Right of publicity and privacy law scholar Jennifer Rothman locates the origins of the right of publicity—a tort that, broadly, “covers appropriation of one’s name or likeness”—in a world-changing technological development: the camera. With the emergence of personal photography, people began to discover, to their horror, that their images were discreetly captured in public and then disseminated without their knowledge. The confluence of easier personal photography and newspaper journalism, which led to “crop[s] of unseemly gossip” ripe for public consumption, was the animating issue behind Samuel Warren and Louis Brandeis’s development of the right to privacy. One woman who discovered that her portrait was used in a flour advertisement without her permission “was made sick, and suffered a severe nervous shock, . . . and compelled to employ a physician” by the incident. She sued for “injury . . . to her ‘good name.’” After she prevailed at trial and on appeal, the New York Court of Appeals ruled against her, outraging the public. This led to the creation and passage of the first right of publicity statute in the United States, which is still in place today.
Over a century later, these problems are still commonly addressed by the courts. Karen Hepp is a news anchor for the popular Good Day Philadelphia morning show on the local Fox station in Philadelphia, FOX 29. In a city where news anchors are local celebrities, Hepp is a locally well-known and famous personality. In 2018, Hepp’s coworkers alerted her to a concerning development: A candid photograph of her at a convenience store was being used to advertise adult-targeted websites. The origins of the photograph are mysterious; Hepp did not know how it was taken, when it was taken, where it was taken, or how it became public. The photograph did not show Hepp in her capacity as a news anchor and it did not identify her by name. Hepp sued the websites that displayed the photograph under Pennsylvania’s right of publicity law.
Hepp alleged that her image was misappropriated for use in online advertising on social media and other websites. These advertisements customize content for specific audiences based on information collected through social media sites, cookies, pixel tracking, and other activity tracking technologies. These practices are designed to generate more views, otherwise known as “impressions,” and add value for companies by increasing the likelihood that an advertisement will reach someone likely to buy the product or service. In other words, these advertisements derive their value from how effectively they target the people who view them. These targeting practices echo a fundamental underpinning of the right of publicity: value in the view of the perceiving audience.
Section 230 of the Communications Decency Act (CDA) (“Section 230”) governs the legal liability of websites for content generated or posted by third parties, including advertisers. It generally provides broad immunity from legal liability for third-party content, but it contains an exception for content that is intellectual property: “Nothing in [Section 230] shall be construed to limit or expand any law pertaining to intellectual property.” Karen Hepp was able to maintain a right of action because the Third Circuit decided that the intellectual property carve-out applied to state intellectual property law as well as federal law. In the Southern District of New York, however, a similar plaintiff was not so lucky; the court determined that the right of publicity was not intellectual property, but a privacy tort under New York law. Section 230 immunity thus applied to the third-party websites who were defendants in the case, regardless of whether the intellectual property exception applied to state law. The ultimate fate of these and other cases depended on whether the courts viewed the right of publicity as privacy or intellectual property, based on varying state statutes.
State laws and statutes are divided as to whether the right of publicity is protected under privacy law or intellectual property law. Courts have thus differed in their application of Section 230 immunity to right of publicity actions against websites for third-party content. Right of publicity actions that fall under intellectual property law have also received varying treatment based on whether the exception was applied to state law, while claims under privacy law have generally resulted in the defendant being granted Section 230 immunity.
This Comment explores the right of publicity as both intellectual property and privacy action to reach a more equitable construction of the right of publicity in digital spaces than the one that led to the outcomes seen in Hepp v. Facebook and Ratermann v. Pierre Fabre USA, Inc. Section II of this Comment gives an overview of the history of right of publicity law and how it has been applied, from its origins as a tort sounding in privacy to its current form, and how it has interacted with Section 230. Section III analyzes courts’ decisions in Hepp, Ratermann, and Fry v. Ancestry.com Operations Inc., and proposes that one might reconcile them in a federal right of publicity by adopting the Fry court’s reasoning that the value in the right of publicity derives from the viewer’s recognition of a persona in misappropriated content.