PHILADELPHIA – The U.S. Court of Appeals for the Third Circuit has reinstated litigation from a local television news anchor who sued a series of social media entities for an alleged improper use of her image across the Internet, overcoming a federal law which usually prevents lawsuits against third-party providers of online content due to the case focusing on intellectual property rights.
“Good Day Philadelphia” anchor Karen Hepp has taken issue with social sites like Facebook and Reddit for featuring an image taken without her knowledge on several commercial websites, including one on an ad for erectile dysfunction.
Hepp first filed her complaint in the U.S. District Court for the Eastern District of Pennsylvania on Sept. 4, 2019, suing Facebook, Imgur, Reddit, Giphy, WGCZ S.R.O. and the owners of various websites and media outlets, named in the lawsuit as Does 1-10, for alleged violation of the state’s Right of Publicity statute.
Hepp alleged that her co-workers informed her two years ago that a security camera caught a snapshot of her in a New York City convenience store. That photo is said to have been used in online ads for erectile dysfunction as well as dating websites and other avenues, according to the lawsuit.
The picture was also included in a Facebook ad that implored users to “meet and chat with single women,” based on the complaint. Imgur allegedly posted the photo with the word “milf,” an inappropriate term related to attractive women with kids.
Reddit allegedly featured the photo in a subgroup called r/obsf.
Hepp also alleged, “The photo was modified and featured on Giphy wherein a video appears in the background of a man – who is hiding behind a glass commercial freezer door and masturbating – to what would appear, from his perspective, to the backside of the plaintiff.”
Lastly, the picture also made its rounds on XNXX in the “milf” gallery.
Hepp asked the court to bar the defendants and their related entities from publishing the photo, and to make them remove the ones that are currently present on their sites. She also wanted the defendants to have to show how much money they made from using her image.
U.S. District Court for the Eastern District of Pennsylvania John M. Younge granted motions for dismissal for several of the named companies, based upon Section 230 of the Communications Decency Act – which notes that third-party Internet content providers cannot be sued.
Hepp and her counsel appealed to the Third Circuit last August, participated in arguments before panel judges Thomas M. Hardiman, Peter J. Phipps and Robert E. Cowen on June 2.
Hepp’s counsel argued that Younge’s dismissal ruling from the District Court was in error, and that Hepp used creative and intellectual powers to create her public image via her professional persona on the air.
This point was the crux of plaintiff counsel Samuel Fineman’s argument that Hepp’s position was based in state law intellectual property rights – which would also serve as an exception to Section 230 of the Communications Decency Act, and allow her case to move forward.
Fineman compared Hepp to a professional athlete whose image has monetary value, a point of view which Hardiman did not share. Hardiman felt such matter could be considered property, but not of the intellectual variety.
Fineman disagreed, contending that professional sports leagues who earn revenue from the images of professional athletes would feel differently.
Meanwhile, attorneys for the defendant companies countered that the Third Circuit had no jurisdiction in the matter and that Hepp’s claims did not sound in intellectual property law.
Rather, the defense argued that Hepp’s claims originate from a right to privacy and that Pennsylvania has never recognized a right to publicity apart from privacy rights in its law.
UPDATE
On Thursday, Third Circuit judges Thomas M. Hardiman, Peter J. Phipps and Robert E. Cowen reinstated Hepp’s action, finding that while Section 230 of the CDA precludes many claims against Internet content providers, it has no such defense against cases centering on the matter of state intellectual property rights.
“In our view, Facebook’s interpretation strays too far from the natural reading of Section 230(e)(2). We disagree that ‘any law pertaining to intellectual property’ should be read to mean ‘any federal law pertaining to intellectual property,” Hardiman said.
“For her part, Hepp contends the right to publicity is an intellectual property right. And she argues that she ‘has dedicated considerable time, effort and money into building her brand.’ Her amicus adds that state courts have long recognized individuals have property interests in their personas.”
Meanwhile, Cowen concurred in part with the Court’s majority ruling, but also dissented in part.
“I concur in Section III (and Footnote 1 to the extent it affirms the District Court’s dismissal of the claims against WGCZ for lack of personal jurisdiction) of the majority opinion. However, I must respectfully dissent from Section IV of the opinion,” Cowen said.
“I believe that the ‘intellectual property’ exception or exclusion to immunity under Section 230(e)(2) of the Communications Decency Act of 1996, is limited to federal intellectual property laws (i.e., federal patent, copyright, and trademark laws) and – at most – state laws only where they are co-extensive with such federal laws. Because Hepp’s statutory and common law ‘right of publicity’ claims under Pennsylvania law are clearly not coextensive with federal intellectual property laws, the exception does not apply, and Facebook (as well as NKL Associates) are entitled to immunity.”
Cowen added that while the parties dispute whether the protections of Section 230 are still necessary and whether the negative consequences of immunity in this context (continue to) outweigh its positive effects, that these were matters for Congress, and not the courts, to address.
But Hardiman countered that the Third Circuit’s ruling in this matter is narrow and does not threaten to limit or curtail free speech.
“[This ruling] does not threaten free speech…Second, our holding does not open the floodgates. Pennsylvania’s statute is limited. For instance, it provides a right of publicity cause of action only for those whose valuable interest in their likeness ‘is developed through the investment of time, effort, and money,” Hardiman said.
Hepp seeks damages in excess of $10 million.
U.S. Court of Appeals for the Third Circuit case 20-2885
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-04034
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com