Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

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Section 230: 27 Years Old and Still in the SpotlightIn our fourth installment of our six-part series examining Section 230—the segment of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from content created by third parties—we’ll examine some of the more contemporary judicial, legislative, and executive responses to the Act. Read our <a href="/topics/part-1-section-230-27-years-old-and-still-in-the-spotlight" target="_self">first</a>, <a href="/topics/part-2-a-section-230-27-years-old-and-still-in-the-spotlight-" target="_self">second</a>, and <a href="/topics/part-3-section-230-27-years-old-and-still-in-the-spotlight" target="_self">third</a> installments of this series to bring you up to speed on the conversation so far.Section 230 in the age of social media and the rise of user-generated content (UGC)In tandem with the rise of social media and the proliferation of user-generated content, we have recently witnessed numerous Section 230 cases throughout various jurisdictions.In <a href="https://casetext.com/case/fed-agency-of-news-llc-v-facebook-inc-1" target="_blank">Federal Agency of News LLC v. Facebook, Inc</a>. (N.D. Cal. Jan. 13, 2020), a Northern California district court rejected the notion that political speech is not covered by Section 230 immunity. The case concerned Facebook’s removal of user content belonging to the <a href="https://federalnewsnetwork.com/" target="_blank">Federal Agency of News</a> (FAN), which was allegedly tied to Russian government agencies seeking to undermine U.S. institutions. Specifically, the court stated that “[i]mmunity under the Communications Decency Act does not contain a political speech exception . . . . No distinction is made between political speech and non-political speech.” The court ultimately dismissed FAN’s suit with prejudice.In another case involving Facebook—and a case of first impression for the Third Circuit—a district court ruled that Section 230 protects against state-law claims regarding rights of publicity. In <a href="https://casetext.com/case/hepp-v-facebook-inc" target="_blank">Hepp v. Facebook, Inc</a>. (E.D. Pa. June 5, 2020), Karen Hepp, a television news anchor for FOX, brought right of publicity claims against several social media platforms for unauthorized use of her image. The photo in question was taken by a security camera in an NYC convenience store and subsequently used in online ads for erectile dysfunction and dating websites. The court held that Hepp’s statutory and common law right of publicity claims, both based on state law, were covered by Section 230—and in doing so, the court rejected Hepp’s argument that those claims were within the exception described by Section 230(e)(2). That important exception states that intellectual property laws are unaffected by Section 230, but the court aligned itself with Ninth Circuit precedent in holding that only federal intellectual property claims qualify for the exception. In the court’s view, extending the exception to state law intellectual property claims “would fatally undermine the broad grant of immunity provided by the CDA.” As we <a href="/2021/12/21/facebook-rebrands-as-meta-disables-facial-recognition-capabilities/" target="_self">reported previously</a>, <a href="https://today.westlaw.com/Document/Iaf5326271d1d11ecbea4f0dc9fb69570/View/FullText.html?contextData=(sc.Default)&transitionType=Default&firstPage=true" target="_blank">the Third Circuit of the United States Court of Appeals recently dismissed the case</a>, citing that each of these companies were protected and had immunity under Section 230 of the Communications Decency Act 0f 1996 (CDA). Read the full opinion of <a href="https://law.justia.com/cases/federal/appellate-courts/ca3/20-2725/20-2725-2021-09-23.html" target="_blank">Hepp v. Facebook, No. 20-2725 (3d Cir. 2021).</a>Account terminations in the age of Section 230: Distributor vs. publisher role continues to raise issuesIn <a href="https://casetext.com/case/domen-v-vimeo-inc" target="_blank">Domen v. Vimeo, Inc</a>., (2d Cir. March 11, 2021), Domen, a Christian pastor, published 89 videos on Vimeo promoting “conversion therapy” that were later flagged by Vimeo as violating its policy against promotion of “Sexual Orientation Change Efforts (SOCE).” After a warning period, <a href="https://blog.ericgoldman.org/archives/2021/03/important-second-circuit-opinion-says-section-230c2a-protects-online-account-terminations-domen-v-vimeo.htm" target="_blank">Vimeo terminated Domen’s account</a>. Domen sued Vimeo for several claims, including on anti-discrimination grounds, arguing that Vimeo had “restricted and censored [his] videos because [they] were based on a viewpoint regarding sexual orientation and religion with which Vimeo disagrees.” The court dismissed Domen’s suit, on Section 230 and other grounds, finding that:<ul><li>Vimeo was acting as a publisher and therefore qualified for Section 230 immunity: “Plaintiffs are seeking to hold Vimeo liable for removing Plaintiffs’ own content . . . . Vimeo plainly was acting as a ‘publisher’ when it deleted (or, in other words, withdrew) Plaintiffs’ content on the Vimeo website”;</li><li>Domen had no argument that Vimeo was applying its policy in a discriminatory manner: “the purpose of Section 230 was to insulate interactive computer services from liability for removing some content, but not other content . . . . There simply are no substantive allegations to support the notion that Vimeo somehow was targeting Domen because he is a ‘former homosexual,’ as Plaintiffs posit”; and</li><li>The anti-discrimination claims independently failed because Domen didn’t allege that Vimeo had the requisite discriminatory intent.</li></ul>Domen filed for appeal and, in March 2021, the 2nd Circuit affirmed the district court’s ruling, noting that <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank">subsection (c)(2) of Section 230</a> is a broad provision that forecloses civil liability for providers that restrict access to content they consider objectionable. The court also held that Section 230 does not require the restriction to take any particular form, meaning that Vimeo’s removal of Domen’s account after providing a warning was acceptable.Section 230 in the age of the #MeToo movement: Allegations, backlash, and immunity clauses continue to challenge “third party content”A New York district court recently considered the application of Section 230 to non-traditional online publishers, in <a href="https://casetext.com/case/elliott-v-donegan" target="_blank">Elliott v. Donegan</a>, (E.D.N.Y. June 30, 2020). The defendant, Moira Donegan, had started an electronic list of men in the media business who had allegedly committed some form of sexual violence. She titled her list “Sh**ty Media Men” and stored it on a cloud-based, publicly accessible spreadsheet. The spreadsheet went viral, unleashing a swift flurry of allegations with some 70 named men implicated in the spreadsheet. Major media outlets were poised to publish related stories. Among the men named was the plaintiff, Stephen Elliott, who claimed that the allegations about him on the list were false, and sued Donegan and a number of Jane Does for defamation.Donegan claimed that third parties had posted the statements about Elliot, and that she was therefore immune under Section 230. The court first examined whether Donegan was “a provider or user of an interactive computer service,” which is a threshold requirement for the Section 230 safe harbor. Likening the spreadsheet to a message board that allows individuals to post comments, the court held that Donegan did qualify as an interactive computer service provider.But the court was unable to determine, at least from the face of the complaint, whether the spreadsheet and its material were “third party content.” According to the plaintiff’s allegations, the defendant herself had fabricated and entered the spreadsheet item about him. If those allegations were true, then Section 230 would not apply. Based on this uncertainty, the court refused to dismiss, holding that Section 230 does not warrant the dismissal of a defamation claim where the plaintiff’s complaint did not “foreclose the possibility that defendant created or developed the allegedly unlawful content.”In part five of our series, we’ll continue to examine the criticism from both sides of the political aisle, as well as calls to reform or even repeal Section 230.

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions.











Anthony Ramirez

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

In our fourth installment of our six-part series examining Section 230—the segment of the 1996 Communications Decency Act (CDA) that immunizes online service providers from liability stemming from content created by third parties—we’ll examine some of the more contemporary judicial, legislative, and executive responses to the Act. Read our first, second, and third installments of this series to bring you up to speed on the conversation so far.

Part 4 – Section 230: 27 Years Old and Still in the Spotlight

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It is another win for social media platforms in the realm of the Communications Decency Act’s Section 230. In a case of first impression within the Third Circuit, the Eastern District of Pennsylvania in <a href="https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=3243&context=historical" target="_blank" rel="noopener noreferrer">Hepp v. Facebook</a> ruled that social media platforms are immune under the Communications Decency Act for right of publicity violations under state law by users of such platforms.Karen Hepp, a television news anchor for FOX 29 News, filed a complaint against several social media platforms, including Facebook, Imgur, Reddit, and Giphy (collectively, “social media defendants”), alleging that the social media defendants violated <a href="https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/42/00.083.016.000..HTM" target="_blank" rel="noopener noreferrer">Pennsylvania’s right of publicity statute</a> and Hepp’s common law right of publicity, based on such defendants’ “unlawful use of her image.”Two years before filing her complaint, Hepp discovered that a photograph of her was taken without her consent by a security camera in a New York City convenience store. The photograph was subsequently used in online advertisements for erectile dysfunction and dating websites. For example, Hepp’s photograph was featured: (a) on Imgur under the heading “milf,” and (b) on a Reddit post titled “Amazing” in the subgroup r/obsf (“older but still $#^able”). Hepp alleged that, as a public figure, she suffered harm from the unauthorized publication of her image on the platforms hosted by the social media defendants, but she did not allege that such defendants created, authored, or directly published the photograph at issue.In response to Hepp’s complaint, each social media defendant filed a motion to dismiss, asserting, among other things, immunity under <a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank" rel="noopener noreferrer">Section 230 of the CDA</a>. As we have noted in <a href="https://www.sociallyawareblog.com/2019/04/30/appeals-court-upholds-section-230-protections-in-case-against-grindr/" target="_blank" rel="noopener noreferrer">prior articles</a>, Section 230(c) provides a federal safe harbor for internet service providers against liability for content originating from third-party users and content creators. This safe harbor is not boundless, however. For example, Section 230(e)(2) carves out causes of action “pertaining to intellectual property.” Hepp attempted to use this exception to get around the Section 230 immunity afforded to the social media defendants, but the court was not convinced. Ultimately, the court sided with the social media defendants and granted their motions to dismiss.In reaching its decision, the court acknowledged the circuit split between the Ninth Circuit and several district courts over whether the CDA preempts state intellectual property claims. The court compared two cases: (i) a Ninth Circuit case, <a href="https://law.justia.com/cases/federal/appellate-courts/F3/488/1102/496805/" target="_blank" rel="noopener noreferrer">Perfect 10 v. CCBill</a>, which held that the CDA preempts right of publicity claims; and (ii) a case by the Southern District of New York, <a href="https://www.courtlistener.com/opinion/1888474/atlantic-recording-corp-v-project-playlist-inc/" target="_blank" rel="noopener noreferrer">Atl. Recording Corp. v. Project Playlist</a>, which reached the opposite holding of Perfect 10. In the end, the court reached the same conclusion as the Ninth Circuit—that the CDA preempts state law intellectual property claims, including state right of publicity claims. The court was persuaded by the Ninth Circuit’s reasoning in Perfect 10, stating that the inclusion of state law intellectual property claims within the exceptions of the Section 230 safe harbor “would fatally undermine the broad grant of immunity provided by the CDA.” Accordingly, the court held that Hepp’s statutory and common law right of publicity claims based on state law did not fall within the Section 230(e)(2) exception, and that only federal intellectual property claims meet the Section 230(e)(2) exception. With this decision, the Eastern District of Pennsylvania deviated from its neighbors, the First and Second Circuits, and aligned itself with the Ninth Circuit, by maintaining the robust protections of the CDA with respect to the scope of Section 230(e)(2).Given the unsettled issue of whether Section 230(e)(2) applies to all intellectual property claims (both federal and state), a plaintiff’s chance of success in asserting Section 230(e)(2) in response to a defendant’s motion to dismiss would likely vary from court to court. So, where do things currently stand amongst the circuits? The following is a status chart to help navigate the issue:<table width="0" style="width: undefined%; height: auto;"><tbody><tr><td width="90" style="width: undefined%; height: auto;">Circuit</td><td width="132" style="width: undefined%; height: auto;">Does the Section 230 safe harbor protect against state IP claims?</td><td width="402" style="width: undefined%; height: auto;">Case</td></tr><tr><td width="90" style="width: undefined%; height: auto;">First</td><td width="132" style="width: undefined%; height: auto;">No</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.courtlistener.com/opinion/1611596/doe-v-friendfinder-network-inc/" target="_blank" rel="noopener noreferrer">Doe v. Friendfinder Network</a> (D.N.H. 2008) (disagreeing with the Ninth Circuit’s decision in Perfect 10 that Section 230(e)(2) exempts only federal intellectual property laws from the operation of Section 230)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Second</td><td width="132" style="width: undefined%; height: auto;">No</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.courtlistener.com/opinion/1888474/atlantic-recording-corp-v-project-playlist-inc/" target="_blank" rel="noopener noreferrer">Atl. Recording Corp. v. Project Playlist</a> (S.D.N.Y. 2009) (denying defendant’s motion to dismiss by finding that Section 230(e)(2) does not immunize the defendant from plaintiffs’ state law claims)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Third</td><td width="132" style="width: undefined%; height: auto;">Yes</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.courthousenews.com/wp-content/uploads/2020/06/unauthorizedphoto.pdf" target="_blank" rel="noopener noreferrer">Hepp v. Facebook</a> (E.D. Pa. June 5, 2020)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Fourth</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Fifth</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Sixth</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Seventh</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.courtlistener.com/opinion/2371993/stayart-v-yahoo-inc/" target="_blank" rel="noopener noreferrer">Stayart v. Yahoo!</a> (E.D. Wis. 2009) (declining to decide on the question of whether Section 230(e)(2) applies to the plaintiff’s state law claims)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Eighth</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Ninth</td><td width="132" style="width: undefined%; height: auto;">Yes</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.leagle.com/decision/20071590488f3d110211584" target="_blank" rel="noopener noreferrer">Perfect 10 v. CCBill</a> (9th Cir. 2007)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Tenth</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Eleventh</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;"><a href="https://www.casemine.com/judgement/us/5914b511add7b0493477029b" target="_blank" rel="noopener noreferrer">Almeida v. Amazon</a> (11th Cir. 2006) (declining to determine whether the CDA preempts the plaintiff’s state law right of publicity claim)</td></tr><tr><td width="90" style="width: undefined%; height: auto;">Federal</td><td width="132" style="width: undefined%; height: auto;">Undecided</td><td width="402" style="width: undefined%; height: auto;">No case available</td></tr></tbody></table>As illustrated by the chart, the state versus federal intellectual property issue under Section 230(e)(2) is far from a decided matter amongst the courts. Finally, it is unclear how recent efforts by the legislative and executive branches to revoke, modify, or scale back the Section 230 immunity will affect future opinions of the courts, especially those courts for which the issue of the scope of Section 230(e)(2) would be a case of first impression. Only time will tell.

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District Court in 3rd Circuit Sides with 9th Circuit: §230 Protects Social Platforms from State Law Intellectual Property Claims

District Court in 3rd Circuit Sides with 9th Circuit: §230 Protects Social Platforms from State Law Intellectual Property Claims

It is another win for social media platforms in the realm of the Communications Decency Act’s Section 230. In a case of first impression within the Third Circui

Litigation

A federal district court in California has added to the small body of case law addressing whether it’s permissible for one party to use another party’s trademark as a hashtag. The court held that, for several reasons, the 9th Circuit’s nominative fair use analysis did not cover one company’s use of another company’s trademarks as hashtags. Whether a hashtag is capable of functioning as a trademark, the topic of <a href="https://www.sociallyawareblog.com/2016/07/18/trademarks-hashtags-as-trademarks-revisited/" target="_blank" rel="noopener">two of Socially Aware’s most popular posts</a>, is—of course—another issue entirely.In what The New York Times <a href="https://www.nytimes.com/2019/04/24/us/politics/supreme-court-class-arbitrations.html" target="_blank" rel="noopener">describes</a> as “the latest in a line of rulings allowing companies to use arbitration provisions to bar both class actions in court and class-wide arbitration proceedings,” the Supreme Court <a href="https://www.supremecourt.gov/opinions/18pdf/17-988_n6io.pdf" target="_blank" rel="noopener">held</a> that the employment agreements of workers at the lighting fixture retailer Lamps Plus can’t band together to sue the company for allegedly failing to protect their data. The <a href="https://www.nytimes.com/2019/04/24/us/politics/supreme-court-class-arbitrations.html" target="_blank" rel="noopener">details of the data breach</a> make for an interesting read.The U.K.’s data regulator has proposed rules that would prevent social media platforms from allowing children to “like” posts. <a href="https://www.cnbc.com/2019/04/15/social-media-like-button-may-be-stopped-for-children-in-uk-proposals.html" target="_blank" rel="noopener">Here’s why</a>.Officials in a Georgia city might pass a law that would allow elected and appointed officials and employees of the city to sue—at the city’s taxpayers’ expense—<a href="https://patch.com/georgia/atlanta/ga-city-officials-may-be-allowed-sue-social-media-critics" target="_blank" rel="noopener">anyone who defames them on social media</a>.Instagram influencer Gianluca Vacchi, who is not a fictional character, but—<a href="https://www.bloomberglaw.com/document/X5UTCPN0000000?bna_news_filter=ip-law&jcsearch=BNA%25200000016a4533d4e9a1ea4dfbb15c0002#jcite" target="_blank" rel="noopener">according the complaint</a> he filed in a federal court in New York—“an international social media celebrity, influencer, fashionista, and disk jockey” —is suing E*Trade for allegedly depicting a character in its commercials who is “stunningly identical” to him. The suit claims copyright infringement, Lanham Act false association and unfair competition, and violation of New York’s right of publicity and privacy.The Chinese social media company Weibo restored access to <a href="https://www.cnn.com/2019/04/17/tech/weibo-china-censorship-lgbt-intl/index.html" target="_blank" rel="noopener">this type of content</a> from its platform after significant backlash from its users.In the age of smartphones and social media, <a href="https://abovethelaw.com/2019/04/keeping-your-jury-from-social-media-contamination/" target="_blank" rel="noopener">what can trial lawyers do</a> to secure a jury that relied only on the evidence presented in court?<a href="https://www.mediapost.com/publications/article/335370/mcdonalds-installs-ai-powered-menus-to-predict-or.html?utm_source=newsletter&utm_medium=email&utm_content=readmore&utm_campaign=113751&hashid=NRXuC8pKmXtE-dqs2eMnXiesZog" target="_blank" rel="noopener">Artificial intelligence</a> is informing which items McDonald’s includes on its outdoor digital menu displays.The California State Bar is considering using artificial intelligence, too. The bar hopes that AI can help it to more efficiently determine which attorney misconduct complaints to pursue, and <a href="https://abovethelaw.com/2019/05/california-bar-exploring-opportunities-to-deploy-ai/" target="_blank" rel="noopener">perform a function that affects every wannabe lawyer</a>.Should Wendy’s put Spicy Chicken Nuggets back on its menu? Social media users have spoken (with some prompting from Chance the Rapper).

Trademarks as hashtags; influencer sues company allegedly depicting him in an ad; new uses for AI technology

A federal district court in California has added to the small body of case law addressing whether it’s permissible for one party to use another party’s trademar

Trademarks as hashtags; influencer sues company allegedly depicting him in an ad; new uses for AI technology

Advertising

Trademark

Artificial Intelligence

Data Security

Hacking

Fair Use

As consumers increasingly communicate and interact through social media platforms, courts have had to grapple with how to apply existing laws to new ways of communicating, as well as disseminating and using content. Sometimes, however, traditional legal standards apply to these new platforms in a straightforward manner. At least, that is what the court found in <a href="https://cases.justia.com/federal/district-courts/illinois/ilndce/1:2018cv02027/350557/118/0.pdf?ts=1551783529" target="_blank" rel="noopener">Dancel v. Groupon, Inc.</a>, a putative class action against Groupon, Inc., alleging that Groupon’s use of images originally posted on the social media site Instagram violated users’ rights under the <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2241&ChapterID=62" target="_blank" rel="noopener">Illinois Right of Publicity Act</a> (IRPA).Groupon, a website that offers consumers deals on goods and services, built a widget intended to provide its users a window into businesses for which Groupon offered deals. The widget used Instagram’s API to find photos that Instagram users had taken at particular locations, and then displayed those images under the deals offered on Groupon’s own website.  When a visitor to the Groupon page hovered his or her mouse over the Instagram images, the Groupon user could see the username of the person who posted the photo on Instagram and an associated caption, if there was one.Dancel, who maintains an Instagram account with the username “meowchristine,” took a selfie of herself and her boyfriend in front of a restaurant and posted it on Instagram with a <a href="https://www.lifewire.com/define-tagging-3486207" target="_blank" rel="noopener">tag</a> noting the name of the restaurant. Groupon later displayed this photograph, among others, in connection with its deal for the same restaurant.Dancel moved to certify a class of all persons in the United States who maintained Instagram accounts and whose photographs were acquired and used on a Groupon webpage for an Illinois business, and a subclass of all members whose likeness appeared in any such photograph.  The court, however, denied Dancel’s motion for class certification pursuant to <a href="https://www.law.cornell.edu/rules/frcp/rule_23" target="_blank" rel="noopener">Federal Rule of Civil Procedure 23(b)(3)</a>, which requires a plaintiff seeking certification to demonstrate that common questions of law or fact predominate in the class (as opposed to questions affecting individual members of the class).According to the court, there was no single, common answer as to whether Instagram usernames could establish the identity of a particular person under the IRPA. The use of an “identity” under the IRPA requires that the use be sufficient to identify the person to a reasonable audience, but the court found that the answer to this question was an individual one, making the claim inappropriate for a class action.While this ruling is informative with respect to the relatively narrow issue of class actions alleging violations of the IRPA based on the use of social-media handles and related images in a commercial context, the result might be different in other jurisdictions or with slightly different facts. State law governs the right-of-publicity, and variations in state statutes and state courts’ interpretations of common law rights could impact the outcome of a similar claim in another jurisdiction. For example, in California the common law right of publicity broadly interprets “identity” to mean anything that evokes a person’s identity. In addition, the court in Dancer dismissed without explanation the idea that a photo of a person would clearly “identify” that person under the IRPA for purposes of class certification, though it is not obvious that another court would reach the same conclusion.Moreover, the court’s ruling concerned the issue of class certification, but did not directly address the merits of the underlying right of publicity claim itself. While class actions present potentially greater liability for companies, even individual claims can be problematic. Accordingly, companies that use user-generated content in connection with their social media posts should take note of this case for the questions it did not answer, and assess their use of such content with an eye to the potential for publicity-rights-related claims.More generally, Dancel is a good reminder that user-generated content posted on social media platforms is not necessarily freely available for use in other contexts. We saw this in the well-known case <a href="//casetext.com/case/agence-france-presse-v-morel" target="_blank" rel="noopener">AFP v. Morel</a>, in which a wire service and photo agency were held to have infringed the copyright in photographs taken from Twitter without the permission of the photographer who posted them. And another recent case, <a href="https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2017cv03144/473371/169/" target="_blank" rel="noopener">Goldman v. Breitbart News Network, LLC</a>, <a href="https://www.sociallyawareblog.com/2018/03/12/social-links-inline-linking-to-tweet-containing-photo-could-constitute-copyright-infringement-proposed-california-legislation-could-restrict-website-operators-efforts-to-have-minors-consent/" target="_blank" rel="noopener">held</a> that merely embedding a tweet (i.e., linking to a tweet) containing a photograph without the photographer’s permission constitutes infringement.

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What’s in a (User)Name?

As consumers increasingly communicate and interact through social media platforms, courts have had to grapple with how to apply existing laws to new ways of com