By Meg C. Lenahan, Summer Associate
Use Facebook? If so, did you know that your right of publicity has been at the center of litigation for over a year?
In March 2011, a class action suit, Fraley v. Facebook, Inc., was filed on behalf of users featured in Facebook’s Sponsored Stories. Sponsored Stories create customized paid advertisements, starring Facebook’s own users based their activity on the site. For example, if your friend Bucky “likes” Rosetta Stone, you might see his profile picture underneath the Rosetta Stone logo on the right side of the page—the portion of the site where advertisements appear. See below.
Mark Zuckerberg, Facebook founder and CEO, described the feature—which originally gave users a choice to opt out (rather than opt in)—as a “trusted referral” and “the Holy Grail of advertising.” In their complaint, the named plaintiffs in Fraley instead described it as a violation of their publicity rights.
Governed by state law, the right of publicity is an intellectual property right that protects against the unauthorized use of an individual’s identity for commercial purposes and grants that individual the exclusive right to control and profit from commercial use of his or her identity. This means, for example, that Olympic gold medalist Ryan Lochte has the exclusive right to control and profit from any sales of custom-made American flag grills using his image or that Kim Kardashian has the exclusive right to control and profit from use of her name to sell perfume. Even your friend Bucky would have an exclusive right to control and profit from use of his identity in connection with Rosetta Stone advertisements. That is, of course, unless Bucky licensed or transferred his right of publicity to someone else—someone like Facebook. (more…)