Right to Publicity and the California Court of Appeals: What to Know

state legislative historyRecently, the California Court of Appeals has overturned a ruling by the lower court on the controversial issue of the right of publicity that many had deemed to be dangerous for many digital giants like Facebook and Linked-In.

The right of publicity, also known as personality rights, is best understood as the right of an individual to prevent their image, name, or likeness from being used in a commercial capacity. The concept has been a part of California state legislative history since the Civil Code Section 3344 was enacted in 1971, but the digital age has introduced new challenges to what is and is not considered commercial use.

Think of any social media site. Chances are you will see the faces of private citizens and advertisements on the same landing page. Is that in violation to your right of publicity? What if a Facebook fan page is made for a musician without their permission? These are the questions that are fueling the debate in the California Court of Appeals.

While the debate is hardly new, it has recently been brought to a head with the lawsuit Cross v. Facebook. In the lawsuit, a country rap artist who uses the stage name Mikel Knight claimed that Facebook had infringed on his right of publicity among a host of other issues that arose from a user-created Facebook page that targeted the musician, called “Families Against Mikel Knight.”

The superior court had ruled that since Knight’s image was used on a page that included advertisement, Knight could legally argue that his right to publicity was being violated.

Critics were swift to denounce the court’s ruling. In a piece written after the decision was overturned, the Electronic Frontier Foundation attorney Daniel Nazer said, “If allowed to stand, the superior court’s ruling would have threatened a huge range of online expression. It would have effectively given people a veto right over speech about them that they didn’t like (as long as that speech appeared on a platform with advertising).”

Nazer lauded the California Court of Appeals decision to over rule the superior court’s decision, saying it was in line with state legislative history and previous court ruling.

But why did the Court of appeals arrive at a separate conclusion? The court did what state courts have been doing for over a hundred years: conducting state legislative history research and looking at the legislative intent behind the state statutes. A quick search will find a similar ruling in the case of magazines under nearly identical circumstances.

As Nazer noted, “the ruling places an important limit on the right of publicity and is a victory for online speech.”