Facebook and the Appropriation of Name or Likeness Tort

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4 Responses

  1. Derrick Kwa says:

    I’m not a lawyer or anything, but yes, I think that the terms and conditions of Facebook does give them the right to do so. Actually, it seems like it gives them the right to do almost whatever they want with your user content (includes your profile, etc). That is the main problem with privacy of Facebook, if you ask me. And too many people just skip the terms and conditions before signing up.

  2. Bruce Boyden says:

    Well, the EULA raises all sorts of interesting copyright/right of publicity issues. The language looks to me like a copyright grant, which was probably the intent. “User Content” is defined in the course of warning people not to post stuff they don’t have the rights to:

    You are solely responsible for the photos, profiles, messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, “post”) on or through the Service or the Site, or transmit to or share with other users (collectively the “User Content”). You may not post, transmit, or share User Content on the Site or Service that you did not create or that you do not have permission to post.

    There’s nothing in here that explicitly states that the user (and everyone in every photo) is granting the right to use their name and likeness for commercial purposes. But I said the issue was interesting because if we assume there is a valid copyright license here, at least one Circuit has held that any state law right of publicity claims are preempted: Baltimore Orioles, Inc. v. Major League Baseball Players Association, 805 F.2d 663 (7th Cir. 1986) http://www.law.uconn.edu/homes/swilf/ip/cases/baltimore.htm

  3. adam says:

    Interesting post, thanks!

    Do you have thoughts on how the ToS excerpt you quote intersects with their privacy policy? They make representations about giving you control of information you post to their site, but then also claim they can do with it as they wish.

  4. Let’s be honest: nobody read the terms and conditions because normal people like you and me would never guess something like “they’ll use my informations and my posted things in a malicious kind of way”. We actually think that it is just a common social network where you can share your life with friends and family and actually meet new people. And of course “they” know about it and that’s why in a point and two “they” do their best to be ambiguous or use terms that only lawyers would fully understand. We end up being victms or our own narcissist side.

    And that’s why I just deleted my own account in Facebook. I don’t own the Facebook owner anything neither I want him to use my image to whatever he would like to, and I am planning to keep things this way.