IM 350 Intellectual Property Law and New Media Spring 2015 Mug Shots Galore Mug Shots Galore Mug shots used to be public in theory but not practice Now they are big business Publishers obtain mug shots and create searchable databases ID: 276283
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Slide1
Tort Cases
IM 350: Intellectual Property Law and New Media
Spring, 2015Slide2
Mug Shots GaloreSlide3
Mug Shots Galore
Mug shots used to be “public” in theory but not practice
Now they are big business
Publishers obtain mug shots and create searchable databases
Subjects who are “not guilty” are offered opportunity to pay publisher to remove photo
Waive of legislative initiates to curb exploitation of mug shotsSlide4
Section 230 – Website Solicited Content
Jones v. Dirty World Entertainment
, 755 F.3d 398 (6
th
Cir. 2014)
Summary from the Digital Law Media Project:
http://www.dmlp.org/threats/jones-v-dirty-world-llc#descriptionSlide5
Jones v. Dirty World Entertainment
, 755 F.3d 398 (6
th
Cir. 2014)
High
s
chool teacher and former cheerleader is subject of unwelcome posts on www.The Dirty.com
Site operator contributes some commentaryTrial court says TheDirty is a publisher and not immune under Section 230Teacher wins $38,000 in actual damages and $300,000 in punitive damages at trialSlide6
Jones v. Dirty World Entertainment
, 755 F.3d 398 (6
th
Cir. 2014)
On appeal, Sixth Circuit reverses district court on Section 230
Sixth Circuit held
district
court erred in finding that the website operators were the “creators” or “developers” of the content at issue and also erred in adopting an “encouragement test of immunity under the CDA”Slide7
Jones v. Dirty World Entertainment
, 755 F.3d 398 (6
th
Cir. 2014)
Richie and TheDirty.com did not author the statements at issue, even though they selected them for publication.
Jones had not alleged that Richie’s own editorial comments were defamatory.
Failing to remove the defamatory content could not be found to materially contribute to the content. The CDA expressly bars “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content
.”Richie and TheDirty.com did not require users to post illegal or actionable content as a condition of use.The name of the website does not suggest that only illegal or actionable content will be published.
Richie and TheDirty.com did not pay users to submit unlawful content.The website’s content submission tools were neutral in both orientation and design as to what third parties submit.Slide8
Libel Suits Against Rating Websites
Grand Hotel Resort v.
TripAdvisor., 11-cv-549
(E.D. Tenn. Aug. 22, 2012)Slide9
Grand
Hotel Resort v. TripAdvisor., 11-cv-549
(E.D. Tenn. Aug. 22, 2012
)
District Court grants TripAdvisor’s motion to dismiss
“Dirtiest Hotels” is non-actionable opinion – unverifiable rhetorical hyperboleSlide10
Rights of Publicity and Social MediaSlide11
Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)
Background
FB launches “Sponsored Stories” on 1-25-11
When FB users “like” a product, their names and images automatically appear on “friends” pages under “Sponsored Stories”
With the launch, FB updated its terms:
Users give FB “permission to use your name and [FB] profile picture in connection with commercial, sponsored, or related content. . .”
Zuckerberg touts product:
“Nothing influences people more than a recommendation from a trusted friend”
“A trusted referral is the Holy Grail of advertising.”Slide12
Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)Slide13
Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)
Consumer class action filed in the Northern District of California
Class: all people who registered to use FB as of 1-24-11 and whose names, photographs, likenesses were used in Sponsored Stories
Claims:
Violation of California Right of Publicity statute
Violation of California Unfair Competition statute
Common law unjust enrichmentSlide14
Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)
FB files motion to dismiss under 12(b)(1) and 12(b)(3)
Lack of Article III standing
Immunity under Section 230 of CDA
Failure to state a claimSlide15
Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)
Ruling on MTD
No immunity under Section 230 of CDA
While FB was an “interactive computer service,” its conduct of creating a “like” button and publishing user’s names and images as sponsored stories made it an “information content provider.” Slide16
Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)
Ruling on MTD (cont’d)
Right of Publicity – MTD denied
Not newsworthy
Fact issue on consent
Sufficient allegation of injurySlide17
Frayley
v. Facebook, 11-cv-01726 (N.D. Cal.)
Case
settles after ruling on motion to dismiss.
FB pays $20 million into settlement fund
FB changes certain terms of useSlide18
Frayley v. Facebook, 11-cv-01726 (N.D. Cal.)
Take-away from case:
Use of users’ names and likenesses for commercial endorsement purposes in social media poses risk of ROP claims.
Obtaining consent by changing terms of use may mitigate claims, but perhaps only prospectively.Slide19
Perkins v. LinkedIn
, 13-cv-4303 (N.D. Cal.)
Plaintiffs accuse LinkedIn of hacking into their emails and sending multiple messages to harvested email addresses to invite people to join
Plaintiffs accuse LinkedIn of improper
use
of
names,
photographs, likenesses, and identities of Plaintiffs for the purpose of generating substantial profits for LinkedlnSlide20
Celebrity TributesSlide21
Jordan v. Jewel
Jordan v. Jewel Food Stores, Inc.,
743 F.3d 509 (7
th
Cir. 2014)
21Slide22
Jordan v. Dominick’s
Jordan v. Dominick’s Finer Foods, LLC,
10-cv-407 (U.S. D.C. N.D. Ill)
22