Tuesday, April 3, 2012
Anne McLean, Northern Illinois University College of Law, has published Me.Com: The Growing Need for the Illinois Right of Publicity Act to Respond to Online Social Networks. Here is the abstract.
This Comment discusses the recent growth in prevalence of online social networks ('OSNs') in both personal and commercial contexts and, given the novelty and breadth of current issues surrounding OSNs, focuses analysis on problems that arise when attempting to locate a home for claims involving OSNs within the current Illinois publicity statute, the Illinois Right of Publicity Act. Of the thirty states that recognize the right of an individual to recover damages for the appropriation of his identity, Illinois is one of nineteen states to codify these rights by statute and adopts the majority view - extending protection to individuals without regard to their celebrity status.
Due to the pervasive nature of the media as emphasized throughout this Comment, the inevitable correlating rise in OSN-related litigation evidences the increasing significance of the issues raised. Most of these issues involve the implication of user publicity or privacy rights stemming from the exploitation or appropriation of a user’s online identity. While this is especially true when the user is a celebrity, this Comment provides an extensive analysis concerning the role OSNs play in the creation of a new breed of celebrity borne not of traditional media, but of an entirely novel form pioneered by OSNs. It argues that by providing a convenient interface and expansive network to share and communicate a digital persona to the public is in many ways beneficial, from a commercial standpoint, OSNs represent a highly viable medium enabling ready access to a highly vulnerable 'cyber-captive' audience.
Further, this Comment argues the extensive potential scope of such claims beckons the need for the Illinois court system to address the unique issues raised, particularly those involving a right of publicity based on the digital persona as a non-traditional notion of celebrity. This Comment provides an in-depth analysis of the 2011 Illinois case Maremont v. Fredman Design Group where an individual alleged damage to her publicity right under the Illinois Right of Publicity Act stemming from unauthorized postings to the individual’s OSN pages.
A discussion of several tests applied by courts around the United States as well as to the definition of the right of publicity in Illinois exposes many issues of significance yet to be tackled by the Illinois court system or recognized within the current Illinois statute. The Comment concludes arguing that, in limited circumstance, Illinois should recognize a digital right of publicity and proffers a tailored statutory revision incorporating a two-part analysis to be applied to claims implicating this right.
Download the Comment from SSRN at the link.