Saturday, December 24, 2011

- Facebook may owe you $750, federal judge rules

SAN DIEGO. California Civil Code § 3344 entitles you to a minimum of $750 when somebody else knowingly uses your name, picture or likeness to advertise their products or services. On December 16, 2011, U.S. District Judge Lucy Koh refused to dismiss class action, Fraley v. Facebook, where plaintiffs sued Facebook for including their names and photographs in Sponsored Stories ads. Even though last month the FTC forced Facebook to make opt-out a default standard for privacy settings, Sponsored Stories do not have this option.

You are a star!
Facebook contended that non-celebrities have to show actual harm to prevail on a 3344 publicity claim. Ordinarily, courts grant the right-to-publicity protections to celebrities, or at least struggling models and entertainers who have some economic interest in their name and likeness, even if such interest is not worth much (or anything) at the time of lawsuit. Judge Koh rejected Facebook’s argument and noted that, basically, in the modern world of YouTube and Twitter we’re all “celebrity” enough for the purposes of publicity lawsuits.  The judge distinguished the recent Cohen v. Facebook, where the plaintiffs failed to establish that Facebook’s use of their names and photographs in Friend Finder had any commercial value.

Now what?
Now, the plaintiffs’ case is worth something but, before you sprint to the nearest courthouse, keep in mind that you’re probably not Lady Gaga or even Kato Kaelin, so even the full $750 is a long shot. Nevertheless, some of the plaintiffs, and especially their attorneys, are likely to see some money. This is because, once the judge refuses to throw the case out quickly on a motion to dismiss, the parties are entitled to “discover” each other’s evidence and anything that might lead to admissible evidence. FRCP Rule 26(b)(1). U.S. has some of the most generous civil discovery rules in the world. So, in Facebook’s case, that would mean spending enormous amount of resources to turn over huge amounts of material to the plaintiffs and go through a long trial unless Facebook settles the case.