Third Circuit Holds that Newscaster’s Right of Publicity Claim can Proceed against Facebook

By Jennifer E. Rothman
September 28, 2021

The Third Circuit in a 2-to-1 decision in Hepp v. Facebook has parted ways with the Ninth Circuit by holding that the Communications Decency Act § 230 (CDA § 230) allows right of publicity claims. This reversal of the district court allows the plaintiff Karen Hepp’s lawsuit to proceed against Facebook.

The case involves a lawsuit brought by Hepp, a Philadelphia-based news anchor, against Facebook, Reddit, and Imgur, when a photograph of her was used without permission in violation of Pennsylvania’s common law and statutory rights of publicity. (Note that the appellate court only reinstated her claim against Facebook, holding that there was no personal jurisdiction against the other defendants.)

Hepp’s complaint arose from the use of a photograph of her (taken without her permission by a convenience store security camera) in online advertisements for erectile dysfunction drugs and dating websites. Her objections included both market-based and personality-based concerns, including complaints that the uses of her likeness were sexually degrading.

The key legal question the Third Circuit considered was whether the right of publicity, and in particular Pennsylvania’s right of publicity, constitutes a form of “intellectual property” for purposes of interpreting the federal statute. Section 230(c) of the CDA immunizes “interactive computer service” providers from liability stemming from third-party content on their platforms. It provides that: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” However, Section 230(e)(2) provides that this exemption from liability does not apply to “law[s] pertaining to intellectual property.”

In 2007, in Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, the Ninth Circuit held that the term “intellectual property” as used in Section 230 refers only to federal intellectual property laws. Although several district courts subsequently disagreed with the Ninth Circuit’s interpretation, see, e.g., Atlantic Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009); Doe v. Friendfinder Network, Inc., 540 F. Supp. 2d 288 (D.N.H. 2008), the Third Circuit is the first appellate court to make a contrary holding. Like these district courts, the Third Circuit noted that Congress was perfectly capable of distinguishing between state and federal laws and by not doing so it meant to include both federal and state intellectual property laws.

The Third Circuit thought this a simple case in which the plain language of the statute settled the matter. The term “intellectual property” includes state IP laws on its face. The majority of the panel rejected Facebook’s claim that policy concerns could alter this obvious reading of the statute’s text.  

This conclusion set up a secondary holding.  If state IP laws are included, is the right of publicity a form of intellectual property? A majority of the panel concluded that it is. The panel pointed to numerous dictionary definitions of intellectual property that explicitly refer to the right of publicity as a form of IP.  The majority also highlighted the similarity of the right to trademark laws. Op. at 17, 19-20 (citing Edison v. Edison Polyform Mfg Co., 67 A. 392 (N.J. Ch. 1907) (suggesting that “there was no distinction between the intellectual property protections afforded a person’s name and trademark-like protections for likenesses used on a label”); Stacey Dogan & Mark Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan. L. Rev. 1161 (2006) (trademark law “is by far the closest analogy to the right of publicity”). The majority also contended that because the right of publicity shares similar goals with federal IP regimes, such as by providing important incentives to invest in “build[ing] an excellent commercial reputation for endorsements,” Op. at 15, it was in keeping with Congress’s objectives to allow IP claims, to allow right of publicity claims to proceed.

The majority noted that its decision was a narrow one because Hepp was famous, had documented commercial value, and the Pennsylvania right of publicity statute limits claims to those who have a “valuable interest” in their name or likeness that they have “developed through the investment of time, effort and money.” Pa. Ann. Stat. tit. 42 § 8316 [a]. In such instances, the right of publicity constitutes a form of intellectual property.

As a result of this narrowing, the court left open a number of important questions; in particular, whether Pennsylvania’s common law right is a form of intellectual property, whether other state publicity laws constitute IP, and whether claims brought by plaintiffs without established market value count as IP-based claims. Op. 21-22.

The majority dismissed First Amendment concerns by noting that Hepp’s claim arose in a context in which there was likely to be confusion as to whether she had sponsored the uses of her image. Op. at 21. Whether this dicta suggests a new requirement under First Amendment analysis of right of publicity claims in the Third Circuit or a limitation of the Pennsylvania statute is unclear.

Judge Cowen dissented from the panel’s holding that the right of publicity constitutes “intellectual property” as § 230 uses that term.  Instead, Cowen agreed with the Ninth Circuit and Facebook that that term only encompasses federal intellectual property rights. Cowen so concluded because of the driving motivations behind the passage of § 230 which would be undermined if variable state IP laws could produce unpredictable liability for internet companies.  Cowen also was highly skeptical of the value of the right of publicity (in contrast to the majority) as well as the suggestion that it was akin to trademark and other federal IP laws. Dissent at 22 (contending that while the “majority compares the right of publicity to patent, copyright, and (especially) trademark rights, they clearly are not the same thing.” Cowen is correct that the right of publicity is distinct from those rights, but that does not mean that rights of publicity are not a form of intellectual property, nor that it does not share some similarities, in some contexts, with those regimes.

This case is definitely one to watch as it may be reheard en banc or by the Supreme Court given the circuit split on whether state IP laws are included within the exemption from § 230 immunity.

It is also worth paying close attention to this decision and its potential aftermath for two other reasons.  First, it further signals a move away from enthusiasm for CDA § 230 and continued push back against Facebook and other intermediaries who are trying to escape liability and accountability that would adhere to them if they were not Internet-based.

Second, allowing right of publicity claims to proceed against online intermediaries will likely add to the uptick in right of publicity cases and highlight the problems created by a varying state-by-state approach to name and likeness rights. Perhaps this case will put pressure on Congress to consider a preemptive right of publicity statute.

Even if no further review of the Section 230 holding takes place, this case is not over. The Third Circuit’s decision does not mean that Facebook is now liable; instead, it places the case squarely back into the realm of common law analysis of secondary liability. Such an analysis could allow Facebook to escape liability for the unauthorized use of Hepp’s image if it is viewed as a distributor of the allegedly infringing third-party content rather than a publisher of the speech, and did not have reason to know of the infringement.  This could provide a welcome opportunity to allow the common law to evolve to meet the challenges of the Internet, a process Congress disrupted with the passage of the CDA Section 230.