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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Right of Publicity - Internet Library of Law and Court Decisions - Updated May 29, 2008

165 Misc. 2d 21, 626 N.Y.S. 2d 694 (Sup. Ct. N.Y.Co. 1995)

Court held that defendants, which, for a fee, provided its customers with a wide range of services, including access to the Internet as well as bulletin boards, news and stock quotes, did not violate Howard Stern's right to publicity under N.Y. Civil Rights Law §§ 50 and 51 by utilizing a photo of Stern, as well as his name, to advertise a bulletin board "debate" discussing the merits of Stern's candidacy for governor. Such use was permitted because under N.Y. Civil Rights Law §§ 50 and 51 defendant was viewed as news disseminator which was using Stern's likeliness to advertise a news product -- its bulletin board.

78 Cal. App. 4th 362 (Cal. App., 2d Dist., Feb. 17, 2000)

The California Court of Appeals holds that a right of publicity claim asserted under California Civil Code Section 3344 seeking to stop an unauthorized third party from using photographs containing an individual's likeness is not preempted by federal copyright law, provided the claim is asserted against a party other than the holder of the copyright in the photograph.

266 F. 3d 64 (2d Cir., September 26, 2001)

The Second Circuit holds that a government employee has a reasonable expectation of privacy in an office computer located in his private office in light of the absence of both a computer usage policy advising him to the contrary, and a regular practice by his employer of searching the same.  The Court nonetheless holds that the government's search of its employee's computer for evidence of suspected work - related misconduct did not violate the employee's rights under the Fourth Amendment.  Such searches are permitted if the search is both justified at its inception and of appropriate scope.  Such was the case here, because the government had received notice of alleged job-related misconduct by the plaintiff employee and had conducted an appropriately circumspect inspection of his office computer to ascertain the validity of these allegations.

The Second Circuit also affirmed the dismissal of plaintiff's claims that both the government's failure to give him a pay raise, as well as its decision to demote him, violated his Due Process rights.  Such claims failed because plaintiff lacked the requisite property interest in either his job or raise to sustain a Due Process violation.

Quick Hits

Thais Cardoso Almeida v., Inc.
456 F.3d 1316, No. 04-15341 (11th Cir., July 18, 2006).

Eleventh Circuit holds that’s display of a book cover that contains an unauthorized photograph of plaintiff on a product detail webpage used to promote’s sale of the book is not a commercial use of plaintiff’s image under Florida’s right of publicity statute – Fla. Stat. 540.08 - and hence is not actionable thereunder.   As such, the Eleventh Circuit affirmed, on different grounds, the District Court’s grant of summary judgment to, and dismissed plaintiff’s statutory right of publicity claim arising out of such unauthorized display.  The Court’s decision was grounded on its determination that, to be actionable under Section 540.08, plaintiff’s image must be used to ‘directly promote’ the sale of a product.  Because’s use of the book cover containing plaintiff’s image was ‘merely incidental to, and customary for, the business of internet book sales’ it was not an actionable commercial use of that image within the meaning of the statute.   Said the Court:

Amazon provides its online customers with a searchable book database with links to product detail pages for each book in its database.  Each product detail page provides the book’s cover image, the publisher’s description of the book, and in many instances editorial and customer content.  From the product detail page, customers may link to an order placement page, where they may complete their purchase and specify the shipping method.  In this manner, Amazon’s role as an internet bookseller closely parallels that of a traditional bookseller.  Because internet customers are unable to browse through shelves of books and observe the actual book cover photos and publisher content, Amazon replicates the bookstore experience by providing its customers with online cover images and publisher book descriptions. …

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[W]e find that, as a matter of business practice, Amazon’s use of book cover images closely simulates a customer’s experience browsing book covers in a traditional book store.  Thus, it is clear that Amazon’s use of book cover images is not an endorsement or promotion of any product or service, but is merely incidental to, and customary for, the business of internet book sales. …

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Under the allegations of Almeida’s complaint, we discern no set of facts by which an internet retailer such as Amazon, which functions as the internet equivalent to a traditional bookseller, would be liable for displaying content that is incidental to book sales, such as providing customers with access to a book’s cover image and publisher’s description of the book’s content.  Accordingly, we affirm the district court’s grant of summary judgment as to Amazon’s right of publicity claim, but we do so on the ground that Amazon did not use Almeida’s image for the purpose of directly promoting a product or service in violation of section 540.08

The Court spent much of its opinion discussing, without deciding, whether the Communications Decency Act barred plaintiff from pursuing the instant right of publicity claim against Amazon.  More particularly, the Court grappled with the question of whether the statute’s ‘intellectual property law’ exception, found in Section 230(e)(2), permitted plaintiff to pursue a right of publicity claim on the ground that such was in fact an intellectual property claim within the meaning of the statute.  This section provides that “nothing in [section 230 of the CDA] shall be construed to limit or expand any law pertaining to intellectual property.”  Because the Court ultimately found that plaintiff could not sustain her right of publicity claim on the merits, it did not reach this question.

Finally, the Eleventh Circuit affirmed the dismissal of plaintiff’s civil theft claim, finding that plaintiff had failed to submit evidence sufficient to establish that Amazon acted with the requisite ‘felonious intent’ when it purportedly misappropriate plaintiff’s property – namely her image – for its own use to promote its sale of books.  The Court held that there was no evidence that Amazon was aware when it posted the book cover in question on its website that the publisher was not authorized to use plaintiff’s image on the book’s cover.  When plaintiff contacted Amazon and so informed it, Amazon promptly removed the book cover from its site.

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