Climbing in Our Windows & Snatching Our Likenesses Up: Viral Videos & the Scope of the Right of Publicity on the Internet

• Publication year: 2010
• Citation: Vol. 12 No. 2010

Lorelle A. Babwah⁰

Modern technologies, including digital cameras and media-sharing, Web sites have made it possible for anyone to upload anything at any time and rapidly transmit this content to a worldwide audience. This digital environment fosters the creation of instant Internet celebrities via viral videos. The stars of these videos, such as "Bed Intruder'"s Antoine Dodson, are often unwitting "actors" whose ability to control the use of their likenesses should be protected. This right varies by state and is typically addressed either under the right of publicity or an invasion of privacy by misappropriation of identity action. State laws regarding the right of publicity and privacy protections should construe consent as narrowly as possible to protect the rights of an individual private citizen to exert control over his or her personal identity. Specifically, the consent to be filmed should not be interpreted as consent for that content to then be uploaded, manipulated, and broadcasted throughout the Internet. Furthermore, the uploading and distribution of content in this manner should not be justified by the doctrine of first sale.

I. Introduction

He's climbing in your windows. He's snatching your people up, trying to rape 'em. So y'all need to hide your kids, hide your wife, hide your kids, hide your wife, and

hide your husbands, cuz [sic] they're raping everybody out here.¹

If it is surprising that these are the lyrics to the chorus of one of the summer's most popular songs, it is likely because the circumstances surrounding the genesis of "Bed Intruder Song" are equally bizarre. In the early morning hours of July 28, 2010, Antoine Dodson awoke with a start upon hearing his sister scream.² He rushed into his sister's room to find a man in bed with her with his hands around her neck. Dodson struggled with the assailant, who then fled through a window.³ The following day, Dodson and his sister were interviewed by northern Alabama's NBC affiliate station, WAFF-48 News, in a story focusing on police attempts to find the attempted-rapist.⁴ A news clip of Dodson's interview appeared on the Internet almost immediately following the broadcast.⁵ This interview containing a colorful description of the incident and an impassioned warning to the assailant quickly became the most viewed video on the social-networking site Facebook⁶ and video-sharing site YouTube⁷ . In the blink of an eye, the clip went "viral"⁸ and countless derivatives of the original interview sprang up like mushrooms, seemingly

overnight.⁹ Most notably, a group called The Gregory Brothers¹⁰ autotuned ¹¹ and remixed clips from Dodson's interview to create "Bed Intruder Song," a music video that they posted to YouTube.¹² Shortly thereafter, "Bed Intruder Song" was made available for purchase on iTunes.¹³ It reached as high as 25 on iTunes' singles chart, No. 89 on Billboard's Hot 100 chart, and went on to sell more than 91,000 copies.¹⁴ Despite its inauspicious beginning, there is a silver lining to Dodson's story: the proceeds from both the sale of "Bed Intruder Song" and other merchandise have enabled Dodson and his family to move out of the public housing development where his sister was attacked.¹⁵ Luckily for Dodson, The Gregory Brothers have a policy of compensating the individuals featured in their source material:

[W]e're trying to set precedents by making it so that Antoine, or whoever that artist might be in the future, has a stake not only as an artist but as a co-author of the song . . . . He wrote the lyrics, he's the one who put it out there. What we're doing on iTunes and on any other sales, we're splitting the revenue after it gets through Apple down the

middle. And that [also applies] if we ever license the song for TV or a movie. Whatever happens to the song, he has a 50 percent writing credit.¹⁶

In terms of cashing in on one's Internet celebrity, it would appear that the arrangement between Antoine Dodson and The Gregory Brothers represents the exception rather than the rule.¹⁷ Although videos that reach viral status may generate a great deal of revenue from advertisements and merchandise sales, few of the actors featured are able to profit from their fame¹⁸ or control their likeness. The advent of digital media has made it so that nearly anything available on the Internet can be downloaded, manipulated, copied, and distributed by almost anyone at any time, making it difficult for an individual with any kind of web presence to maintain total control over his or her likeness. It is expected that an increasing number of right of publicity claims will be brought by private individuals because of the diminished control of one's likeness and inability to receive compensation for the individual's own work.

This Recent Development examines the scope of an individual's rights when his or her individual's likeness goes viral and recommends that the right of publicity be recognized and carefully protected for vulnerable non-celebrities. Part II uses the Dodson fact pattern in a hypothetical lawsuit. This exercise highlights problem areas regarding issues of consent and First Amendment protections as exceptions to the right of publicity. Part III gives a brief overview of the relevant terms of use of two popular sites for user uploaded content, and pinpoints potential problem areas. Based on public policy considerations that favor the protection of naive participants, Part IV recommends a limited interpretation of consent as applied to the use of an individual's likeness in circumstances that fall within grey areas in the current legal and cyber policy landscape.

II. Dodson v. Bark & Bark Co.: A Hypothetical

In Dodson's situation, a large portion of his profits are generated from downloads of "Bed Intruder Song,"¹⁹ however, other unauthorized commercial products have surfaced from which Dodson receives no revenue. ²⁰ What follows is a hypothetical lawsuit Dodson could bring against Bark & Bark Co., the purveyor of an unauthorized iPhone application called "Talking Antoine: The Bed Intruder SoundBoard," a program which shows pictures of Dodson and allows users to play sound-bites from his interview that is currently available for purchase on iTunes.²¹

A. Applicable State Law and the Right of Publicity

The right of publicity is defined as "the inherent right of every human being to control the commercial use of his or her identity."²² Unlike laws governing trademark or copyright, the right of publicity has not been codified by federal statute and therefore remains a state-based claim. ²³ At present, only nineteen states recognize a statutory right of publicity; twenty-eight states find this right via common law.²⁴ In the remainder of the states, the right of privacy is either protected under invasion of privacy torts or has yet to be addressed. The lack of uniform or widespread law in this area most likely stems from the fact that some states rarely see these types of actions. Most lawsuits concerning the right of privacy have traditionally been brought by celebrity plaintiffs, most often involving cases of impersonation. ²⁵ Because an individual's rights and remedies will vary by state, the choice of law is an important factor in the outcome. Courts have not been consistent in determining which state law applies; these options vary based on the law of the domicile of the plaintiff and the law of the situs of the injury.²⁶ This exercise will focus on the law of Dodson's home state of Alabama and of California, where iTunes, (the situs of this injury because the app is sold here) is headquartered.

Alabama state courts do not expressly recognize the right of publicity and instead analyze the issue using invasion of privacy torts, which are seen to address the same interests and harms as the right of publicity.²⁷ Specifically, this tort applies to situations where "the defendant appropriates . . . the plaintiff's name or likeness [without consent] to advertise the defendant's business or product, or for some other similar commercial purpose."²⁸ In order to establish a cause of action for misappropriation of likeness (a type of invasion of privacy tort), a plaintiff must show "(1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury."²⁹ In the instant case, defendant Bark & Bark Co. used Dodson's identity. Specifically, they appropriated his name, his likeness, and his voice for use in a commercial product without his consent, causing Dodson financial injury in the form of lost profits. Based on these facts, it would seem that all elements of a prima facie invasion of privacy misappropriation of likeness claim would be met because his likeness was both identifiable and used for the commercial benefit of another.³⁰

If California law is applied, Dodson may rely on the state's statutory right of publicity as a cause of action.³¹ The statute states in relevant part:

Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.³²

It would appear that Dodson meets the elements of a right of publicity claim under California law as well. Here, defendant Bark & Bark Co. knowingly used Dodson's name, likeness, and voice (all of which appear in the soundboard app) without his consent to create a product for commercial sale. In Comedy III Productions, Inc. v. Gary Saderup, Inc.,³³ the California Supreme Court found that the defendant artist violated the plaintiff's (registered owner of the...