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A country rap artist failed to show that Facebook Inc. used his name for commercial gain by displaying ads next to pages on its website criticizing his business practices, the California Court of Appeal ruled Aug. 9 ( Cross v. Facebook, Inc. , Cal. Ct. App., 1st Dist., No. A149140, 8/9/17 ).
Plaintiff Jason Cross, also known as Mikel Knight, alleged that the social network violated his right of publicity because it placed ads next to the “Families Against Mikel Knight” Facebook page and two other pages that used his name. He also brought claims of breach of contract, negligent misrepresentation, and negligent interference with prospective economic relations.
The case highlights the myriad ways that plaintiffs have tried to hold social media sites liable for the content of their users. Section 230 of the Communications Decency Act shields websites from third-party content, but it provides an exception for federal intellectual property-based claims. The right of publicity is a form of intellectual property, according to the court.
Facebook sought to dismiss the claims under California’s anti-strategic lawsuits against public participation (anti-SLAPP) statute. That law provides for a special motion to strike claims arising from protected free speech in connection with a public interest issue, if the plaintiff can’t show a probability of succeeding on the merits.
The lower court dismissed the contract and negligence claims but declined to dismiss the right-of-publicity claims. On appeal from both parties, the California Court of Appeal sent the case back to that court with instructions to end the litigation by striking the entire complaint.
The appeals court, in an opinion by Justice James A. Richman, said the lawsuit involved a matter of public interest because the Facebook pages discussed traffic accidents involving drivers, hired by Cross, who fell asleep behind the wheel while driving. Cross wouldn’t prevail on the contract and negligence claims because they are barred by Section 230, the court said.
Cross wouldn’t likely prevail on the merits of the right-of-publicity claims because his name didn’t appear in the Facebook ads and third-party users created the content on the pages, the court said.
Cross didn’t allege that any advertiser used his name or likeness, the court said. “He thus cannot establish that anyone, let alone Facebook, obtained an advantage through use of his identity.”
An attorney for Cross didn’t immediately respond to a Bloomberg BNA request for comment.
Punzalan Law PC represented Cross. Perkins Coie LLP represented Facebook.
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