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In 2011, Facebook users discovered that when they “liked” certain products or services, their profile pictures were used to promote those goods to their friends. This new premium advertising service called “Sponsored Stories” prompted a class action lawsuit against Facebook for damaging their right of publicity — which gives a person the right to prevent others from commercially using their identity, voice, name or likeness without permission.
This case is a prime example of applying the right of publicity laws to social media, experts said during an American Bar Association webinar on navigating the right of publicity in the age of social media.
“Individuals who are not celebrities also have the right of publicity,” said Lindy M. Herman, senior associate at Wang, Hartmann, Gibbs & Cauley PLC. “Their personalities have value — even if it’s not to the rest of the world — they have value to somebody.”
“The person always owns their own image or the right to exploit their own image,” agreed Lynne Boisineau, partner at McDermott Will & Emery LLP, Irvine, Calif.
In order to use a likeness of a person commercially, you must obtain copyright permission from the owner of the image, as well as the person who is represented in the image, even if it is being displayed on a social networking site, Boisineau said.
One example of a violation of the Right of Publicity laws occurs regularly on Twitter when people create accounts posing as celebrities.
To help users protect their identities on Twitter, the company created verified user accounts and is responsive to complaints.
An individual can make a complaint to Twitter and get the impersonating account taken down, Boisineau said.
“Of course, they always have the opportunity to respond, but in general, when you request to get it removed from any of these social media sites, we can get it done rather quickly,” she said.
Experts agreed that companies can protect themselves from lawsuits if they secure right of publicity licenses, audit their advertising practices and obtain clearances before using materials that may violate Right of Publicity laws.