The laws of probability tell us that the likelihood of a particular result goes down dramatically as the number of variables on which that result depends goes up. So, for example, while the odds of rolling an even number on a six-sided die is ½, the odds of rolling two even numbers on two dice is ½ times ½, or only ¼.
Predicting the applicability of publicity rights law in the context of social media is a bit like that. Each variable in the equation is itself the subject of greater-than-average uncertainty compared to other fields of law and technology. The right of publicity, for example, is generally treated as a species of intellectual property (“IP”), yet it is a product of state (as opposed to federal) common law, and has only been acknowledged by barely more than half of the states. It has as many sources of law as it does jurisdictions that recognize it—more, in fact—and many of its critical elements remain either disputed or undeveloped. Likewise, social media—as we currently understand that term—has been in the public consciousness for not much longer than five years; yet it has already come to dominate the way that individuals and entire societies communicate worldwide. At the same time, the technology behind, and precise expressions of social media remain incredibly fluid, with individual forums rising from obscurity to prominence and back again all within the space of a year. The proper role of social media in civil society and the parameters of the law that governs it, therefore, are equally uncertain.
Keeping these caveats in mind, however, it is nevertheless both possible and fruitful to explore how the right of publicity—that is, the right of an individual to control the commercial exploitation of his or her identity—will manifest itself in social media. This is actually quite an important inquiry, since the very thing that makes social media special is that it enables individuals to create and deepen interpersonal relationships with specific people—often, people they already know through other means. The identities of our online “friends” and “followers,” therefore, are a crucial component of our social media experience.
The companies that provide these experiences realized this long ago. Indeed, since social media users generally do not pay for the privilege of using the service, the service providers have based their entire business models on exploiting their unique access to our interpersonal relationships. The initial, easiest, and still-predominant way that they profit from our use of their services is by selling advertisers access to our eyeballs. But as social media services have become more sophisticated and the pressure to monetize the services has increased, service providers have dug deeper into the granular detail of our interactions in order to target their ads even more effectively. In many cases, they are relying on the credibility of our friends to sell us goods and services. As discussed below, that practice has given rise to legal action by social media users who argue that this amounts to a commercial exploitation of their identities in violation of the right of publicity.
At the same time, social media’s focus on interpersonal relationships naturally results in a lot more data about individuals being shared in digital form than had previously been done. That, in turn, naturally increases the probability that some of that data will be exploited by commercial means—again implicating the right of publicity.
For several decades before the advent of the social internet and related forms of digital publishing, the right of publicity was a curious blend of privacy, IP, and First Amendment law that was litigated only infrequently and barely registered in the public consciousness. Courts went so far as to explicitly hold that only “celebrities” could even possess the right, and the realities of pre-internet media imposed severe limits on the ability of any given person to achieve enough celebrity to make their identities worth exploiting commercially. Social media—along with reality TV, self-publishing, and the internet in general—changed all that. Perhaps, therefore, the example of rolling two dice is not as apt of an analogy as it may first seem because those two variables are completely independent of each other. The development of publicity rights case law and social media, by contrast, may well depend in large part on each other.
The discussion below begins with a brief summary of the right of publicity, including its elements, development, and remaining areas of uncertainty. It then examines several of the most likely ways that this body of law will influence, and be influenced by social media including: the manner of measuring the “commercial value” in an individual’s identity; the proper amount of damages for misappropriations of that identity; the availability of defenses based on the First Amendment, the Copyright Act, and other related legal rights; and the role social media plays in fueling publicity rights violations.
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Brian D. Wassom: Partner and Chair of the Social, Mobile and Emerging Media Practice Group at Honigman Miller Schwartz and Cohn, LLP (Bloomfield Hills, MI); Instructor of Social Media Law and Ethics at Central Michigan University; law clerk to the Hon. Alice M. Batchelder, United States Court of Appeals for the Sixth Circuit (1999-2000); J.D. magna cum laude, Case Western Reserve University School of Law (1999).