Twitter Or Tweeter: Who Should be Liable for a Right of Publicity Violation Under the CDA?

INTRODUCTION I. THE DEVELOPMENT OF THE RIGHT TO PUBLICITY. II. THE CDA AND ITS LEGISLATIVE HISTORY III. PURPOSE OF THE CDA. IV. EXAMINING THE JURISDICTIONAL SPLIT AS TO WHETHER [section] 230(E)(2) OF THE CDA INCLUDES BOTH STATE AND FEDERAL INTELLECTUAL PROPERTY LAW A. The Argument that "Intellectual Property" Under [section] 230 (e)(2) of the CDA Only Includes Federal Intellectual Property Law B. "Intellectual Property" Under [section] 230 (e)(2) of the CDA Includes Both State and Federal Intellectual Property Law V. THE PLAIN LANGUAGE AND THE UNDERLYING PURPOSE OF [SECTION] 230(E)(2) DEMONSTRATE THE RIGHT OF PUBLICITY SHOULD FALL UNDER THE INTELLECTUAL PROPERTY EXCEPTION OF THE CDA CONCLUSION INTRODUCTION In 2009, an unknown Twitter user created a fake account for Anthony La Russa, the manager of the St. Louis Cardinals, at twitter.com/TonyLaRussa. (1) The user posted "tweets," or updates, as La Russa, a few of which were vulgar and Cardinals-related. (2) The page also included a photo of La Russa and only one line on the page suggested it was fake, as the profile stated: "[b]io [p]arodies are fun for everyone." (3) La Russa tried to contact the site to have the phony page removed, but was unsuccessful, and filed the first suit of its kind against Twitter. (4) La Russa's complaint alleged trademark infringement and dilution, cybersquatting, and misappropriation, also known as a violation of the right of publicity. (5) Hours after the suit was filed, Twitter removed the fake page, and the case was eventually settled. (6) Similarly, Ron Livingston, Office Space movie star, recently filed suit after an anonymous Wikipedia editor repeatedly altered Livingston's Wikipedia entry so it stated that Livingston was homosexual. (7) A fake Facebook profile was also created for the actor, again alluding to homosexuality; Livingston suspected the individual who edited the Wikipedia page also created the profile. (8) When the media first reported this story, it was known the actor filed suit, but there was much debate as to whom he named as the defendant, Wikipedia and Facebook or the unknown individual responsible for posting the false information. (9) While the individual responsible for the post would normally be named as a defendant for a right of publicity violation regardless of Twitter's liability, in this instance, that person was unknown; thus, making it plausible that Livingston would seek restitution against Twitter. This debate occurred because of the lack of uniformity between the Circuit Courts as to how a particular provision, the intellectual property exemption, in the Communications Decency Act (CDA) should be interpreted. one circuit has held that the intellectual property exemption under the CDA only includes federal intellectual property rights, like copyright and trademark, while other circuits have held that the intellectual property exemption under the CDA includes both federal intellectual property rights and state intellectual property rights, like the right of publicity. A resolution of this jurisdictional split is important. If the intellectual property exemption under the CDA includes only federal intellectual property rights, then an individual whose right of publicity has been violated by another party posting on a website, such as Twitter, Facebook, or Wikipedia, may only seek restitution against the individual who posted the content. on the other hand, if the intellectual property exemption under the CDA includes both federal intellectual property rights and state intellectual property rights, then an individual whose right of publicity has been violated by another party posting on a website, such as Twitter, Facebook, or Wikipedia, may seek restitution against both the individual who posted the content and the internet service provider (ISP), Twitter, Facebook, or Wikipedia. …