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LexBlog/99 Park Row
Evangeline Phang
August 17, 2020

It is another win for social media platforms in the realm of the Communications Decency Act’s Section 230. In a case of first impression within the Third Circuit, the Eastern District of Pennsylvania in Hepp v. Facebook ruled that social media platforms are immune under the Communications Decency Act for right of publicity violations under state law by users of such platforms.

Karen Hepp, a television news anchor for FOX 29 News, filed a complaint against several social media platforms, including Facebook, Imgur, Reddit, and Giphy (collectively, “social media defendants”), alleging that the social media defendants violated Pennsylvania’s right of publicity statute and Hepp’s common law right of publicity, based on such defendants’ “unlawful use of her image.”

Two years before filing her complaint, Hepp discovered that a photograph of her was taken without her consent by a security camera in a New York City convenience store. The photograph was subsequently used in online advertisements for erectile dysfunction and dating websites. For example, Hepp’s photograph was featured: (a) on Imgur under the heading “milf,” and (b) on a Reddit post titled “Amazing” in the subgroup r/obsf (“older but still $#^able”). Hepp alleged that, as a public figure, she suffered harm from the unauthorized publication of her image on the platforms hosted by the social media defendants, but she did not allege that such defendants created, authored, or directly published the photograph at issue.

In response to Hepp’s complaint, each social media defendant filed a motion to dismiss, asserting, among other things, immunity under Section 230 of the CDA. As we have noted in prior articles, Section 230(c) provides a federal safe harbor for internet service providers against liability for content originating from third-party users and content creators. This safe harbor is not boundless, however. For example, Section 230(e)(2) carves out causes of action “pertaining to intellectual property.” Hepp attempted to use this exception to get around the Section 230 immunity afforded to the social media defendants, but the court was not convinced. Ultimately, the court sided with the social media defendants and granted their motions to dismiss.

In reaching its decision, the court acknowledged the circuit split between the Ninth Circuit and several district courts over whether the CDA preempts state intellectual property claims.

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The content in this post was found at https://www.lexblog.com/2020/08/17/district-court-in-third-circuit-sides-with-ninth-circuit-section-230-protects-social-media-platforms-from-state-law-intellectual-property-claims/ Clicking the title link will take you to the source of the post and was not authored by the moderators of freeforafee.com

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\Technology & Marketing Law Blog
Eric Goldman
April 1, 2020
Pellegrino is a saxophone player with “externally rotatable feet,” which has helped him develop a nifty “signature” dance move while playing. The videogame Fortnite sells “emotes,” optional customizations for players’ digital avatars. Pellegrino alleges that the “Phone It In” emote depicts his signature dance move. Pellegrino sued Fortnite for a variety of claims. The court dismisses all of them, with prejudice, except for the false endorsement claim (which will fail later).

Case citation: Pellegrino v. Epic Games, Inc., 2:19-cv-01806-JP (E.D. Pa. March 31, 2020). The complaint.

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Robert Hough
LexBlog
August 22, 2019

As real-world celebrities continue to expand the reach of their persona into the digital realm, the potential benefit for advertisers, game developers and esports event promoters is exceedingly high. But with increased opportunity comes increased risk.A New York Supreme Court recently addressed this risk when it construed the State’s right of publicity statute[1] in a dispute over an NBA 2K18 video game avatar. In Champion v. Take Two Interactive Software, Inc., celebrity basketball entertainer Phillip “Hot Sauce” Champion sued the video game developer, alleging violation of his right to privacy for Take-Two’s use of his name and likeness. The Court ultimately dismissed the lawsuit, but not before it provided a helpful discussion of New York’s publicity statute and its modern application to the esports industry.

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IP Watchdog

Kelvin King & Raymond Weisner
May 4, 2018

The cult of celebrity keeps creating more and more wealth. And concurrent with protecting that, ‘Image Rights”’have been receiving a lot of publicity – as well as the attention of tax authorities. Even James Bond, Sir Sean Connery, has just discreetly protected his brand and trademarked his name. Documents filed in both the EU and the US show the veteran star is ensuring that he and he alone can profit from his name.

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the IP law blog
Scott Hervey
July 5th, 2018

Often writers base characters on complete fiction, drawing from their imagination to build a character’s various facets.  However, on certain occasions a writer may base a character on a living person.  Sometimes such a portrayal is factual and other times it may be a combination of fact and fiction.  Such was the case, claimed legendary actress Olivia de Havilland, in her lawsuit against FX Networks over her portrayal in the FX docudrama Feud: Bette and Joan.

Feud told the tale of the infamous silver screen ongoing battle between Bette Davis and Joan Crawford.  De Havilland claimed that Catherine Zeta-Jones’s portrayal of her in the show (which lasted all of 17 minutes) violated her right of publicity because she did not give the creators of Feud permission to use her name or identity.  Additionally, de Havilland also claimed that FX portrayed her in a false light by taking certain creative liberties with the story (namely, the inclusion of a fictitious interview and the de Havilland character’s reference to her sister as a “bitch” when in fact the term she actually used was “dragon lady”).

At the trial court, FX filed a motion to strike the complaint based on California’s anti-SLAPP statute.  The trial court denied FX’s motion.  The trial court’s ruling presented a Catch-22 for those choosing to portray real persons in creative works.  If the portrayal is done accurately and realistically (and without permission) this is grounds for a right of publicity lawsuit; if the portrayal is more creative or entirely fictitious, this could be grounds for a false light claim if the person portrayed doesn’t like the portrayal.

FX appealed to the California Court of Appeals.  In a lengthy opinion, the court reverses the trial court’s decision and dismissed de Havilland’s case.  By all means, the opinion is a clear endorsement of the First Amendment rights of television producers (and other creatives).

The First Amendment Trumps de Havilland’s Right of Publicity.

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Technology & Marketing Law Blog

March 31, 2018 · by Eric Goldman

Lindsay Lohan is the new spokesperson for Lawyer.com, and boy is she qualified to talk about that subject! Her litigiousness should have earned her a street JD. Sadly, though, her voluminous experience with the law hasn’t adequately sharpened her legal acumen, and she racked up another loss in her litigation oeuvre.

This time, it’s her publicity rights claim against Grand Theft Auto V for the character “Lacey Jonas,” which Grand Theft Auto’s maker featured in some advertising. Two screenshots discussed by the court:

If you’re curious, you can watch a video including a scene with “Jonas” from Grand Theft Auto V. I guess the video is mostly safe for work, but it has some cusswords and lots of sexism.

 

Case citation: Lohan v Take-Two Interactive Software, Inc., 2018 NY Slip Op 02208, 2018 WL 1524714 (N.Y. App. Ct. March 29, 2018)

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Right of publicity.com

January 25, 2018.

An appeal brought by Lindsay Lohan against Take-Two Entertainment and Rockstar Games in relation to the Lacey Jonas character in Grand Theft Auto V has inspired an amicus brief, filed last month, in support of the video game companies.   I am not commenting on the merits of Lohan’s claim here.  I also am not responding to the brief itself, but am just notating a few observations that relate to the New York discussion overall.

The Lohan case is pending in New York.  The amicus brief references New York’s right of privacy statute (New York sections 50 & 51) and indicates that New York’s statute helped the court “dodge a bullet” through its narrow right of privacy provisions.

New York’s legislation, as it shapes New York’s position on the right of publicity and its narrow provisions concerning the right of privacy, is hardly a model for right or privacy or right of publicity legislation (not that anyone has called it a model).  New York’s Sections 50 and 51 puts New York at odds with almost every state in the U.S.  It allows no room for the critical policy reasons behind right of publicity recognition, as distinct from privacy rights.  New York’s right of publicity deficiencies, stemming from the 115 year old legislation (though it has been amended a few times) are, in fact, the source of a lot of problems New York is experiencing.

Addressing New York’s 1903 statute, passed in the aftermath of Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902), Professor J. Thomas McCarthy in The Rights of Privacy and Publicity, s.6:74 says:

“New York …is part of a tiny and dwindling minority of courts which still rejects any common law rights of privacy.

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