Climbing in Our Windows & Snatching Our Likenesses Up: Viral Videos & The Scope of the Right of Publicity on the Internet

June 16, 2012

Modern technologies, including digital cameras and mediasharing, Web sites have made it possible for anyone to upload anything at any time and rapidly transmit this content to a worldwide audience. This digital environment fosters the creation of instant Internet celebrities via viral videos. The stars of these videos, such as “Bed Intruder’”s Antoine Dodson, are often unwitting “actors” whose ability to control the use of their likenesses should be protected. This right varies by state and is typically addressed either under the right of publicity or an invasion of privacy by misappropriation of identity action. State laws regarding the right of publicity and privacy protections should construe consent as narrowly as possible to protect the rights of an individual private citizen to exert control over his or her personal identity. Specifically, the consent to be filmed should not be interpreted as consent for that content to then be uploaded, manipulated, and broadcasted throughout the Internet. Furthermore, the uploading and distribution of content in this manner should not be justified by the doctrine of first sale.