Published by LawTechie - December 21, 2011 - LawTechie

FacebookThe Financial Times reported this weekend that Facebook has lost its motion to dismiss in a case arising under California’s right of publicity law. As reported:

The publicity case, which seeks to represent tens of millions of Facebook users, hinges on the “Sponsored Stories” that appear on many Facebook pages, telling users that specific friends “like” companies or products such as Intel, Land’s End and the Nissan Leaf.

California statute provides in relevant part:

(a)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. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.

Cal. Civ. Code § 3344.

In New York we have a similar right of privacy and publicity under NY Civil Rights Law § 50:

Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

A private right of action for damages is granted in § 51.

I imagine that rest of the nation, where most states have similar laws on the books, is watching the California case closely.

LawTechie is a blog focusing on trends in tech and digital media. Areas covered include intellectual property, cyberlaw, venture capital, transactions and litigation as they relate to the emerging sectors. The blog is edited by the firm's partner Tim Bukher with contributions from the firm's experts in their respective areas of law.


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