Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

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Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

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Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

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Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

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Section 230 of the Communications and Decency Act provides broad immunity to online platforms for claims arising from hosting third-party content (though just how broad is a hot issue that the Supreme Court may decide this term in Gonzalez v. Google LLC). But Section 230(e) of the statute expressly excludes certain types of claims from the safe harbor, including “intellectual property” claims. Specifically, Section 230(e)(2) states “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.”




















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Court Holds That Section 230’s Carve Out for “intellectual Property” Does Not Apply to Publicity Rights Claim in New York | Socially Aware

J. Alexander Lawrence

<a href="https://www.law.cornell.edu/uscode/text/47/230" target="_blank">Section 230 of the Communications and Decency Act</a> provides broad immunity to online platforms for claims arising from hosting third-party content (though just how broad is a hot issue that the <a href="https://www.sociallyawareblog.com/topics/supreme-court-to-address-section-230-for-first-time" target="_blank">Supreme Court</a> may decide this term in <a href="https://www.scotusblog.com/case-files/cases/gonzalez-v-google-llc/" target="_blank">Gonzalez v. Google LLC</a> ). But Section 230(e) of the statute expressly excludes certain types of claims from the safe harbor, including “intellectual property” claims. Specifically, Section 230(e)(2) states “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.”However, even Section 230(e)(2)’s express statutory language has been a source of controversy, with some courts holding that it applies only to federal intellectual property claims, and others holding that it covers both federal and state claims. Just over a year ago, the Third Circuit in <a href="https://casetext.com/case/hepp-v-facebook-2?" target="_blank">Hepp v. Facebook</a> held that Section 230(e)(2) applies to both federal and state intellectual property claims, and that, accordingly, the Section 230 safe harbor did not bar a right of publicity claim under Pennsylvania law. The Ninth Circuit, on the other hand, held in <a href="https://casetext.com/case/perfect-10-inc-v-ccbill-llc-5?" target="_blank">Perfect 10, Inc. v. CCBill LLC</a> that Section 230(e)(2) applies only to federal intellectual property claims. Therefore, according to the Ninth Circuit, state law claims are not excluded from the safe harbor, and Section 230 did bar the plaintiff’s publicity rights claim under California law.Now we have a case from New York—<a href="https://casetext.com/case/ratermann-v-pierre-fabre-us-inc-4" target="_blank">Ratermann v. Pierre Fabre U.S., Inc</a>.—that puts a new spin on the issue by holding that Section 230(e)(2)’s intellectual property exception does not apply to a New York statutory right of publicity claim because such a claim is not an intellectual property claim at all. In Ratermann Judge Furman of the Southern District of New York held, as a matter of first impression, that publicity rights and privacy claims under <a href="https://www.nysenate.gov/legislation/laws/CVR/50" target="_blank">Sections 50</a> and <a href="https://www.nysenate.gov/legislation/laws/CVR/51" target="_blank">51</a> of the New York Civil Rights Law are not “intellectual property” claims and are, therefore, barred by Section 230 immunity.Plaintiff Patty Ratermann, a fashion model, signed a single-use license with defendant QuickFrame, giving QuickFrame the right to use her likeness on Instagram. Ratermann alleged that she later discovered her likeness being used to advertise defendant Pierre Fabre’s Avène products, without her knowledge or consent, on the Avène website, on the websites of defendants Amazon, Walmart, and Ulta, and in the stores of defendant Walgreens. Ratermann sued all the defendants, alleging, among other things, that they violated her right to privacy and/or publicity under Sections 50 and 51 of the New York Civil Rights Law.Amazon, Walmart, and Ulta moved to dismiss Ratermann’s suit under Section 230(c)(1), which provides that “no provider or users of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” A defendant is shielded from liability under Section 230 if the defendant can prove that: (1) it “is a provider . . . of an interactive computer service[;] (2) the claim is based upon information provided by another information content provider[;] and (3) the claim would treat the defendant as the publisher or speaker of that information.”Judge Furman concluded that all three elements of Section 230 were satisfied, but the analysis did not end there. As noted above, Section 230 includes certain exceptions, one of which is for “intellectual property” claims. Judge Furman held that Ratermann’s privacy/publicity claims under New York law did not fall within the intellectual property exception.Judge Furman reviewed New York state case law and concluded that “New York courts have long construed Sections 50 and 51 to provide a statutory right to privacy, not property” and that “the ‘right of publicity’ is encompassed under the Civil Rights Law as an aspect of the right of privacy.” Relying on New York state court’s decision in <a href="https://casetext.com/case/gautier-v-pro-football-inc-1?q=%22Gautier%20v.%20Pro-Football,%20Inc%22&jxs=ny&sort=relevance&p=1&type=case&resultsNav=false" target="_blank">Gautier v. Pro-Football, Inc.</a>, Judge Furman found that Sections 50 and 51 “created a limited right of privacy” and “provided primarily a recovery for injury to the person, not to his property or business.” Thus, he held that Amazon, Walmart, and Ulta were entitled to immunity under Section 230.As noted above, courts considering the application of Section 230 to similar laws in other states have come to different conclusions. For example, in <a href="https://casetext.com/case/hepp-v-facebook-2?" target="_blank">Hepp</a>, the plaintiff Karen Hepp, a news anchor, found that an image of her, taken without her knowledge or consent, was posted in advertisements on Facebook and other social media platforms. Hepp brought claims against Facebook and other social media companies for violation of her statutory right of publicity under Pennsylvania law. The Third Circuit held that the “ordinary legal meaning” of the term “intellectual property” includes the right of publicity. Therefore, Hepp’s claim fell within the Section 230(e)(2) exception and was not barred by Section 230. Both the Hepp court and the Raterman court cited <a href="https://casetext.com/case/zacchini-v-broadcasting-company?" target="_blank">Zacchini v. Scripps-Howard Broadcasting Co.</a>, a 1977 U.S. Supreme Court case, as support for their divergent conclusions.In Hepp, the Third Circuit cited Zacchini for the proposition that “the right of publicity is an individual property right that is ‘closely analogous to . . . patent and copyright’ because it focuses ‘on the right of the individual to reap the reward of his endeavors and [has] little to do with protecting feelings or reputation.’” Relying on Zacchini and a New Jersey case holding that the unauthorized use of Thomas Edison’s picture constituted an endorsement for a product he did not sell, the Third Circuit concluded that trademark and the right of publicity are “close analogues.” Therefore, the court held that the unauthorized use of Hepp’s likeness in online advertisements “misappropriated the effort she spent to build a valuable reputation, so it could confuse consumers by suggesting she endorses the service” in the advertisement.Although Judge Furman in Ratermann agreed that Zacchini stood for the proposition that the common law right of publicity is analogous to patent and copyright law, he concluded that the interests protected by Sections 50 and 51, the New York statute at issue, were “entirely distinct from” common law right of publicity claims. Judge Furman held that Zacchini expressly stated that “[t]he interest protected in permitting recovery [under the New York statute] is clearly that of reputation, with the same overtones of mental distress as in defamation.”Another notable difference between the two cases is the courts’ analysis of the New York and Pennsylvania statutes protecting a person’s right of publicity. In determining whether the right of publicity is an intellectual property right, Judge Furman did not discuss or refer to the statutory language of Sections 50 and 51. Rather, he focused on New York state court precedent interpreting Sections 50 and 51 and concluded that “these authorities leave no doubt that a claim under Sections 50 and 51 . . . sounds in privacy, not intellectual property.” In contrast, the Hepp court quoted the Pennsylvania statute’s language that provides a right of publicity cause of action for those whose likeness “is developed through the investment of time, effort, and money.” While Judge Furman held in Ratermann that Section 230(e)(2)’s intellectual property exception does not apply to claims under Sections 50 and 51, he did not reach the broader question of whether the intellectual property exception applies to state intellectual property claims at all. In contrast, the Ninth Circuit in <a href="https://casetext.com/case/perfect-10-inc-v-ccbill-llc-5?" target="_blank">Perfect</a> 10 held that, because Section 230 does not contain any express definition of “intellectual property,” the term “intellectual property” in Section 230(e)(2) must mean “federal intellectual property.” Although the <a href="https://casetext.com/case/comedy-iii-productions-v-gary-saderup-inc-2" target="_blank">California Supreme Court</a> has held that the right of publicity is a form of intellectual property, the Ninth Circuit reasoned that, because there is no uniform definition of “intellectual property” across the states and that content on a website may be viewed across the Internet in more than one state at a time, “permitting the reach of any particular state’s definition of intellectual property to dictate the contours of this federal immunity would be contrary to Congress’s expressed goal of insulating the development of the Internet from the various state-law regimes.”The Ratermann decision reminds us that, as the Internet continues to evolve, judicial construction of Section 230’s scope and limitations remains in flux. Nearly thirty years after Section 230 was enacted, courts continue to grapple with novel issues regarding its scope, including the scope of the “intellectual property” exception in Section 230(e)(2).

Court Holds That Section 230’s Carve Out for “intellectual Property” Does Not Apply to Publicity Rights Claim in New York

COURT HOLDS THAT SECTION 230’S CARVE OUT FOR “INTELLECTUAL PROPERTY” DOES NOT APPLY TO PUBLICITY RIGHTS CLAIM IN NEW YORK