1. Facebook Violated Users’ Right of Publicity, But You’ll ‘Like’ The Outcome

    Another day, another social media privacy lawsuit. This time, however, it isn’t about passwords or email addresses or credit card data breaches. It’s about users’ names and faces being used – without their knowledge or approval – to sell a wide variety of products. From law firm Kilpatrick Townsend:

    “Facebook recently settled a class-action lawsuit stemming from [its] alleged unauthorized use of users’ photographs in ‘sponsored stories’ advertisements on its site. The class action plaintiffs alleged that Facebook’s use of their images in ‘Sponsored Stories’ advertisements violated the plaintiffs’ rights under the California right of publicity statute, which reserves to the individual the right to control their image for commercial purposes…

    Facebook users had been serving as unwitting brand promoters on the site, appearing without their permission or knowledge in promotional ‘stories’ featuring advertised products and services. Merely ‘liking’ a company or brand functioned as an effective opt-in that allowed Facebook to use the user’s image in that company or brand’s advertising on the site.”

    What is the California right of publicity law, exactly? Social media lawyer Michelle Sherman:

    “The ‘right of publicity’ statute in California prohibits use of another person’s name, voice, signature, photograph, or likeness for the purpose of advertising or selling products, goods or services without the person’s prior consent. If the person is a minor, then the prior consent of his parent or legal guardian is required. This statute does not require bad intent, and sets damages at a minimum of $750 and possibly greater based on actual damages or any profits received from the unauthorized use. Punitive damages may also be recovered, as well as attorneys’ fees.”

    California isn’t the only state with laws protecting the right of publicity, writes Sherman:

    “States vary on how they recognize a right of publicity, with 19 states including Nevada, New York, Pennsylvania and Washington having right of publicity statutes, and 28 other states recognizing it through their common law. Whatever its form, states recognize that individuals should have the right to be compensated for a commercial exploitation of their name, voice or image, unless they have agreed to give up that right.”

    And when businesses violate that right, they end up paying. Kilpatrick Townsend again:

    “Facebook agreed to pay a total of $20 million, with half of the settlement funds donated to charities and law schools, and the other half going to plaintiffs’ attorneys. Other than the three class representatives, no Facebook users will receive any funds from the settlement.”

    It’s rumored that Facebook will also lose more than $100 million of advertising revenue when users opt out of the “Sponsored Stories” ads (see Facebook Has To Give Users Right To Opt Out Of ‘Sponsored Stories.’ Goodbye, $103 Million in Revenue). 

    The win for the millions of users who unwittingly endorsed products isn’t money – they’ll get none – but rather getting back the rights to their own publicity and privacy. Kilpatrick Townsend once more (bold ours): 

    “The real strength of the settlement perhaps lies not in the financial recovery but in the strengthening of the growing dialogue between social media sites and their users. Until recently, Facebook’s use of user images in its sponsored story advertising, and the internal policies relating to such advertising and the implicated rights of publicity, had been entirely opaque. Now Facebook has agreed to cooperate and communicate with users on the privacy and right of publicity concerns stemming from its widespread social media advertising campaigns.”

    Now that’s something that Facebook users can wholeheartedly LIKE.

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    Read the updates:

    • What You Can Learn From Facebook’s “Sponsored Stories” Settlement - Michelle Sherman

    • Facebook Resolves User Right of Publicity Claims Concerning Sponsored Stories Advertising - Kilpatrick Townsend 

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    See also:

    • Celebrities Protected by ‘Right of Publicity’ - Lewis and Roca LLP 

    • Albert Einstein, Marilyn Monroe, and the Right of Publicity - Manatt, Phelps & Phillips, LLP 

    • No Doubt Right of Publicity Lawsuit Will Head to Trial - Donald Scarinci 

    • I See (Virtual) Dead People: Tupac Shakur and the Right of Publicity - Pryor Cashman LLP 

    • Life After Death - Right of Publicity Law - Sheppard Mullin Richter & Hampton LLP 

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