Publicity Rights Gone Mad: Facebook Sued For Showing You Pictures Of Friends Without Paying Them

from the you-can't-be-serious dept

We've been talking a lot about the rise of "publicity rights," a new form of law often lumped into the "intellectual property" grouping. There are all sorts of problems with the concept of publicity rights and a bunch of them are highlighted in this new lawsuit, pointed out to us by Eric Goldman. A class action lawsuit has been filed against Facebook based on the bizarre claim that Facebook's Friend Finder feature violates users' publicity rights. The lawsuit complains:
To promote the use of its Friend Finder service, Facebook has and continues to post the names and likenesses of a user's friends on that user's Facebook.com page, using words to the effect that the user's friends "found friends using Friend finder," suggesting that the user also "Give it a try!" The friends whose names and likeness are used to promote Friend Finder have not actually consented to use their names and likenesses to endorse Facebook's Friend Finder service, nor does Facebook disclose to such users that Facebook intended to use their name and likeness to promote the Friend Finder service to others.
Think about that for a second. This is, of course, the inevitable logical conclusion of ridiculous publicity rights claims. You would not be able to show (accurately) anyone who used a service without first getting their permission for it. That seems pretty ridiculous. I doubt this lawsuit will get anywhere, but if it actually does gain some traction, perhaps people will finally start to realize what a slippery slope publicity rights create.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Transbot9, Nov 30th, 2010 @ 10:02am

    They could get nailed for false advertising, though...

    Facebook's TOS probably allows them usage, but I have had freinds show up on Freind Finder Ads who never used that service. It's a problem on Facebook, as it falsely attributes endorsement where none exists.

    So on one hand, if Facebook wins it scores a point against Publicity Rights nonsense. On the other hand, if Facebook loses it is a win verses the questionable legality of TOS services.

     

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  2.  
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    Anonymous Coward, Nov 30th, 2010 @ 10:25am

    So.. what's the difference between say, Weight Watchers or Jenny Craig picking out client photos based on location and doing a mass mailing to neighbors?

    "These people lost weight with us, you should give it a try!"

    No one would have consented, no one would have been compensated for it and would feel their privacy is violated and sue.

     

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  3.  
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    Dark Helmet (profile), Nov 30th, 2010 @ 10:29am

    Re:

    A major component of Jenny Craig is socializing with others? Huh....

     

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  4.  
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    Berenerd (profile), Nov 30th, 2010 @ 10:30am

    Re: They could get nailed for false advertising, though...

    Actually, it puts your friend up there because you allowed a 3rd party program access to your friends list. The 3rd party would be the infringing body, not facebook. Facebook only does the friend finder option. IE if you go in to try and find a friend via email address and such. the "ads" are an actual 3rd party app that just gives you a friendlier GUI to do the search with.

     

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  5.  
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    Transbot9, Nov 30th, 2010 @ 11:08am

    Re: Re: They could get nailed for false advertising, though...

    Gee...a shadowy 3rd party abusing privlages that is rather questionable on whether or not they should have said privlages. As if there haven't been problems with questionable authorization...

    I don't use apps either, and I've gotten Friendfinder ads with friends on them. Maybe they used some apps that are being abused. Either way, it's shady. While I realise that one should never put something online that you want to keep secret or maintain control over, that doesn't mean I have to like it.

    Facebook is responsible for the type of advertisments it runs on it's site. Pissant quality control is a poor excuse.

     

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  6.  
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    DogBreath, Nov 30th, 2010 @ 11:14am

    Facebook TOS

    I'm not a member of Facebook, but as posted in their TOS I believe it comes down to these two items:

    2. Sharing Your Content and Information

    You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:

    1. For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

    and

    10. About Advertisements and Other Commercial Content Served or Enhanced by Facebook

    Our goal is to deliver ads that are not only valuable to advertisers, but also valuable to you. In order to do that, you agree to the following:

    1. You can use your privacy settings to limit how your name and profile picture may be associated with commercial, sponsored, or related content (such as a brand you like) served or enhanced by us. You give us permission to use your name and profile picture in connection with that content, subject to the limits you place.

    It appears according to the TOS, if the class action members do not want their profile pictures used by Facebook's Friend Finder service, they can change their "privacy settings" to reflect that choice. A setting I bet Facebook doesn't have, so you are "opted-in" whether you like it or not.

    It seems the only winning move in the Facebook game is not to play.

     

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  7.  
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    I-Blz, Nov 30th, 2010 @ 11:14am

    Wha-huh?

    What I want to know is: who, exactly, filed this stupid suit in the first place? It may have been a user, but I doubt an user would have the bearings to take on a megacorp like FB. So who filed it, then?

     

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  8.  
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    jenningsthecat (profile), Nov 30th, 2010 @ 11:21am

    Re:

    Actually, I'm pretty certain that Jenny Craig, Weight Watchers, et al DO get permission from their customers before using their names or pictures in endorsements.

    To my way of thinking, Facebook is in a situation very similar to, and possibly legally equivalent to, that of a commercial photographer who must obtain model releases from all identifiable parties in a photo, before publishing the photo for any purpose other than journalism.

    Ignoring for the moment what Facebook's TOS may stipulate, using people's names and pictures without their consent, as an implied or stated endorsement of a product or service, either is or should be legally actionable. And aside from the legal aspects, it's a crappy thing for Facebook to have done; but in Facebook's short history there's no shortage of crappy actions and policies.

     

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  9.  
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    out_of_the_blue, Nov 30th, 2010 @ 11:55am

    Or, it's Facebook's imaginary "rights" gone mad.

    For any website, Terms Of Service don't over-ride common law, because they're simply text that a *machine* puts out. In fact, by making the machine publicly available, Facebook loses rights in the machine, without the least obligation or agreement upon users that isn't in *common* law. -- It's no more binding an agreement than using a blood pressure machine that pharmacies often provide. -- The *only* way that TOS are effective is if people foolishly think they're bound by them, and it's a pernicious plot to put that fraud over (court cases included). Otherwise, common law applies against breaking the machines, but wear and tear is entirely a problem for the owner. Why and whether the owner puts a machine out for public use is *their* concern, not a user's. There's nothing magical about Facebook or any web site because it's on the internet, people need to get over the notion that the rules are totally different because it's *computerized*.

    And that brings me to the commercial aspects. If Facebook derives income from this practice, however obliquely -- that they're doing it is proof enough -- then like any other commercial venture, they operate only within public interest and the canon of *commercial* law, which is stricter (in theory; corporations can and do commit murder with impunity) than common law. So I think the case is well based.

    Mike, of course, continuing his corporatist shilling, tries to dismiss any such claims as "ridiculous".

     

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  10.  
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    Anonymous Coward, Nov 30th, 2010 @ 11:59am

    Re: Re:

    Wait wait wait, why would you want to even want to ignore what Facebook's TOS stipulates, in any hypothetical situation? I mean, the entire crux of either side of the argument hinges on whether Facebook has the right to use the names/pictures.

    Which, by the way it does:
    http://www.facebook.com/terms.php
    "For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it."

     

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  11.  
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    Anonymous Coward, Nov 30th, 2010 @ 12:06pm

    Re: Or, it's Facebook's imaginary "rights" gone mad.

    So, if you use my service where I display your photos for free on the internet, by agreeing to give me a license to display your photos on the internet, you can sue me for displaying your photos on the internet?

     

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  12.  
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    Anonymous Coward, Nov 30th, 2010 @ 12:31pm

    Re: Or, it's Facebook's imaginary "rights" gone mad.

    What? Someone lied to you. Like, a lot.

     

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  13.  
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    Amaress, Nov 30th, 2010 @ 12:36pm

    Re: Or, it's Facebook's imaginary "rights" gone mad.

    Short trip to wikipedia...

    TOS:

    "Terms of service (commonly abbreviated as ToS or TOS)[1] are rules by which one must agree to abide by in order to use a service. Unless in violation of consumer protection laws, such terms are usually legally binding."

    Consumer Protection Laws: (in case you get excited by that)

    "Consumer protection laws are designed to ensure fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors"

    Not much to do with publicity there...

     

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  14.  
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    Mike, Nov 30th, 2010 @ 12:49pm

    Those friends not even using friend finder

    I created a facebook account for my father, and the accounted has been logged into twice, both times by me. He has never used friend finder, he doesn't know how to even get to "the facebook". So I know when I see "Bill used Friend Finder and thinks you should too!" that it's complete BS.

    Run and tell that, homeboy.

     

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  15.  
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    Anonymous Coward, Nov 30th, 2010 @ 1:22pm

    Hmmm...

    So putting aside Friend Finder...would this mean FB could...per TOS...run an ad saying that said I tried viagra and loved it and suggest you do too? Or any other product (or maybe cause) you might not want to be assosciated with? Seems questionable to me, maybe I just don't get the TOS quite right in any event really nothing with FB ever surpises me. It's about money...not your rights or concerns.

     

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  16.  
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    Suzanne Lainson (profile), Nov 30th, 2010 @ 2:41pm

    Re: Re:

    Actually, I'm pretty certain that Jenny Craig, Weight Watchers, et al DO get permission from their customers before using their names or pictures in endorsements.

    They definitely do.

     

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  17.  
    identicon
    Jason, Nov 30th, 2010 @ 2:42pm

    Terms anyone?

    "you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook"

    It's been awhile, but I vaguely remember reading a reference to these when I signed up and having to click that I agree. It's not like other sites that just post a link at the bottom of the page and you are assumed to have agreed. You actually have to click.

     

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  18.  
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    Suzanne Lainson (profile), Nov 30th, 2010 @ 2:43pm

    Re: Those friends not even using friend finder

    That's what would concern me. If Facebook is using people's images to endorse a product that they haven't even used, it is fraud.

     

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  19.  
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    Jason, Nov 30th, 2010 @ 2:52pm

    Re: Hmmm...

    Yeah, as another commenter mentioned, this may fall under false advertising.

     

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  20.  
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    Joe Magly (profile), Dec 1st, 2010 @ 1:09pm

    Re: Those friends not even using friend finder

    Based on the TOS I the likeness can be used however the language used with the image may be questionable.

    Can an advertiser say that a specific person did x and "thinks you should to" when that never really happened?

    If the text said something like "Find more friends like Bill" or "You can find new and old friends using X" I would think that would be less of a problem.

    I would think that the use of the image combined with a false assertion could be problematic but likely in some legal grey area. IANAL

     

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  21.  
    identicon
    newbedave, Dec 1st, 2010 @ 2:33pm

    Re: Or, it's Facebook's imaginary "rights" gone mad.

    It all started when I was logged in to the Harvard website, where I was listening in to the conversations of the Harvard students. One of these students was Mark Zuckerberg who was talking about Face Smash and he had just broken up with his girlfriend at the time, so I struck up a conversation with this Mark Zuckerberg. He was talking about creating a dating site. I thought this was a bit odd - a pie in the sky idea since he had just broken up with his girlfriend and he was slagging her off - calling her a bitch and a whore.
    dave talked to Mark about the idea, and suggested he call it Face Mash. He was intrigued with my suggestion and thought it was a good idea. Mark wanted to call it Face Smash, because he wanted to smash his ex in the face. I convinced him that Face Mash was a good idea and he agreed, but one week later he changed his mind and wanted to call it Face Smash. When I queried him about this he replied 'f.... off you c...- I'm calling it Face Smash'. Two weeks after this conversation he came up with the name Mashable and when I asked him why he chose the word Mashable instead of Face Mash he said 'f,...off you bastard, Face mash is not your idea'. So I re-posted the conversations we had two weeks earlier and he had to apologise and said he was going with Mashable. I took this as a sign that he wanted to throw me off the scent and take the site for himself. dave found the character of Mark Zuckerberg to be deceptive and dishonest and ended conversing with Mark Zuckerberg because of his dishonesty and lack of integrity



    After this dave started conversing with Dustin and Chris about an idea of mine called Facebook for an online service where students can post pictures and information on themselves and use it as a directory. They were very intrigued by my idea and wanted to know more.
    dave told them that in the beginning, it would be an online service just for Harvard students, and then spreading through the other campuses in America, joining them up together. The idea was to make it easy for people to connect with other university students so they could get an idea of what other campuses were like, and even eventually spreading through the general public, giving them an idea of what was offered at the different campuses.
    Dustin and Chris were very intrigued with my idea and said they wanted to be on board.
    dave talked extensively about my ideas of Facebook and went into great detail of how to get it set up and started. They queried about the finance of setting it up and I told them I was in contact with Tony Robbins, who was interested by the idea and we were having discussions regarding his financial backing of the project

    So we needed a platform dave made contact with paul ceglia and was in discussion about a platform for my idea the facebook
    but zuckerberg was dustin & chris roommate and zuckerberg made contact to paul ceglia to steal the idea facebook
    paul ceglia had no legal right to sell the the platform to mark zuckerberg but zuckerberg new what he was doing when he sign the contract
    (paul ceglia had no legal right to sell the the platform to mark zuckerberg } the contract was to David not zuckerberg .

    And what are you going to do zuckerberg when paul ceglia wins you can call the contract a fake a counterfeit but you cant can you zuckerberg Yes you did sign a contract zuckerberg In a email zuckerberg called paul ceglia a dum sucker in 2003 i david posted a copy of to friend and he set it fee and the roomer spread years a go that zuckerberg had sign the contract and yes the abc news room have a copy of the email

    So zuckerberg what are your options zuck i suppose you can tell the truth you see paul cegia had no legal right to sell you the platform
    david was in contact to paul about a platform suitable for facebook but you wonted to steal facebook by stealth and you will have to tell
    your mother and farther and sisters how you stole the idea facebook yes pay back is a bitch zuck and your co conspire in this was dustin
    yes dustin you told zuck to shut up about facebook you little prick

    dave then found another contact at Harvard, called Eduardo Saverin and invited him to join me in developing my idea, and also to find out what was going on between Dustin, Chris and Mark . eduardo offered finance to get facebook up and runing but zuckerberg spent the money on him self selfish prick zuck spent eduardo saverin money and spat in his face your best friend

    So ass one last effort to save facbook david contacted sean parker At the time, he was running an online site called Napstar, and he was also working on another site called Wired Hog parker at the time was on the move moving in to a new address : I started conversing with
    sean parker about the idea facebook ; so i contacted the guys and gave them the new address of sean parker; and it was at this time zuckerberg was starting to argue with eduardo saverin: you see zuck had what he needed to steal facebook :{sean parker}


    Sean wanted 55% ownership of the project for his input so dave told him this was unacceptable and then he turned round and told Mark Zuckerberg had made him a better offer. dave told him that Mark did not own the idea of Facebook.
    He then got smart and asked me if dave knew what emails were and whether I could produce any evidence. dave took this as an attempt to see whether I could prove everything that took place and for him to use this as a weapon to see if he could gouge out as much interest in Facebook as he could, and he tried to play me off against Zuckerberg to get the maximum holdings of Facebook. I received an email from Parker saying that Zuckerberg had offered him 5% and was I interested in offering him more. At this point, I told him to **** off and that Facebook was not Zuckerberg's idea

    So dave found a site at Harvard called Harvard Connect (later, in 2004 changed to Harvard Connect To You) run by Cameron and Taylor Winklevoss, and dave explained everything about Facebook and the dealings with Zuckerberg, Dustin and Chris and how dave believed that Zuckerberg was in the process of stealing david idea, and I dave asked if the Winklevosses were interested in running Facebook on the Harvard site


    They expressed enthusiasm in the offer and liked the idea of running the site as they liked the concept of Facebook.They told me that they were going to change their site name and redesign it at that time (to Harvard Connect To You The person they called in to help them
    redesign their site was Mark Zuckerberg who then stole their platform : I told them that zuckerberg was a crook the winklevoss where to dumb and dupe by zuckerberg LooooooooL.
    And what do the winklevoss remind me off; its two building and the two buildings were the TWIN TOWERS you guys talk about the truth like you own the truth but you do not and never will .

    dave then went to Aaron Greenspan who was running house systems at Harvard and asked him (under an email non disclosure agreement) to run Facebook on his site which he agreed to do. aaron greenspan used the (info) to extort financal money out of facebook and zuckerberg paid the extortion money and dave call it extortion U see zuckerberg new aaron greenspan new zuck had stolen the idea facebook .I sent all the emails copy to aaron greenspan:{ aaron sold him self off like a hooker standing on a street corner } and what was that quotation aaron that quotation you set me about honour and truth you now the same bullshit the winklevoss are bullshiting on about

    zuckerberg then went on to create a FAKE CONNECT 2U account filled with FAKE information from the stolen platform he stole from the winklevoss Dave got a email from this FAKE CONNECT 2U account . but dave new it was FAKE it was zuckerberg .
    zuckerber wonted more info and idea to steal so dave gave one idea and it was to put a silver layer around the F word on facebook to see if zuckerberg was going to steal this idea and yes he did

    david then log a complaint to the FBI about this stolen fake connect 2u account with fake information and about mark zuckerberg
    dave posted a copy of the emails to ben mezrick and to david kirkpatrick as for kirkpatrick your book is a joke and so are you :
    you are just a fence jumper david kirkpatrick and its chris that is the gay one you dick 'you sold yourself out you were given the full story of how zuckerberg stole facebook; and sold out.



    the winklevoss contacted sumers at UV about zuckerberg but summers new the full story of how zuckerberg stole facebook and it was david idea ?
    there was coup organized by divyn narendra to over frow zuck from the idea FB but was a failure the winklevoss were to dumb yes dumb & dumber

    david kirkpatrick & ben mezrick were givin copes of the emails in and around 2004 and can confirm the story above ?



    david kirkpatrick was given all the emails and was made fully aware of how zuckerberg stole facebook from david in the beginning i gave kirkpatrick 80% of the emails kirkpatrick then ask if there was more ' yes there is more but ask kirkpatrick that he must reveal the truth the other 20% was email from paul ceglia to me dave made contact with paul ceglia and was in discussion about a platform for my idea the facebook
    as for kirkpatrick you are a prick

    in a email to eduardo i told him to get a lawyer zuckerberg was going to screw him over and told him to contact ben mezrick
    eduardo told me he had a lawyer he can trust but zuckerberg and the lawyer screwed him over

    So there we have it the full story of how facebook started:

    kirkpatrick falls victim to the bane of many business historians infatuation with the subject and the money

    SO ZUCKERBERG WHO IS THE DUMB FUCK NOW


    Tony Merchant may be contacted at 306-359-7777 . Jason Zushman can be contacted at 204-896-7777 .



    david made contact to merchant law merchant law contact lisa simmson & mark zuckerberg there are some interesting emails if you contact jason zushman you can get the email from him i left instruction to give the emails to every one ask for them this was done years a go



    dave posted a copy of the emails to ben mezrick and to david kirkpatrick

     

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