Twitter or Tweeter: who should be liable for a right of publicity violation under the CDA?

AuthorSesek, Kristina M.
PositionCommunications Decency Act

INTRODUCTION I. THE DEVELOPMENT OF THE RIGHT TO PUBLICITY. II. THE CDA AND ITS LEGISLATIVE HISTORY III. PURPOSE OF THE CDA. IV. EXAMINING THE JURISDICTIONAL SPLIT AS TO WHETHER [section] 230(E)(2) OF THE CDA INCLUDES BOTH STATE AND FEDERAL INTELLECTUAL PROPERTY LAW A. The Argument that "Intellectual Property" Under [section] 230 (e)(2) of the CDA Only Includes Federal Intellectual Property Law B. "Intellectual Property" Under [section] 230 (e)(2) of the CDA Includes Both State and Federal Intellectual Property Law V. THE PLAIN LANGUAGE AND THE UNDERLYING PURPOSE OF [SECTION] 230(E)(2) DEMONSTRATE THE RIGHT OF PUBLICITY SHOULD FALL UNDER THE INTELLECTUAL PROPERTY EXCEPTION OF THE CDA CONCLUSION INTRODUCTION

In 2009, an unknown Twitter user created a fake account for Anthony La Russa, the manager of the St. Louis Cardinals, at twitter.com/TonyLaRussa. (1) The user posted "tweets," or updates, as La Russa, a few of which were vulgar and Cardinals-related. (2) The page also included a photo of La Russa and only one line on the page suggested it was fake, as the profile stated: "[b]io [p]arodies are fun for everyone." (3) La Russa tried to contact the site to have the phony page removed, but was unsuccessful, and filed the first suit of its kind against Twitter. (4) La Russa's complaint alleged trademark infringement and dilution, cybersquatting, and misappropriation, also known as a violation of the right of publicity. (5) Hours after the suit was filed, Twitter removed the fake page, and the case was eventually settled. (6)

Similarly, Ron Livingston, Office Space movie star, recently filed suit after an anonymous Wikipedia editor repeatedly altered Livingston's Wikipedia entry so it stated that Livingston was homosexual. (7) A fake Facebook profile was also created for the actor, again alluding to homosexuality; Livingston suspected the individual who edited the Wikipedia page also created the profile. (8) When the media first reported this story, it was known the actor filed suit, but there was much debate as to whom he named as the defendant, Wikipedia and Facebook or the unknown individual responsible for posting the false information. (9) While the individual responsible for the post would normally be named as a defendant for a right of publicity violation regardless of Twitter's liability, in this instance, that person was unknown; thus, making it plausible that Livingston would seek restitution against Twitter.

This debate occurred because of the lack of uniformity between the Circuit Courts as to how a particular provision, the intellectual property exemption, in the Communications Decency Act (CDA) should be interpreted. one circuit has held that the intellectual property exemption under the CDA only includes federal intellectual property rights, like copyright and trademark, while other circuits have held that the intellectual property exemption under the CDA includes both federal intellectual property rights and state intellectual property rights, like the right of publicity.

A resolution of this jurisdictional split is important. If the intellectual property exemption under the CDA includes only federal intellectual property rights, then an individual whose right of publicity has been violated by another party posting on a website, such as Twitter, Facebook, or Wikipedia, may only seek restitution against the individual who posted the content. on the other hand, if the intellectual property exemption under the CDA includes both federal intellectual property rights and state intellectual property rights, then an individual whose right of publicity has been violated by another party posting on a website, such as Twitter, Facebook, or Wikipedia, may seek restitution against both the individual who posted the content and the internet service provider (ISP), Twitter, Facebook, or Wikipedia.

This Comment will demonstrate that a state law right of publicity claim should be included in the intellectual property exception of the CDA, and thus, individuals like Tony La Russa and Ron Livingston should be able to seek redress for violations of their rights of publicity from ISPs, like Facebook, Twitter, and Wikipedia. Part II will explain the development of the right of publicity. Part III will detail the legislative history of the Communications Decency Act. Part IV will propose two possible reasons why the CDA carved out an exception for intellectual property rights. Part V will contain an examination of the case law that has caused the jurisdictional split as to whether the right of privacy and other similar state intellectual property rights fall under the intellectual property exception of the CDA. Finally, Part VI will conclude by demonstrating that according to the plain language of the statute and the proposed purposes, the right of publicity should be included in the intellectual property exemption of the CDA.

  1. THE DEVELOPMENT OF THE RIGHT TO PUBLICITY

    The right of publicity, a state law claim, is a person's legal right to control the exploitation of their name and likeness. (10) The right "prevents unjust enrichment by providing a remedy against exploitation of the goodwill and reputation that a person develops in his name or likeness through the investment of time, effort, and money." (11) As the Restatement (Third) of unfair Competition explains, the right "appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for the purpose of trade." (12)

    The notion of the right of publicity arose in the American legal community as a result of three pivotal law review articles. (13) It was not until sixty-three years after the publication of these articles, in 1953, that Judge Frank of the Second Circuit Court of Appeals coined the term "right of publicity." (14) The Supreme Court recognized the right of publicity in 1977, as it noted the following different motivations behind the right of privacy and the right of publicity: economic interests drive the right of publicity, while privacy protections drive the right of privacy. (15)

    Cases involving the right of publicity typically involve a celebrity plaintiff. However, courts are split as to whether being a celebrity is a prerequisite to bringing a right of publicity claim. Some courts have found right of publicity is restricted to celebrities. (16) On the other hand, the majority of courts have found that non-celebrities are allowed to recover for a violation of their right of publicity if there is proof that the individual's identity possesses some economic value. (17) Therefore, for one to invoke the right of publicity, the individual must have attained some degree of "celebrity status," meaning their identity has an economic value that needs protection.

    The right has expanded and evolved over time into one the courts typically classify as an intellectual property right. (18) The right originated from state statutes and common law, and there is no federal equivalent. (19) Currently, nineteen states have statutes that define a right of publicity and twenty-eight others recognize a common law right of publicity. (20) The Restatement outlines the elements of the prima facie case, which require the plaintiff to establish:

    1. Validity. Plaintiff owns an enforceable right in the identity or persona of a human being; and

    2. Infringement

    (A) Defendant, without permission, has used some aspect of identity or persona in such a way that plaintiff is identifiable from defendant's use; and

    (B) Defendant's use is likely to cause damage to the commercial value of that persona. (21)

    While these elements are typical of what one would need to prove for a successful right of publicity claim, it should be noted that the elements might vary from state to state.

  2. The CDA and Its Legislative History

    Congress passed the CDA as Title V of the Telecommunications Act of 1996. (22) The CDA was primarily passed to protect minors from exposure to obscene and indecent material on the Internet, as the legislative body was "troubled by an increasing number of published reports of inappropriate uses of telecommunications technologies to transmit pornography, engage children in inappropriate adult contact, terrorize computer network users through 'electronic stalking' and seize personal information." (23) However, the CDA provisions regulating pornographic content were subsequently struck down as unconstitutional.

    The second reason the CDA was passed, as emphasized by both the House and Senate, was to overrule Stratton Oakmont Inc. v. Prodigy Services, which treated ISPs as publishers or speakers of the content posted on their sites. (24) In Stratton Oakmont, the defendant hosted "Money Talk," the country's top financial message board at that time. (25) An anonymous user posted statements on "Money Talk" alleging criminal and fraudulent behavior by Stratton Oakmont, Inc. and Stratton's president, Daniel Porush. (26) originally, Prodigy advertised it "exercised editorial control" over the message board, but by the time the defamatory comments were posted, Prodigy changed its policies. (27) Regardless, Stratton claimed that Prodigy edited the contents on its message boards in a way that rendered the company a publisher for liability purposes. (28) The court determined Prodigy exercised sufficient editorial control over the message board to qualify as a publisher. As a result, this decision imposed the same responsibilities on ISPs as newspapers, making them liable for the statements posted on their message board. (29) The court found that "[b]y actively utilizing technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and 'bad taste,' for example, P[rodigy] is clearly making decisions as to content ... and such decisions constitute[d] editorial control," and thus, Prodigy was operating as a publisher. (30)

    At the same time, while drafting the CDA...

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