Saturday, May 20, 2006

Right of publicity and "amateur" weblogs and profiles on social networking sites

The practice by high school and college students of posting materials that school officials consider anti-social on "social networking sites" (like myspace.com) as well as personal weblogs is leading to new concerns about the right of publicity. Some content would be acceptable in a conventionally distributed film or cable show, so do students or teachers or other individuals have less of a right to publish it themselves? That is complicated. Schools are sensitive to disruption, and there is a body of case law balancing this concern with free speech (Tinker and Pickering/Connick). Similar problems exist in many workplaces, so some employers have started checking social networking profiles and weblogs (even with Google) of job applicants or even employees. The notion seems to be: if a work is professionally produced and distributed (whatever that means!) it will be viewed as a literary effort; if it is produced and posted by an amateur, it can be viewed as conventional and potentially disruptive speech or as an indication of the speaker motives and suitability for the school or employment environment. This leads back to the question, how does a person establish ownership of his or her right of publicity? This is quite unsettled now.

(Note, concering how this posting was worded before: Persons can be arrested for confessions made on their blogs or site of illegal acts, and persons who are videotaped in illegal behavior can apparently be prosecuted based on that behavior. If a third party videotapes that behavior, sometimes it is legal to broadcast or distribute the video, and sometimes commercial broadcast networks have done this. Obviously this is a dangerous thing for an amateur filmmaker to attempt, given libel, invasion of privacy, and the like. One may script and film a "make believe" incident, but (obviously) one may not commit an illegal act just to film it.)