IP Tech Knowledgy

Website operators that allow users to post content should think specifically about what they consider to be     “intellectual property” in considering what to take down pursuant to a valid complaint.  States and courts differ on how a “right of publicity” is treated.   The Terms of Service should reflect this.

Section 230 of the Communications Decency Act provides protection from liability to website operators for allowing its users to post most information.  Under Section 230(c), the operator is generally not considered a publisher of the offensive statements.  However, Section 230(e)(2) provides an exception for “intellectual property,” meaning website operators would be liable for intellectual property infringement posted on their site.  This is why operators should provide for takedown procedures when a third party complains about intellectual property infringement on the website.

There is an open issue in the courts as to whether a violation of someone’s “right of publicity” is considered “intellectual property” under Section 230.  There is even an open issue, including in Maryland, whether courts recognize a right of publicity at all.  

A right of publicity is generally the right to control the use of a person’s name, image and likeness.  With college sports allowing athletes to profit from their own NIL, and artificial intelligence generating images and voices to mimic specific people, the issue will become more prevalent, the uncertainty will become more confounding, and a website operator’s actions should be more careful.

The issue under Section 230 is whether the right of publicity is included in the definition of “intellectual property.”  A 2006 decision in the 9th Circuit that some courts have followed ruled that because right of publicity is not protected under federal law, and is an outgrowth of right of privacy laws, it should not be considered intellectual property under Section 230.  More recently, a 2021 case in the 3rd Circuit recognized the evolution of a right of publicity as more of property right and ruled that it was included in the 230(e)(2) definition as being “intellectual property.”  

In addition to the inconsistency among Federal Circuits in applying Section 230(e)(2), there is also inconsistency in how states define and qualify Right of Publicity.  Some states, like Maryland, have not even adopted it as a cause of action through statute or common law.  To the extent Maryland is willing to protect the misuse of someone’s persona, the courts express the harm as protecting a type of privacy right.

Because of these divergences, the governing law clause in the Terms of Service of the website, or where the plaintiffs and defendants reside, may significantly impact the outcome of a dispute.  Website operators should consider what laws may apply to them and draft their Terms of Service to address whether they will or will not include right of publicity claims as intellectual property they will take down.  If in doubt, use wording that allows for the option to address publicity rights by taking down the content.

The situation will remain in flux until it is cured by a Supreme Court decision, although SCOTUS just focused on other aspects of Section 230 in two cases during its 2023 Term, or clarifying legislation by Congress, although political forces have made Section 230 either a law to rescind, overhaul, or stay far away from.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com