Almost all posts on social media include depictions of real people. And most social media websites include advertising. Does this combination mean that nearly everyone featured on social media can sue for infringement of their right of publicity? That would be disruptive. Fortunately, a new ruling [PDF] by the California Court of Appeal confirms that more is needed for a right of publicity claim. This is a big win for free expression online.
The decision comes in a case called Cross v. Facebook. The case was brought by a country-rap artist who performs under the stage name Mikel Knight. He promotes his music using “street teams” that sell CDs out of vans. After these vans were involved in several accidents (causing two deaths), Knight was accused of pushing his sales teams too hard and creating an unsafe environment. Some Facebook users created a page called ‘Families Against Mikel Knight’ where ex-street team members and others could comment on Knight’s operation.
Knight filed a lawsuit against Facebook asserting a collection of claims, including one for infringement of his right of publicity. Facebook responded with an anti-SLAPP motion seeking to dismiss the complaint. Since Knight was effectively trying to hold Facebook liable for content posted by users, the court correctly dismissed most of Knight’s claims as barred under CDA 230. But the superior court did allow Knight’s right of publicity claim to proceed. The right of publicity is supposed to prohibit unauthorized commercial use of a person’s identity. The court reasoned [PDF] that Facebook had “used” Knight’s likeness because his image appeared on pages that also included advertisements.
If allowed to stand, the superior court’s ruling would have threatened a huge range of online expression. It would have effectively given people a veto right over speech about them that they didn’t like (as long as that speech appeared on a platform with advertising). This would undermine long-standing limits on defamation law and protections for online intermediaries.
EFF filed an amicus brief [PDF] arguing that the lower court’s decision should be overturned. We argued that Knight’s right of publicity claim was inconsistent with the First Amendment, barred under CDA 230, and did not even satisfy the basic elements of a right of publicity claim. We were joined on the amicus brief by Engine, Professor Eric Goldman, Github, Medium, the Organization for Transformative Works, Professor Rebecca Tushnet, Snap, the Wikimedia Foundation, and Yelp.
The Court of Appeal agreed that Knight could not assert a right of publicity claim. It wrote:
Nowhere does Knight demonstrate that the advertisements appearing next to the pages used his name or likeness, or that any of the advertisements were created by, or advertised, Facebook. All he claims is that Facebook displayed advertisements next to pages created by third parties who were using Knight’s name and likeness to critique his business practices—and their allegedly fatal consequences. While Knight claims that “Facebook continues to place ads on all the unauthorized Facebook pages,” he necessarily concedes that his name and likeness appear not in the ads themselves, but in the content posted to Facebook by third parties. This is insufficient.
This is the right result. Courts had previously held, for example, that a magazine article does not give rise to a right of publicity claim just because it is placed next to an advertisement. There is no reason to have a different, less protective, rule for the Internet.
Since it found that Knight had not pleaded a viable right of publicity claim, the appellate court did not decide whether his claim was also barred by CDA 230 or the First Amendment. But even though it did not reach these issues, the ruling places an important limit on the right of publicity and is a victory for online speech.