Publicity Rights Claim Isn’t Preempted by Section 230–Albert v. Tinder

This is a pro se lawsuit against Match and Tinder for fake dating profiles in the plaintiff’s name. I’m going to focus on the publicity rights claim piece of the lawsuit. Match invoked Section 230. The court says that Match qualified for the prima facie requirements for a 230 defense, but the publicity rights claims fits into the IP exception.

ICS Provider. “Match Defendants operate the Tinder dating website and application.” Cite to Beckman v. Match.

Third-Party Content. “the account’s content was allegedly produced by those other than Match Defendants.”

Publisher/Speaker Claims. The allegations expressly referenced the publication function, always a tipoff: “Counts VII and VIII allege that Match Defendants ‘published Plaintiff Alberts’ images, private activities, likeness, voice and/or identity on . . . Tinder social media channels.'”

IP Exception. In Almeida v. Amazon, “the Eleventh Circuit has expressly established that the right of publicity is an intellectual property right.” Although Almeida left open whether 230 applied to publicity rights claims, “the Court finds persuasive the reasoning of other
jurisdictions that have applied the CDA intellectual property exception to state law claims, barring immunity from those claims.” Cites to UCS v. Lycos and Atlantic Recording v. Project Playlist.

While those citations are apropos, they are dated. The court didn’t engage with the Ninth Circuit’s ccBill ruling of the same generation. which reached a contrary result, or the 3rd Circuit’s recent and comprehensive Hepp ruling. Even if the court had engaged the question more thoroughly, odds are that we would continue to see the circuit split where the Ninth Circuit says that state IP claims are covered by Section 230 and the rest of the country sees it differently.

Case citation: Albert v. Tinder, Inc., 2022 U.S. Dist. LEXIS 139670 (S.D. Fla. Aug. 5, 2022)