Is our DNA our own intellectual property by birthright?

A recent decision from the 3rd Circuit Court of Appeals is attempting to grapple with that very issue and has decided some state privacy laws protect image and likeness akin to the way federal law protects intellectual property.

The court has historically been divided on the issue, with the latest case; Hepp v. Facebook Inc, 3rd U.S. Circuit Court of Appeals, No. 20-2725, was decided in September 2021 after two appeals by the social media giant, yet ultimately sided with a woman seeking to hold Facebook liable for using and misappropriating her likeness.

The decision sets up a potential appeal to the U.S. Supreme Court and has seen several advocacy groups, many affiliated, funded and fiercely loyal to Facebook, submitting friend-of-the-court briefs asking the 3rd Circuit to rehear the case, again. If this sounds familiar, last summer the National Colligate Athletic Association (NCAA) introduced its interim policy relinquishing total control over the name, image and likeness of its student athletes.

A brief filed by a handful of groups said the decision “upends the legal landscape” and will force platforms to either adopt “draconian measures” to avoid bogus alleged intellectual property (IP) lawsuits or face “financial ruin” from litigation.

Back in 2018 Karen Hepp, who hosts FOX 29’s Good Day Philadelphia, sued Facebook after she learned a photograph of her was making its way around the Internet. The image clearly depicts Hepp smiling in the center of the frame’s foreground and was taken without her knowledge or consent. The photo was part of a Facebook advertising campaign by a dating App called FirstMet and encouraged Facebook users to “meet and chat with single women near” them.

Facebook asserted, as it has for more than a decade, that it is immune from any liability under Section 230 of the federal Communications Decency Act.
However, Hepp pointed to the Pennsylvania statute’s limit on the immunity for any claim arising under “any law pertaining to intellectual property (IP).”  That law provides that Internet service providers are not liable for content posted by third parties and Facebook noted that FirstMet posted the photo, not Facebook.

The case was dismissed in 2020 by U.S. District Judge John Younge, finding Facebook was immune from Hepp’s claims.

The 3rd circuit reviewed the case and U.S. Circuit Judge Thomas Hardiman, writing for the federal court’s latest ruling on 2-1 panel, agreed that Hepp’s state right of publicity is also an IP right.

Facebook argued, and the trial court agreed, that the statute’s reference to “any law pertaining to intellectual property” was limited to federal patent, copyright and trademark laws.

However, the 3rd Circuit was unmoved and ruled that the right of publicity – which prohibits the unauthorized use of name or likeness – is analogous to federal trademark law which also protects artists and brands from unauthorized use and profit by anyone. The court found that Pennsylvania’s right of publicity statute is also a “law pertaining to intellectual property,” and had to deny Facebook’s immunity claim.
In the 3rd Circuit’s view was that if Congress had intended to limit the exception to federal claims, it would have said “any federal law.” Since it did not, the court’s conclusion was that the immunity exception encompassed state law claims as well.

Facebook argued that the intent of the CDA, and the policy underlying it, mandated that the immunity exception be limited to federal law in order to allow for a robust and wildly profitable Internet, unfettered by inconsistent state law claims.