The Fox 29 presenter had sued the web giants after a photo of her was used online without his permission.
When we first announced last September that Fox 29 presenter Karen Hepp had sued Facebook, Reddit and other Internet corporations for $10 million after a photo of her was used on various sites and Internet platforms without her permission, there were necessarily two schools of thought.
On the one hand, other people have defended him for confronting industry giants at a time when we are (or at least when we are) more involved than ever with virtual privacy. “Much bigger for her, ” wrote one reader. This kind of has to stop.
On the other hand, there were other people who said the case would not go anywhere. “She has no chance, ” said one of those readers.
Well, that last idea just prevailed. For now.
Last week, Federal Judge John Milton Younge downplayed the case. There have been many motions and memos and blah blah blah blah legal in the last 11 months. So let me sum it up.
In her complaint, the resident of the 49-year-old Merion Station explained that she had learned that a photo of her, allegedly taken at a convenience store in New York, was being used online without her permission. Specifically, the photo gave the impression of being a Facebook ad from a dating site that encouraged users to click to “meet and chat with single women.” Then there were the pornographic sections on Imgur and Reddit, where the photo also gave the impression. In Giphy, someone with too much free time manipulated the symbol to show a boy masturbating with Hepp. And the photo was also used in an erectile dysfunction ad.
Embarrassing, isn’t it? Especially since he only realized this when some of his colleagues and Executives at Fox 29 saw the photographs and took them away.
At trial, Hepp attempted to use a law known as “right of publicity.” This law necessarily states that a company can take the call or symbol of a user with an apparent advertising price and use it for advertising purposes without the user’s permission. So you couldn’t just open a cheesesteak store called Big Will’s and paste a giant neon statue of Will Smith by dining one of his cheesesteak above the store to sell more cheesesteaks. At least, without Smith’s permission. That’s pretty clear.
And the right to promote it doesn’t just apply to photos. Bette Midler sued Ford after the automaker hired one of Midler’s replacement singers to be a Midler sound in a voiceover that Midler herself had refused to make. Midler eventually won on appeal.
Where it becomes murky is when we communicate about social media platforms and where users provide content.
Through segment 230 of everything called the Communications Decency Act (CDA), an “interactive computer service” enjoys immunity from content posted through “external users”. That’s why you probably can’t sue the Inquirer if you post negative data about yourself in a story’s comment segment. You can simply sue the commentator. But the CDA protects the Inquirer.
And in Hepp’s case, it’s not as if Facebook itself deliberately and voluntarily posted Hepp’s photo without his permission. A dating app used your photo in an ad that ended up on Facebook as a bot or an Internet advertising service. Clearly the content of a third-party user.
But not so fast, Hepp’s lawyer Samuel Fineman of Cherry Hill argued. Fineman’s interpretation of the CDA concluded that the CDA provides an exception for claims of publicity rights, which other federal courts in the country disagree with. And in this case, so did the opinion in Hepp.
That said, the case was never thought of as through the Third Circuit Court of Appeals, the federal court covering Pennsylvania, New Jersey, and Delaware. And then Fineman’s just making it, a phone call. He plans to record it by the end of this month.
“It just wasn’t the right resolution for this circuit,” Fineman told Philly Mag. “We believe this is an incredibly vital factor for broadcasters, NFL players, MLB players, any public professional who negotiates their fame. Whether it’s Joel Embiid, Kevin or Karen Hepp, you’re interested in your own face.
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