The Anchor Plate : Intellectual Property Lawyers & Attorneys : BrickHouse Law Group : Open-Price Lawyering, Hourly Billing : St. Louis, Missouri

Earlier this month, U.S. District Judge Lucy Koh issued an important ruling in the Fraley case denying Facebook's motion to dismiss the right-of-publicity claims. Although the case is still young, Judge Koh's opinion is an excellent example of the challenge courts face in pouring old wine into new bottles. Here, the challenge is applying hoary principles of privacy law in the social media context, namely, to California's right of publicity statute, which provides that:

"Any person who knowingly uses another's name, . . . photograph, or likeness, in any manner . . . for purposes of advertising . . . goods or services, without such person's prior consent . . .shall be liable for any damages sustained by the person or persons injured as a result thereof"

Facebook sought dismissal of the right-of-publicity claim on 3 grounds: (1) Facebook members are "public figures" to their friends and thus their status updates fall within the 1st Amendment defense of "newsworthiness"; (2) Facebook members "consented" to this use of their identities when they accepted the Terms of Use, and (3) since the class members are are not "celebrities," they have suffered no economic injury because use of their identities has no commercial value.

Judge Koh rejected the "newsworthiness" defense. Citing to the Ninth Circuit's decision in Abdul-Jabbar v. GMC, she explained that even if the Facebook posters were "public figures" to their Facebook "friends," the First Amendment did not apply because Facebook has used their identities in the Sponsored Stories for purely commercial purposes. As for whether clicking on the "Accept" button for Terms of Use constituted consent to this use, the Judge found disputed questions of fact that could not be resolved on a motion to dismiss.

As for whether there was commercial value in the class members' identities, the Judge allowed Facebook's founder to explode that defense through his own words from a promotional pitch for Sponsored Stories:

Plaintiffs quote Facebook CEO Mark Zuckerberg stating that "[n]othing influences people more than a recommendation from a trusted friend. A trusted referral influences people more than the best broadcast message. A trusted referral is the Holy Grail of advertising."

Talk about a social media version Shakespeare's "hoist on his own petard."  Stay tuned. The case is young.