On October 27, 2011, Judge Seeborg of the Northern District of California dismissed a putative class action complaint filed by a Facebook user against Facebook based on its use of his image in an online advertisement for Facebook’s “friend finder” feature. The case was previously dismissed on the grounds that the plaintiff had not alleged any cognizable harm, but the plaintiff filed an amended complaint claiming that he has an economic interest in his name and likeness, which Facebook was using for a commercial purpose. The court dismissed the case a second time for failure to state a claim that entitled plaintiffs to relief based on the fact that plaintiff’s name and likeness was merely displayed on the pages of other users who were already plaintiff’s Facebook “friends” and who would regularly see, or at least have access to, his name and likeness in the ordinary course of using Facebook. The court noted that non-celebrities do have a protectable interest in commercial use of their names and likenesses but that the plaintiff did not make a sufficient showing of harm.
Tip: Companies should ensure that they have permission before making using the name or likeness of any person, including non-celebrities, in advertising. The court’s decision in this case was based on the fact that the use of the plaintiff’s name and likeness by Facebook was only within its social networking site and only viewable by people who were already “friends” of the plaintiff.