I have argued for years that social media will help redefine and expand the right of publicity–that common-law right to control the commercial exploitation of one’s personal identity–because the entire medium is premised on users’ identities. We saw a major milestone in this regard with the 2011 decisions in Cohen v. Facebook and Fraley v. Facebook, both out of the Northern District of California. Fraley was particularly important, because it was the first decision to resist a social media company’s efforts to dismiss a claim that it had infringed upon its users’ publicity rights. (It didn’t actually resolve the issue, because the case settled–but that happened only after the court refused to dismiss the case.)
Now the same court is back with a similar decision, this time in a lawsuit brought against a different social media titan. In Perkins v. LinkedIn, the plaintiffs are individual users of the site. When they created their accounts, LinkedIn harvested the email addresses of every person the user had ever emailed, received an email from, or been copied on an email with. According to the complaint, LinkedIn then sent a series of three invitations to each email address–using the name and photo of the new user to endorse the site.
According to plaintiffs, these solicitation emails were a commercial use of their likenesses, from which LinkedIn derived a commercial benefit. The court agreed, and rejected a number of the site’s arguments for dismissing the case. The Court found that plaintiffs have plausibly alleged “reputational harm” arising out of LinkedIn’s sending of reminder emails, and allowed them to allege “mental anguish” as well.
Perkins also reiterates one of the primary take-aways from Fraley (unsurprisingly, since Judge Koh authored both opinions)–specifically, that a recommendation from one friend to another has commercial value. Indeed, the evidence in Fraley showed that Mark Zuckerberg and other Facebook executives consider trusted referrals to be “the Holy Grail of advertising.” Judge Koh reminded the parties of this in her Perkins opinion, after quoting LinkedIn executives who proclaimed that “3.2 [is]how many emails you need to get before you sign up, and so we kept the email importer and it still works.”
This issue was relevant in Perkins opinion because it helped persuade the court of LinkedIn’s economic motivation for the reminder emails, which rendered them “commercial speech,” a category of expression that is easier to regulate under First Amendment case law. Yet in Fraley–and, ultimately, here as well–the real import of this holding is to support the argument that the LinkedIn users’ identities have commercial value. In most jurisdictions, that is a showing one must make before succeeding on a publicity rights claim.
After all, a defendant can’t very well gain commercial advantage by using something that has no commercial value. This is why, for most of its history, the right of publicity was something that only “celebrities”–who, by definition, are people who are marketable–had.
Social media has been one of the main factors disrupting the distinction between celebrities and the rest of us. Digital publishing, reality TV, and the internet gave every individual the means to gain fame, but the social media business model has been one of the first objective demonstrations of how to monetize the identities of ordinary individuals. By capitalizing on the relationships and trust that each person has with specific groups of other people, each individual user makes the site money in ways that only that person can. Therefore, at least within the context of social media, each person has an actionable right of publicity that can be infringed when the site goes too far in exploiting it.
At least, that’s the argument that plaintiffs are making–and, so far, winning.