Riya's ROI: lawyers suing Flickr?

There has been some discussion recently about the legitimacy or otherwise of Riya as a buyout candidate by one of the GEMAYA giants, most notably Don Dodge asking what problem it solves. Following on from my post on what I fear is a looming legal crisis for Flickr, maybe Riya's main purpose will be discovery of evidence for lawyers prosecuting Web 2.0 image companies.

Let me explain. Here's what the EFF says about the right of publicity in its Legal Guide for Bloggers:

The right of publicity is a claim that you have used someone's name or likeness to your commercial advantage without consent and resulting in injury. The plaintiff generally must prove that you're using their image or likeness for advertising or other solicitations.

That's about as succinct as it gets, with the explanation that "injury" means financial injury, and "other solicitations" covers any products or services you sell. However, the Guide doesn't say much more on the subject beyond citing a few cases in brief. For the lawyers' side of the story, that was laid down in no uncertain terms by David L. Amkraut in a 2000 article entitled The 7 Deadly Myths of Internet Copyright. Remember that name. The right of publicity is actually a subcategory of the right to privacy, but Amkraut's article applies equally to publicity even though it is ostensibly about copyright.

Edward H. Rosenthal's contribution to a PLI handbook, Rights of Publicity and Entertainment Licensing, includes a section on the rights of publicity as specific to Web sites:

Content on web sites, including bulletin boards and chat, similarly do not require permission if not advertising in disguise. Stern v. Delphi Internet Services Corp., 165 Misc. 2d 21, 626 N.Y.S.2d 694 (Sup. Ct. New York Co. 1995) (chat-line). The chat-line concerned Howard Stern, a talk-show personality who at the time was running for governor of New York. The Court held that the chat-line, which permitted subscribers to use Stern's name in discussing Stern and his candidacy, was editorial content fully protected by the First Amendment. The Court, citing the leading case that deals with online services, Cubby Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), agreed that an online service, even one where only paid subscribers may access the information services, is like a book store or a letter to the editor column in a newspaper. No permission is necessary to use the name of an individual in connection with such material. In Cubby the Court held: “A computerized database is the functional
equivalent of a more traditional news vendor, and the inconsistent application of a lower standard of liability to an electronic news distributor... than that which is applied to a public library, book store or news stand would impose an undue burden on the free flow of information.” 776 F. Supp at 140. This of course goes to the chat service aspect of the Delphi service as opposed to a web site's editorial material, but a publisher's own editorial material is certainly entitled to the same protection as the letters to the editor. Daniel v. Dow Jones & Co., 137 Misc. 2d 94, 520 N.Y.S.2d 334, 340 (N.Y. Civ. Ct. 1987) (news and information aspect of online services are entitled to the same protection as a newspaper).

IMO, Flickr and its ilk can't claim editorial privilege. Their sole purpose is the dissemination of photos, and there is far less text associated with each photo than would qualify as significant editorial content. It would be a big stretch to argue that the comments section on each photo's page was similar to letters to the editor sections of newspapers. Also, it is almost certainly true that Flickr's use of photos of people, including many celebrities, is "advertising in disguise", as they gain financial advantage from account fees, advertising, and presumably the placement of links for Photoshow, Englaze, Zazzle and Qoop.

There have already been several cases involving the right of publicity and Web sites in California. Take this one in which the defendants (including Compuserve) settled for almost $1 million for posting 431 images of nude or semi-nude women, at $790 per photo. Notice the name of the prosecuting attorney: David L. Amkraut. Or there's this one which the prosecutor (there's that name again) won on appeal concerning 417 erotic photographs stolen from one porn site and put on another.

Those cases were brought during the last Internet boom. Who's to say the next boom won't see a spate of similar suits as lawyers like Amkraut see a new bunch of targets with big fat VC-pumped wallets? There are already blogging lawyers with their fingers on the pulse of this issue like Carolyn E. Wright, who writes the PhotoAttorney blog and mentions the right of publicity a lot. Her signoff to every entry is "Take my advice; get professional help."

Thus my suspicion that Riya will eventually be used by lawyers in compiling lists of photos of their clients on public Web sites with a view to suing the provider for profiting off their clients' likenesses. I'm sure Yahoo's lawyers did due diligence on this issue prior to acquiring Flickr. I'd be fascinated to hear their take on it. I want someone to tell me I'm barking up the wrong tree, particularly as it would make my job a hell of a lot easier with Tinfinger. IANAL, but I'm playing one on my blog. Someone tell me I'm wrong, please!