Social networking websites are ubiquitous in modern culture and popular with people of all ages and demographics. Operators of this kind of site, which consist largely of third party generated content, are immune from many types of civil liability for third party postings under the Communications Decency Act. However, the Act does not immunize these providers from intellectual property right infringements. Recent court decisions suggest that this immunity exception may extend not only to federal intellectual property rights, but state intellectual property rights like the right of publicity. This Note will evaluate the emerging circuit split regarding state intellectual property liability for interactive computer service providers. After determining that the existing statutory scheme does not immunize these providers from state intellectual property liability, this Note will examine the problematic implications of right of publicity liability for social networking sites. This Note will then suggest two Congressional responses to this problem. First, it will analyze the incentives created by the various types of intellectual property rights to suggest that Congress should explicitly immunize interactive computer service providers from right of publicity liability in order to consistently promote the Communications Decency Act's policy goals. Second, Congress could establish a federal right of publicity in order to minimize problems of interactive computer service providers trying to comply with the law.
Rachel A. Purcell,
Is That Really Me?: Social Networking and the Right of Publicity,
12 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol12/iss3/5