Can Facebook Use Your Likeness Without Permission?

Facebook is seemingly always in legal hot water — and the case of one woman whose likeness was used without her permission might be enough to make your skin crawl. Karen Hepp is host to Philadelphia’s Good Day through Fox 29. A few years ago, she discovered that an image of her in a convenience store was pervasive on the Internet and being used as part of a Facebook advertisement on the dating App “FirstMet.” Naturally, she sued because she didn’t want friends and family to think she was a hussy.

Facebook proceeded to argue in court that it could not be held accountable due to the Federal Communications Decency Act (CDA), which says that service providers operating on the internet are not liable for third-party content. 

Hepp’s legal team fired back, arguing that the very same statute has limits on immunity when claims relate to intellectual property laws. They said that her initial claim was a just one, part of Pennsylvania’s right of publicity statute. 

The court eventually sided with Facebook’s counterclaim that the statute was limited to federal law — which of course didn’t apply in the state court. Facebook said that the CDA was proposed to make the internet strong and free, open to federal claims but not chained down or constricted by state claims. Federal law, therefore, standardized how Facebook and third parties could operate. 

An appeals court disagreed. 

They put the case in the context of IP law. The right of publicity does not allow the unauthorized use of someone else’s likeness or name, similar to how IP law prevents one company from stealing another company’s brand or other intellectual property. You can visit our website here for information or legal help on Intellectual Property Law, which can be quite intimidating to those who aren’t fluent. 

The appellate court used this argument to easily dismantle Facebook’s claim. This was made easier because the relevant laws did not expressly limit claims to federal law. State laws apply too. 

There was, however, a dissenting opinion. This judge stated that it would allow an influx of lawsuits against internet service providers. We expect the United States Supreme Court to decide this matter sometime in the future. For now, though, individuals have a lot more power in matters deciding how their own intellectual property or right of publicity cases are handled in court. Because now…there is precedent. 

Describing publicity rights claims, law professor Eric Goldman of the University of Santa Clara said, “It would be easier to establish a prima facie case that would survive a motion to dismiss than it would with other doctrines that are more rigorously defined. Courts may open up doors for lawsuits that would ordinarily be shut down by Section 230.”

Intellectual property attorney Naomi Jane Gray of Shades of Gray Law PC said, “Given platforms’ national, even international reach, it’s very problematic for them to have a differing set of liability standards on this question.”

Gray worries that some services will “shop” for states with the most favorable laws before heading to court.