through disclosures and terms of service. However, as to the current state of affairs, social media platforms would be well advised to heed the independent right of a social media user in his or her right of publicity and ensure that consent of a proper scope is obtained before using any such identity for commercial gain.