• by Wendy Davis  @wendyndavis, December 20, 2020

News anchor Karen Hepp is getting some support from the actors' union in her battle with Facebook and other tech companies over the display of her photo in dating ads and racy memes with her photo.

In a friend-of-the-court brief filed last week, the Screen Actors Guild-American Federation of Television and Radio Artists says Facebook, Imgur and Reddit should be required to face claims that they violated Pennsylvania's “right of publicity” law -- which protects people's right to control the commercial use of their images -- by allegedly hosting the photos.

“At any given point of time, there are tens, if not hundreds, of thousands of individuals, including among them actors, models, athletes, spokespersons, and countless other professionals who are actively making, or are attempting to make, a career and living through the use of their names, likenesses, images, reputations and personas in a public forum,” the union argues in its brief, filed in the 3rd Circuit Court of Appeals.

“The very cornerstone of their careers is their ability to exploit their rights in these intangible, but often very valuable, assets,” the actors' union continues. “Critical to this ability are the protections embodied in the rights of publicity laws intended to ensure that these public figures have the sole right to control how they are exploited.”

The union is weighing in on a dispute dating to 2019, when Hepp, co-anchor of the morning show "Good Day Philadelphia," alleged in a federal lawsuit that a security photo of her taken at a New York City convenience store was being used in ads on Facebook for dating sites. Hepp also sued other companies -- including Imgur and Reddit -- for allegedly displaying the image in a sexualized context.

U.S. District Court Judge John Younge in Philadelphia threw out Hepp's claims against the tech companies, ruling that they are protected by Section 230 of the Communications Decency Act.

That law generally shields interactive companies from liability over content posted by third parties, but it has some exceptions -- including one for content that infringes someone's intellectual property.

Younge's decision drew on a 2007 opinion by the 9th Circuit Court of Appeals, which said that only federal intellectual property claims -- as opposed to state intellectual property claims -- are excluded from Section 230.

Hepp recently appealed Younge's ruling to the 3rd Circuit Court of Appeals, where she is arguing that Section 230 shouldn't protect companies from lawsuits centered on state intellectual property claims, such as Pennsylvania's “right of publicity” law.

The actors union agrees with Hepp.

Among other arguments, SAG-AFTRA suggests the 9th Circuit's 2007 ruling -- relied on by Younge in his decision -- is outdated. The organization notes that Facebook only had 50 million users in 2007, compared with 2.7 billion now.

“Any concern for [web companies'] viability and growth that might have undergirded the Ninth Circuit’s holding have long since evaporated and this court should not follow its lead in this case,” the union argues.