If you’re reading this blog, you already know about social media. You probably already know about the major players (e.g., Facebook, Twitter, Instagram, LinkedIn) and might even participate in one or more of these venues personally and professionally. If you participate professionally or are considering doing so, there are many things you should keep in mind.
This is the fourth post in a series of four on this topic. In this post, I address how rights of publicity should be considered in social media. The first post covered general dos and don’ts, the second trademarks, and the third copyrights.
Right of publicity defined: A person’s right to prevent others from commercially exploiting his or her identity without permission
The right of publicity is a state-based right, so whether and how it applies may be determined on a state-by-state basis. Currently 19 states recognize the Right of Publicity via statutes, and 28 more recognize the right via common law. North Carolina does not presently have a statute or common law basis for such rights but has considered legislation in recent years. Despite the lack of such rights in the state at the moment, it’s still a cause for concern for North Carolina businesses given the broad reach of social media.
Publicity DOs and DON’Ts
DO reserve – and make use of – social media handles in the names of top people in your organization and have a policy in place about use of such accounts.
“Marilyn Monroe” has just less than 200,000 Twitter followers; Twitter’s CEO has more than 1 million followers; the pope has more than 4 million. A person’s name can be used as a Twitter handle, as the profile name of a Facebook page, as a YouTube channel, as a character in a video game, or in the title of a smartphone app. Similarly, a person’s “portrait,” “picture,” or “likeness” can come in the shape of a digital image that can be copied and pasted thousands of times in any of the scenarios above, as well as appearing as a video on YouTube, as the wallpaper on a cell phone, or as an avatar on a smartphone app.
DO monitor and take action against imposters.
Imposters are cropping up everywhere. Allowing one to exist under your name for very long could be detrimental. Imposters on Facebook, for example, may set up an account pretending to be you – either as an individual or as your business. They may then create a phony contest to obtain personal information from other Facebook users. Businesses or personalities with a large enough following may verify their Facebook accounts to provide security that their accounts are legitimate accounts. Twitter also has tried to mitigate the problem via its “Verified Account” initiative by helping users “discover high-quality sources of information and trust that a legitimate source is authoring the account’s Tweets.” If your business isn’t well-known enough yet to be offered the chance to verify its accounts, you may guard against imposters by linking to your Facebook or Twitter address from your official website and by completing the “About” or profile pages associated with your accounts to provide accurate information regarding your location and what you do.
DON’T use photos of people without their permission to advertise your products and/or services
In 2011, a class action was filed in California against Facebook over its “Sponsored Stories” advertising services. This lawsuit arose after certain Facebook users found out that their names and user profile photographs were arranged by Facebook in the perimeter of newsfeeds viewed by their friends based on their “likes” of various branded products. Facebook admitted that such advertising approximately doubled the value of an advertisement without an accompanying testimonial. Given that the plaintiffs were able to show a “direct, linear relationship between the value of their endorsements of third-party products, companies, and brands to their Facebook friends, and the alleged commercial profit gained by Facebook,” the plaintiffs were allowed to continue their right-of-publicity case. This case has now settled, and Facebook no longer offers Sponsored Stories as an advertising option.
DON’T suggest that a celebrity endorsed your products or services without a basis for doing so.
Celebrities appeal to the masses, and use of their images may encourage consumers to respond favorably to products or businesses with which such celebrities associate. However, without express permission of the celebrity to make such a connection, a business leaves itself open to liability. For example, Eddie Irvine, a Formula 1 driver, brought suit against Talksport for using a photograph of him listening to a radio. The image had been altered to incorporate the Talk Radio logo, giving the impression that Irvine was listening to Talk Radio. The court found that the false endorsement of this nature constituted passing off and ordered Talksport to pay damages to Irvine.
DON’T forget to make sure you have a policy in place that reasonably addresses potential issues.
In a recent Pennsylvania case, a banking company, Edcomm, was found liable for infringing the publicity rights of Dr. Eagle, its former CEO. After Eagle was terminated, Edcomm used her password to access her LinkedIn account. Eagle was locked out of her account, and her information was replaced with that of the new CEO. For several weeks, anyone looking for Eagle and following the link to her profile found a page for her replacement instead. Although she was not awarded any damages, she won. And, of course, Edcomm had to pay its own attorneys’ fees. Avoid these issues by addressing them before they occur in a written policy.
Rebecca Crandall is an intellectual property attorney with Olive & Olive, P.A. Rebecca works with inventors to protect their inventions, businesses protect their brands, and creative types protect their creations. She also regularly represents clients in dispute matters relating to these issues. Rebecca is one of just six attorneys in North Carolina who is both a registered patent attorney and a NC Board Certified Trademark Specialist.