Does using Facebook make you 'famous'?

That question goes to the heart of a lawsuit that, if successful, could cut the legs out from under Facebook’s social advertising hopes and dreams.

The artist/writer Nick Currie (aka Momus) once said, In the future, everyone will be famous for 15 people. Spend too much time on social media, and you can certainly delude yourself into thinking you’re a star. But does that give Facebook the right to use your face in its ads? A California court will soon get to decide that.

In March 2011, a group of California residents launched a class action suit against Facebook over its use of their names and photos in “Sponsored Stories” and other types of social ads. Last week, a US District judge in California refused Facebook’s attempts to dismiss the suit, ruling that the lawsuit over Facebook’s use of its members “Likes” and likenesses could proceed

I’ve written about these types of ads in the past. If you click Like on a product or service advertised on Facebook, Facebook can use your face to broadcast that recommendation to your FB posse (and collect money from advertisers along the way). Like the Jolly Green Giant or the Pillsbury Doughboy, you could find yourself an uncompensated spokesperson for that product. And that may just violate California’s Right of Publicity Statute, which prohibits a person’s name or likeness to be used in an ad without their consent. 

That’s not the strange part. The strange bit is Facebook’s defense. Instead of arguing that it obtained members’ consent automatically when they agreed to the FB terms of service, Facebook is relying on exemptions carved out in that statute for “newsworthiness.”

Just as public figures like Lindsay Lohan or Kate Middleton enjoy a lesser right to privacy by the fact of their celebrity, Facebook is arguing that you too are famous – if only to your Facebook friends – and thus exempted from protection under that statute.

Gee I feel more famous already. 

I am not a lawyer, thank god, so perhaps there is some nuance to California’s law that forces Facebook to pursue what sounds like a ludicrous line of defense in that case. But it would seem to me that if a court buys that argument, it’s really buying the notion that the entire law is bankrupt, and that advertisers (and intermediaries like Facebook) should be able to use our identities at will for their own commercial ends.

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Facebook really isn’t helping itself out here either by being maddeningly obtuse about the differences between its various social advertising schemes. For example: You can opt out of “social ads,” which pair an action of yours (such as clicking “like”) with an advertisement that appears on the right-hand column of your Facebook page.

But you can’t opt out of “sponsored stories,” which Facebook also collects money for, but are defined thusly:

“stories that are eligible to appear in your News Feed. These show up on the right-hand column of pages on Facebook. The types of stories that can be surfaced include: Page likes, Page posts, Page post likes, check-ins, app shares, apps used and games played, and domain stories.”

[img_assist|nid=234279|title=|desc=|link=none|align=right|width=640|height=355]And, apparently, because you and I are so famous (and have such good taste) others will naturally flock to these posts, checks, apps, etc.

This is the basis of Facebook’s business model. That is its unique selling proposition, the thing that distinguishes it from Google as an ad vehicle, the nuclear fuel beneath its impending $100 billion IPO. Not trivial stuff.

And if a judge decides that the mere act of opening a Facebook account does not make us all celebrities, and finds that Facebook doesn’t have the right to use our names, faces, and so on without our explicit permission, then what?

That ought to be an interesting day at Facebook’s Palo Alto headquarters.

Got a question about social media? TY4NS blogger Dan Tynan may have the answer (and if not, he’ll make something up). Visit his snarky, occasionally NSFW blog eSarcasm or follow him on Twitter: @tynan_on_tech. For the latest IT news, analysis and how-to’s, follow ITworld on Twitter and Facebook.

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