Published by LawTechie - March 15, 2011 - LawTechie

In a custody suit, the Court of Appeals of Kentucky has refused to exclude as evidence Facebook pictures of a mother drinking. Lalonde v. Lalonde, — SW3d —, 2011 WL 832465 (Ky. App., February 25, 2011).

The mother moved the Court to exclude pictures which might hurt her custody battle on the basis that she did not give permission to have them taken and posted (and tagged) on the Facebook website.  The Court ruled:

There is nothing within the law that requires her permission when someone takes a picture and posts it on a Facebook page. There is nothing that requires her permission when she was “tagged” or identified as a person in those pictures. Similarly, although we acknowledge that modern digital photography techniques may allow for the alteration of a photograph, Jessica did not suggest such techniques were employed. She instead acknowledged the photographs were accurate which leads to the conclusion they were not altered. We find nothing to cause us to disagree with the admission of the photographs as evidence.

This case, of course, does not touch upon the causes of action a plaintiff might have against people who post their pictures without permission. Specifically, unauthorized photographs of a person used in a commercial manner (such as for advertising) could potentially violate that person’s right of publicity (e.g., New York Civil Rights Law 50 makes it a misdemeanor to use a person’s name, likeness or image in a commercial manner without their express, written consent).

An Aside: Interestingly, since many Facebook photographs are self-portraits, their subjects often own the copyrights to those photographs. Thus, theft (read: download) by a third-party of such self-portraits and subsequent exploitation of those self-portraits in a commercial manner calls both the right of publicity and copyright into play — Courts are often torn over the issue of Federal preemption as it applies to Federal copyright law preempting state right of publicity.

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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