Link Of The Week- FaceBook Infringes On Publicity Rights



This is a link to an article about FB’s policy of using well known artists’ names in other people’s ads. Specifically as advertising keywords. This is something you should be aware of because Amazon has similar issues. So far, it looks like their stable of lawyers are keeping things at bay…….

Let me know what you think. I’m very curious!

One Response to Link Of The Week- FaceBook Infringes On Publicity Rights

  1. Here’s a response from a very famous author who is a lawyer!

    Because I suspect that this will raise questions in people’s minds, and
    because this is actually an era of relatively settled law, I want to
    explain the law in question. The article linked here in question is deeply
    incorrect in that it implies that there are federal rights of publicity and
    moral rights (there are not), and cites case law about the right of
    publicity that are not directly about keyword advertising, but fails to
    mention that the question of keyword advertising has been repeatedly
    litigated in the advertiser’s favor.

    First, the US is notoriously behind other countries in protection of moral
    rights. There is not really a federal moral rights law available to authors
    unless you squint very hard. This is true even though we are supposed to
    provide this by treaty. Articles that start with the assumption that we
    have such a thing, particularly by reciting non-self-executing treaties,
    should not be taken seriously.

    Second, just about every court that has considered the keyword advertising
    question (in regard to trademark, which is not the same thing as a right of
    publicity) has said that purchasing keyword advertising is not likely to
    result in confusion by customers, and so is not a violation of trademark.
    This publication is instructive:

    Click to access flj-v36-1-kilejian.authcheckdam.pdf

    Courts in states that provide a right of publicity have typically said that
    purchasing keyword advertising based on someone else’s name is not a
    violation of the right of publicity because it is not implying endorsement
    by that person without permission, the same way that using someone’s image
    with your brand superimposed over it is, but is instead the equivalent of
    erecting a billboard advertising your similar service in the vicinity of
    their office. (See this case from Wisconsin:

    Amazon, Facebook, Google, and everyone else who sells keyword
    advertisements have lawyers who are not only aware of the relevant law,
    they are the ones who crafted it via litigation in the modern era. They are
    certainly going to try to push the envelope, but any article that suggests
    that they are willy-nilly violating established law cannot pass the sniff
    test. They have been doing this for years There are very deep pockets on
    both sides. If there was a widespread violation of the right of publicity,
    the financial incentives are there, and they would already have been
    successfully sued by everyone whose interests are at play.


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