Karen Hepp v. Facebook

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

Nos. 20-2725 & 2885
____________

KAREN HEPP,
Appellant in 20-2725

v.

FACEBOOK; IMGUR INC; REDDIT INC; GIPHY INC,
WGCZ S.R.O.

Imgur Inc.; Reddit Inc., Appellants in 20-2885

____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-19-cv-04034)
District Judge: Honorable John M. Younge
____________

Argued on June 2, 2021

Before: HARDIMAN, PHIPPS, and COWEN, Circuit
Judges.
 (Filed: September 23, 2021)

Samuel Fineman [Argued]
Cohen Fineman
199 Marlton Pike East, Suite 4
Cherry Hill, NJ 08003
Counsel for Karen Hepp

Joseph C. Gratz
Vera Ranieri [Argued]
Aditya V. Kamdar
Durie Tangri
217 Leidesdorff Street
San Francisco, CA 94111
Counsel for Imgur Inc. and Reddit, Inc.

Dennis L. Wilson
Kilpatrick Townsend & Stockton
1801 Century Park East, Suite 2300
Los Angeles California 90067

Tywanda Lord
Kilpatrick Townsend & Stockton
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309

Barry L. Cohen
Royer Cooper Cohen Braunfeld
100 N. 18th Street, Suite 710
Philadelphia, Pennsylvania 19103

Craig S. Primis [Argued]

2
Kirkland & Ellis
1301 Pennsylvania Avenue, N.W.
Washington, DC 20004
Counsel for Facebook, Inc.

Michael T. Zeller [Argued]
Quinn Emanuel Urquhart & Sullivan
865 S. Figueroa St. 10th Floor
Los Angeles, California 90017

Samuel W. Silver
Bruce P. Merenstein
Schnader Harrison Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Counsel for WGCZ SRO

Duncan Crabtree-Ireland
Danielle S. Van Lier
SAG-AFTRA
5757 Wilshire Blvd., 7th Floor
Los Angeles, CA 90036

Ira L. Gottlieb
Bush Gottlieb, A Law Corporation
801 North Brand Boulevard, Suite 950
Glendale, CA 91203-1260
Counsel for Amicus SAG-AFTRA, in support of Karen
Hepp

Kit Walsh

3
Coryanne McSherry
Electronic Frontier Foundation
815 Eddy Street
San Francisco, CA 94109
Counsel for Amici Electronic Frontier Foundation, the
Copia Institute, iFixit, Engine, and Center for
Democracy and Technology, in support of Imgur, Inc.,
Reddit, Inc., Facebook, Giphy, Inc., and WGCZ SRO
___________

OPINION OF THE COURT
____________

HARDIMAN, Circuit Judge.

Section 230 of the Communications Decency Act of
1996 bars many claims against internet service providers. See
47 U.S.C. § 230(c). But Section 230 does not bar intellectual
property claims. § 230(e)(2). The question presented in this
appeal is whether a Philadelphia newscaster’s state-law claims
for violating her right of publicity are precluded by § 230.
Because those claims are encompassed within the intellectual
property carve-out, § 230(e)(2), we hold they are not
precluded.

I

Appellant Karen Hepp has worked in the news industry
her entire adult life. Presently, she hosts FOX 29’s Good Day
Philadelphia. As is often the case for television personalities,
Hepp’s professional success as a newscaster depends in part on
her reputation and social media following. She has built an
“excellent reputation as a moral and upstanding community

4
leader” and has amassed a sizeable social media following. See
App. 59–61. So Hepp’s endorsement can be valuable.
Naturally, that value depends on her ability to control the use
of her likeness.

In 2018, Hepp was told by coworkers that her
photograph was making its way around the internet. The image
depicts Hepp in a convenience store, smiling in the center of
the frame’s foreground. But the photograph was taken without
Hepp’s knowledge or consent. She knows neither the
convenience store’s location nor how the image was posted
online. And she never authorized the image to be used in online
advertisements for erectile dysfunction and dating websites.

Hepp’s allegations included two sets of posts featuring
her photograph. She alleged each violated her right of publicity
under Pennsylvania law.

The first post—which was an advertisement to a dating
app, FirstMet—appeared on Facebook, which is one of the
world’s largest social media companies. The advertisement
used Hepp’s image to promote its dating service. And it
encouraged Facebook users to “meet and chat with single
women near you.”

Second, a Reddit thread linked to an Imgur post of the
photo. Reddit is an online forum that allows users to create
communities organized around topics. Within each
community, users can start conversations by making an initial
post. Other users can note their approval by “upvoting” the
post. See generally https://www.redditinc.com/;
https://www.reddithelp.com/hc/en-us/categories/200073949-
Reddit-101. Imgur is a photo sharing website where users share
digital images. See generally https://imgurinc.com/. In this

5
case, someone uploaded Hepp’s image to Imgur. Then a Reddit
user posted a link to the Imgur post. The Reddit post spurred
indecent user commentary and was upvoted over one hundred
times.

Hepp sued Facebook, Reddit, and Imgur. The
complaint, as amended, alleges two state-law claims: one for
violating Pennsylvania’s right of publicity statute, 42 PA.
CONS. STAT. § 8316, and the other for violating its common
law. The companies each moved to dismiss the amended
complaint. The District Court dismissed Hepp’s case with
prejudice, holding all three companies were entitled to § 230
immunity. The Court held the § 230(e)(2) limitation—which
prevents § 230 from affecting “any law pertaining to
intellectual property”—did not apply to violations of state law.

Hepp appealed. And Imgur and Reddit filed a joint
cross-appeal to challenge personal jurisdiction.

II

The District Court, exercising diversity jurisdiction
under 28 U.S.C. § 1332, dismissed Hepp’s amended complaint
with prejudice. So our jurisdiction lies under § 1291, and our
review is plenary. See Martinez v. UPMC Susquehanna,
986 F.3d 261, 265 (3d Cir. 2021).

III

We begin with personal jurisdiction. Facebook
conceded it was amenable to suit in the District Court. But
Reddit and Imgur claimed the District Court lacked personal
jurisdiction over them. We agree. Applying the Supreme
Court’s decision in Ford Motor Co. v. Montana Eighth Judicial

6
District Court, 141 S. Ct. 1017 (2021), we hold the District
Court did not have personal jurisdiction over Reddit or Imgur.

Personal jurisdiction can be general or specific. General
jurisdiction extends to all claims against a defendant and exists
where a company is “essentially at home.” Id. at 1024. Because
none of the companies are at home in Pennsylvania, we turn to
the Supreme Court’s specific jurisdiction doctrine, which
extends only to particular claims. Id.

There are two prongs to the specific jurisdiction
analysis. First, there must be purposeful availment: minimum
contacts with the forum state that show the defendant took a
deliberate act reaching out to do business in that state. Id. at
1024–25. Second, the contacts must give rise to—or relate to—
plaintiff’s claims. Id. at 1025. Imgur and Reddit concede that
the first prong is satisfied here. Oral Argument at 47:28–47:34.
So we focus on the second.

For the contacts to satisfy the second prong, there must
be “a strong ‘relationship among the defendant, the forum, and
the litigation.’” Id. at 1028 (quoting Helicopteros Nacionales
de Colombia, S. A. v. Hall, 466 U.S. 408, 414 (1984)). Here,
that connection is too weak.

Consider the strong connection in Ford Motor. That
case involved products liability suits stemming from car
accidents in Minnesota and Montana. Id. at 1022. The contacts
between those states and the company were legion. By “every
means imaginable” Ford urged state residents to buy the types
of cars in the accidents. Id. at 1028. The company
“systematically served a market in Montana and Minnesota for
the very vehicles that the plaintiffs allege malfunctioned and
injured them in those States.” Id. So there was the requisite

7
strong relationship among the defendant, the forum, and the
litigation. Id.

In contrast, Hepp’s allegations focus on how Imgur and
Reddit purposefully availed themselves of the Pennsylvania
market. But those contacts do not relate to this litigation. Hepp
alleges Imgur and Reddit targeted their advertising business to
Pennsylvania. And she alleges Imgur has an online
merchandise store that sells products to Pennsylvanians.
Finally, she points to Reddit’s premium membership business
and an online community organized around Philadelphia. But
none of these contacts forms a strong connection to the
misappropriation of Hepp’s likeness. Hepp did not allege the
merchandise featured her photo. Nor did she allege Imgur and
Reddit used her likeness to sell advertising. Finally, she did not
claim the photo was taken, uploaded, or hosted in
Pennsylvania.

In sum, the alleged contacts do not relate to
misappropriation, and the alleged misappropriation does not
relate to any of the contacts. Because Hepp failed to establish
the strong connection present in Ford Motor, we hold the
District Court lacked personal jurisdiction over Imgur and
Reddit.1

1
Hepp also named a Czech company, WGCZ, in connection
with a pornographic website that hosted her image after a user
posted it to an illicit gallery. The District Court granted
WGCZ’s motion to dismiss because it did not operate the
website during the relevant time. Hepp concedes WGCZ did
not run the pornography website at issue. Oral Argument at
1:18:50–1:19:05. So there were no relevant contacts to

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 IV

With Facebook as the only remaining party to this
appeal, we consider whether it is immune under § 230.

A

Passed in 1996, Section 230 of the Communications
Decency Act was intended to promote the internet. See
47 U.S.C. § 230(b). It specifically sought to preserve “the
vibrant and competitive free market”—“unfettered by Federal
or State regulation.” § 230(b)(2). The Act also promoted
filtering technology and the vigorous enforcement of criminal
obscenity laws. § 230(b)(5). In essence, Congress fostered a
largely unregulated free market online while snuffing out
certain objectionable content.

Section 230(c) strikes the balance. It provides “Good
Samaritan” protection, which enables “blocking and screening
of offensive material” as follows:

(1) TREATMENT OF PUBLISHER OR
SPEAKER . No provider or user of an
interactive computer service shall be
treated as the publisher or speaker of

establish personal jurisdiction, and the District Court correctly
held it lacked personal jurisdiction over WGCZ. The District
Court also concluded § 230 barred Hepp’s claims, so it denied
her leave to add the appropriate website owner. As explained
below, we disagree with the District Court about § 230. See
infra Part IV. So while Hepp’s suit against WGCZ was
properly dismissed for lack of jurisdiction, we will vacate the
District Court’s decision denying leave to amend.

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 any information provided by another
information content provider.

(2) CIVIL LIABILITY . No provider or
user of an interactive computer
service shall be held liable on account
of—

(A) any action . . . to restrict
access to . . . objectionable
. . . [material]; or

(B) any action taken to enable
. . . the technical means to
restrict access to material
described in paragraph [A].

§ 230(c). This provision bars attempts to treat websites as
publishers or speakers of content posted by others. Id. And it
encourages companies to host and moderate third-party content
by immunizing them from certain moderation decisions. Id. In
other words, it forgoes some publisher liability and paves the
way for service providers to make their own moderation
decisions.

Lest the liability provisions in § 230(c) be read too
broadly, however, the Act also carves out five limitations in
§ 230(e). Subsection (e) ensures several legal domains remain
unaffected by § 230(c). Most relevant here, § 230 has “[n]o
effect on intellectual property.” § 230(e)(2). Indeed, “[n]othing
in [§ 230] shall be construed to limit or expand any law
pertaining to intellectual property.” Id. Similarly, § 230(c) does
not affect federal criminal law, communications privacy law,
or sex trafficking law. § (e)(1), (4), (5). Among these

10
limitations, state law is mentioned several times. For instance,
in the communications privacy and sex trafficking domains,
“similar” or coextensive state laws also fall outside § 230(c)’s
scope. See § (e)(4), (5). Finally, the Act also provides a general
state law limitation, stating consistent state laws are not
affected. See § 230(e)(3). In sum, § 230(e) cabins the reach of
the Act’s liability provisions.

This appeal turns on whether § 230(c) makes Facebook
immune or whether § 230(e)(2) places Hepp’s claims outside
§ 230(c)’s reach. We resolve that issue in two steps. First, we
consider whether § 230(e)(2) can apply to any state law claims.
We then turn to whether § 230(e)(2) applies to Hepp’s
statutory claim.

B

1

In the twenty-five years since the Communications
Decency Act was passed, there are precious few cases
interpreting § 230’s intellectual property provision. The first
noteworthy case is Universal Communication Systems, Inc. v.
Lycos, Inc., 478 F.3d 413 (1st Cir. 2007). There, a company
sued internet message board providers alleging that some posts
contained “false, misleading” content about the company’s
financial prospects. See id. at 415–16. The suit alleged
violations of federal law, as well as trade name dilution in
violation of Florida law. Id. at 417. The First Circuit treated the
Florida dilution claim separately because “[c]laims based on
intellectual property laws are not subject to Section 230
immunity.” Id. at 422–23 (citing 47 U.S.C. § 230(e)(2)). As to
the merits of the state-law claim, the court reasoned that
“[t]rademark injury arises from an improper association

11
between the mark and [someone else’s] products or
services”—not from “criticism” leading to reputational harm.
See id. at 423. Ultimately, the court held “that even though
Section 230 immunity does not apply, the claim was properly
dismissed as a matter of [Florida] trademark law” “because of
the serious First Amendment issues that would be raised by
allowing [Plaintiff’s] claim.” See id. at 423 & n.7. But that
decision was necessary only because the court held § 230(e)(2)
preserved the state law claim.

Soon after the First Circuit announced its decision in
Lycos, the Ninth Circuit went the other way in Perfect 10, Inc.
v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007). There, a website
operator alleged violations of federal law and a state right of
publicity law. Id. at 1108. The district court dismissed the
complaint and the Ninth Circuit affirmed, reasoning that
federal intellectual property’s scope was more established
compared to state laws. Id. at 1118. And it explained the Act’s
policy goal—to insulate the internet from regulation—would
be hindered if federal immunity varied based on state laws. Id.
In the Ninth Circuit’s view, § 230(e)(2) includes only “federal
intellectual property.” Id. at 1119 (emphasis added).

Another notable case is Atlantic Recording Corp. v.
Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009).
There, record companies brought copyright claims under both
state and federal law. See id. at 694 & n.5. The district court
found the statute’s text was clear. Id. at 703. It emphasized that
Congress specified whether local, state, or federal law applied
four times in subsection (e): once discussing federal criminal
law, § (e)(1); twice in the general state law provision, § (e)(3);
and again in the communications law context, § (e)(4). Id. The
court held that “if Congress wanted the phrase ‘any law
pertaining to intellectual property’ to actually mean ‘any

12
federal law pertaining to intellectual property,’ it knew how to
make that clear, but chose not to.” Id. Indeed, when Congress
added the sex trafficking provision to the limitations in § (e), it
referenced state laws twice more. See Allow States and
Victims to Fight Online Sex Trafficking Act of 2017, § 4(a),
Pub L. No. 115-164, 132 Stat. 1253, 1254 (2018) (adding
47 U.S.C. § 230(e)(5)).

With those precedents in mind, we turn to the parties’
arguments.

2

In dismissing Hepp’s amended complaint, the District
Court adopted the Ninth Circuit’s approach, holding that
§ 230(e)(2)’s limitation applies only to federal intellectual
property. Facebook asks us to affirm that holding on three
bases: the text and structure of § 230(e); the statute’s own
policy provision, § 230(b); and practical policy reasons.

Facebook’s appeal to text and structure rightly urges us
to read § 230 as an integrated whole. It suggests § 230(e)
makes federal limitations the default and includes state laws
only when specified. In other words, § 230(e)’s limitations are
“directed to certain federal statutes and include state laws only
where they are coextensive with federal law.” Facebook Br. 17.
Because state-law rights of publicity do not mirror an
analogous federal law, Facebook argues Hepp’s claim is not
included in § 230(e)(2)’s intellectual property limitation.

Hepp counters that her claims arise under state law
“pertaining to intellectual property,” so § 230(c) cannot block
them. And she cites Atlantic Recording as support. We agree
with Hepp.

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 3

In our view, Facebook’s interpretation strays too far
from the natural reading of § 230(e)(2). We disagree that “any
law pertaining to intellectual property” should be read to mean
“any federal law pertaining to intellectual property.” To
support this “federal” reading, Facebook points to the statute’s
structure. But the structural evidence it cites cuts both ways.
Facebook is correct that the explicit references to state law in
subsection (e) are coextensive with federal laws. But those
references also suggest that when Congress wanted to cabin the
interpretation about state law, it knew how to do so—and did
so explicitly. Because the evidence cuts both ways, the
structure does not change the natural meaning. So the text and
structure tell us that § 230(e)(2) can apply to federal and state
laws that pertain to intellectual property.

Facebook also points to the policy enacted as part of
§ 230. As the company would have it, “Congress enacted
Section 230 to avoid subjecting internet service providers to a
web of inconsistent, ‘fettering’ state regulations like the laws
governing rights of publicity.” Facebook Br. 20–21. In support
of this argument, Facebook focuses on § 230(b)(2). That
provision seeks “to preserve the vibrant and competitive free
market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State
regulation.” § 230(b)(2). Facebook contends that because
rights of publicity vary from state to state, increasing those
protections would require censorship, limit free speech, and
impair the online marketplace.

Facebook’s premise is right: Congress enacted a pro-
free-market policy. But its desired conclusion does not
necessarily follow. Section 230’s policy goals do not erase

14
state intellectual property rights as against internet service
providers. Facebook errs by downplaying the role of property
in markets. After all, state property laws—along with contract
laws—enable “the resulting formation of effective markets.”
Ford Motor, 141 S. Ct. at 1029. Because state property rights
can facilitate market exchange, interpreting the § 230(e)(2)
limitation to include state intellectual property laws tracks
Congress’s pro-free-market goal. So the enacted policies do
not require an alternate reading.

Third, Facebook offers policy arguments independent
of the statute’s text. According to Facebook, our reading would
increase uncertainty about the precise contours of immunity in
cases involving state intellectual property law. See Facebook
Br. 29 (citing Perfect 10, 488 F.3d at 1119 n.5). But policy
considerations cannot displace the text. For that reason, other
courts have rejected such considerations, at least implicitly. In
Lycos, the First Circuit decided the case on state law grounds
because “Section 230 immunity does not apply.” 478 F.3d at
423 n.7. And in Atlantic Recording, the district court took a
similar approach. Well over a decade has passed since those
cases were decided, yet neither Facebook nor its amici provide
evidence that the rulings created the disarray they now predict.

Even if we considered policy outside the statute’s text,
it too could cut the other way. For example, if likeness interests
are disregarded on the internet, the incentives to build an
excellent commercial reputation for endorsements may
diminish. Cf. Zacchini v. Scripps-Howard Broad. Co.,
433 U.S. 562, 573 (1977) (explaining the economic theory
underlying the right of publicity). That would cut against the
statute’s explicit policy objectives because information
provided by promotional advertisements can enhance market

15
efficiency and vibrancy. So these policy arguments do not
carry the day for Facebook either.

The parties present a clear split of persuasive authority.
Facebook and its amici offer arguments based on the statute’s
text and policy considerations. But there are strong textual and
policy arguments to the contrary. Because we adhere to the
most natural reading of § 230(e)(2)’s text, we hold that
§ 230(e)(2) is not limited to federal laws. Simply put, a state
law can be a “law pertaining to intellectual property,” too.

C

Having held the § 230(e)(2) limitation applies to state
intellectual property law, we turn to whether Hepp’s statutory
cause of action against Facebook constitutes such a claim.

1

Facebook argues the right of publicity is rooted in
privacy. But it acknowledges the right has been categorized as
“both a ‘privacy right’ . . . and a ‘property right’.” Facebook
Br. 24–25 (quotation omitted). Amici supporting Facebook
take a different tack. They argue we should read “any law
pertaining to intellectual property” to “embrace its traditional
core”—exclusively federal copyright and patent law. EFF Br.
8 & n.5 (excluding trademarks). These amici also warn us of
the “parade of horribles,” EFF Br. 19, that would ensue should
we adopt Hepp’s interpretation, especially limitations on free
speech.

For her part, Hepp contends the right to publicity is an
intellectual property right. See Hepp Br. 11. And she argues
that she “has dedicated considerable time, effort and money

16
into building her brand.” Hepp Br. 17. Her amicus adds that
state courts have long recognized individuals have property
interests in their personas. They cite a 1907 case involving the
legendary Thomas Edison. SAG Br. 19. There, the New Jersey
court confirmed Edison could enjoin the use of his picture as
an endorsement for a product he did not sell. See Edison v.
Edison Polyform Mfg. Co., 67 A. 392, 394 (N.J. Ch. 1907). The
court reasoned there was no distinction between the intellectual
property protections afforded a person’s name and trademark-
like protections for likenesses used on a label. See id.

2

With these arguments in mind, we return to the statute’s
text. “Nothing in [§ 230] shall be construed to limit or expand
any law pertaining to intellectual property.” § 230(e)(2). So to
decide whether Hepp’s statutory claim against Facebook falls
within § 230’s intellectual property limitation, we must first
establish whether it arises from a “law pertaining to intellectual
property.” That requires us to determine the meaning of the
phrase “intellectual property.” To do so, we turn to several
sources.

For starters, Black’s Law Dictionary defines
“intellectual property” to include “publicity rights.” See
Intellectual Property, BLACK’S LAW DICTIONARY (11th ed.
2019); accord id. (7th ed. 1999). But not every dictionary does.
For instance, Ballentine’s defines the term as “those property
rights which result from the physical manifestation of original
thought.” Intellectual Property, BALLENTINE’S LAW
DICTIONARY (3d ed. 1968). Absent unanimity about the
meaning of “intellectual property,” we survey dictionary
definitions. See infra Appendices A and B. See generally
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW 417

17
(2012) (explaining “comparative weighing of dictionaries is
often necessary”).

We begin by noting that “intellectual property” is best
understood as a compound term—not a generic two-word
phrase—because both legal and lay dictionaries treat it as such.
See infra Appendices A and B. So we do not combine the
definitions of “intellectual” and “property” in isolation; we
interpret the compound term as a unified whole.

Second, legal dictionaries take precedence here. See
infra Appendix A. Section 230(e) addresses the Act’s impact
on other laws. Because the term is used in a legal sense, the
proper definition of “intellectual property” is the term’s
ordinary legal meaning. See SCALIA & GARNER, supra, at 73.

Our survey of legal dictionaries reveals “intellectual
property” has a recognized meaning which includes the right
of publicity. This conclusion follows from several
observations.

First, two of the legal dictionaries explicitly list the right
of publicity as an intellectual property right. See infra
Appendix A (Black’s and McCarthy’s). These dictionaries are
especially apt. Black’s is renowned, and McCarthy’s directly
addresses the subject. A third legal dictionary, Bouvier’s,
provides more support. It sets forth a test that Pennsylvania’s
right of publicity statute satisfies because the statute grants
people monopolies in their likenesses. The statute also
provides for property-like relief, including the ability to obtain
damages and injunctions against trespassers. Compare 42 PA.
CONS. STAT. § 8316(a) (allowing for damages and injunctions
when one’s monopoly over her likeness is infringed), with
infra Appendix A (Bouvier’s test, requiring the same). In sum,

18
these definitions provide strong evidence that the term
“intellectual property” includes Pennsylvania’s statutory right
of publicity.

Along with that explicit evidence, the legal definitions
provide implicit support as well. For instance, one definition
does not mention the right of publicity—but it includes
trademark. See infra Appendix A (Dictionary of Modern Legal
Usage). And that inclusion implies the right to publicity by
analogy. Cf. Zacchini, 433 U.S. 562.

In Zacchini, the Supreme Court explained the right of
publicity is an individual property right that is “closely
analogous to . . . patent and copyright” because it focuses “on
the right of the individual to reap the reward of his endeavors
and [has] little to do with protecting feelings or reputation.” Id.
at 573. That focus also fosters market function by preventing
the “unjust enrichment by the theft of goodwill.” See id. at
575–76. And just as the right is “closely analogous” to patent
and copyright, so too for trademark. Like the right to publicity,
trademarks secure commercial goodwill. USPTO v.
Booking.com, 140 S. Ct. 2298, 2302 (2020). Trademarks also
foster the marketplace because they protect consumers’ ability
to distinguish between competitors. Id. So the right of publicity
and trademark are close analogues.2

2
For an academic account, see Stacey L. Dogan & Mark A.
Lemley, What the Right of Publicity Can Learn from
Trademark Law, 58 STAN. L. REV. 1161, 1164, 1190 (2006)
(contending trademark law “is by far the closest analogy to the
right of publicity”).

19
 And this analogy has been recognized in the courts for
over a century. For example, a New Jersey court in Edison
analogized the right in one’s likeness to trademark. 67 A. at
393–94. That same year, a federal court granted an injunction
to stop the “deceptive use of the Emperor Franz Josef’s name
and portrait” because it falsely implied his endorsement. See
Von Thodorovich v. Franz Josef Beneficial Ass’n, 154 F. 911,
913 (C.C.E.D. Pa. 1907). More recently, the Florida Supreme
Court explained the harm caused by a right to publicity
violation is that “it associates the individual’s name or . . .
personality with something else.” Tyne v. Time Warner Ent.
Co., 901 So. 2d 802, 806 (Fla. 2005) (cleaned up). Because
trademark and the right to publicity are analogues, the legal
definition including trademark also supports including the right
of publicity as “intellectual property.”

Like the legal dictionaries, many lay dictionaries
explicitly include trademark. See Appendix B. So they too
favor including the right to publicity within “intellectual
property.” It is true that a handful of definitions fail to mention
trademark. See infra Appendix A (Ballentine’s); see also infra
Appendix B (American Heritage and Merriam Webster). But
those three dictionaries are a distinct minority compared to the
majority view that includes the right to publicity either
explicitly or by analogy. And the statute’s context favors
adopting the majority view. Dictionary definitions tend to
“state[] the core meaning of a term,” omitting the “periphery.”
SCALIA & GARNER, supra, at 418. And here, statutory context
clarifies we should include the periphery. Section 230(e)(2)
uses the modifiers “any” and “pertaining to”—“any law
pertaining to intellectual property.” So not only are core
intellectual property laws included, but so are laws pertaining
to the subject. See Ali v. Fed. Bureau of Prisons, 552 U.S. 214,

20
218–19 (2008) (“any”); cf. Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 383 (1992) (“relating to”). And not some of
them—any of them. Thus the term’s statutory context confirms
our holding.

In conclusion, we hold that Hepp’s statutory claim
against Facebook arises out of a law pertaining to intellectual
property. For that reason, the § 230(e)(2) limit applies, and
Facebook is not immune under § 230(c). So we will reverse the
District Court’s order dismissing Hepp’s amended complaint
against Facebook with prejudice.

D

We close by emphasizing the narrowness of our
holding. First, it does not threaten free speech. Hepp’s statutory
claim against Facebook clarifies the point. She alleges her
likeness was used to promote a dating service in an
advertisement. And she claims that misappropriated the effort
she spent to build a valuable reputation, so it could confuse
consumers by suggesting she endorses the service. Again, the
analogy to trademark is striking. Just as a counterfeit item can
misappropriate a trademark owner’s goodwill, so too might the
unauthorized use of Hepp’s image in the ad. Further, both
misappropriations could create consumer confusion and
undercut efficient incentives. In this way, trademark claims
typically avoid violating free speech by addressing misleading
commercial speech. See Facenda v. N.F.L. Films, Inc.,
542 F.3d 1007, 1018 (3d Cir. 2008). So too for Hepp’s
statutory claim against Facebook. Thus, Hepp’s statutory claim
against Facebook is about the commercial effect on her
intellectual property, not about protected speech.

21
 Second, our holding does not open the floodgates.
Pennsylvania’s statute is limited. For instance, it provides a
right of publicity cause of action only for those whose valuable
interest in their likeness “is developed through the investment
of time, effort, and money.” 42 PA. CONS. STAT. § 8316(e).
And we express no opinion as to whether other states’ rights of
publicity qualify as intellectual property as a matter of federal
law.

Third, having resolved the appeal on statutory grounds,
we offer no opinion about the Pennsylvania common law
claim. Facebook and Hepp briefed that issue in the District
Court, but neither party focused on it here. So it is best left to
the District Court on remand.

* * *

Section 230 does not preclude claims based on state
intellectual property laws. Hepp’s statutory claim against
Facebook fits that bill. For that reason, we will reverse in part
the District Court’s order dismissing her complaint with
prejudice as to her statutory claim against Facebook. But the
District Court lacked personal jurisdiction over the other
parties, so they should be dismissed for lack of jurisdiction.
And we will vacate the District Court’s orders regarding leave
to amend and Hepp’s common law claim against Facebook.
Finally, we will remand for further proceedings consistent with
this opinion.

22
 APPENDICES

A

1. A category of intangible rights protecting
commercially valuable products of the human
intellect. • The category comprises primarily
trademark, copyright, and patent rights, but also
includes trade-secret rights, publicity rights,
moral rights, and rights against unfair
competition.

2. A commercially valuable product of the
human intellect, in a concrete or abstract form,
such as a copyrightable work, a protectable
trademark, a patentable invention, or a trade
secret.

Intellectual Property, BLACK’S LAW DICTIONARY (7th
ed. 1999).

1. A category of intangible rights protecting
commercially valuable products of the human
intellect. • The category comprises primarily
trademark, copyright, and patent rights, but also
includes trade-secret rights, publicity rights,
moral rights, and rights against unfair
competition. . . . .

2. A commercially valuable product of the
human intellect, in a concrete or abstract form,
such as a copyrightable work, a protectable

23
 trademark, a patentable invention, or a trade
secret.

Intellectual Property, id. (8th ed. 2004); id. (9th ed.
2009); id. (10th ed. 2014); id. (11th ed. 2019).

Those property rights which result from the
physical manifestation of original thought.

Intellectual Property, BALLENTINE’S LAW DICTIONARY
(3d ed. 1969).

Intellectual property comprises two
subdivisions: industrial property and copyright.
Industrial property includes patents, inventions,
trademarks, and industrial designs. Copyrights
are property rights in literary, musical, artistic,
photographic, and film works as well as in maps
and technical drawings.

Intellectual Property, DICTIONARY OF MODERN LEGAL
USAGE (2d ed. 1995)

Protection under the law for interests in creations
and inventions. Intellectual property is the whole
set of intangible rights that authors, inventors,
and other creators have in the items they write,
invent, or create. To have intellectual property in
a thing is to have an effective monopoly on its
use, such that the property rights holder may
enjoin or recover from others who infringe on the
rights through unfair duplication or wrongful
use. Intellectual property in anything is usually
limited in time, although the lengths of time and

24
 manner of calculation vary dramatically among
and within the categories.

Intellectual property is usually divided among
three categories: copyright, patent, and
trademark. In the United States, each is the
province of federal regulation, as well as the
common law. There is also a growing field of
international law regulating intellectual property
both as a field of international agreements unto
itself and as an aspect of the regulation of trade.

Intellectual Property, THE WOLTERS KLUWER
BOUVIER LAW DICTIONARY (2012).

[patent—trademark—unfair competition—
copyright—trade secret—moral rights] Certain
creations of the human mind that are given the
legal aspects of a property right. “Intellectual
property” is an all-encompassing term now
widely used to designate as a group all of the
following fields of law: patent, trademark, unfair
competition, copyright, trade secret, moral
rights, and the right of publicity.

Intellectual Property, MCCARTHY’S DESK
ENCYCLOPEDIA OF INTELLECTUAL PROPERTY (1991)
(square brackets in the original).

B

1. Any of various products of the intellect that
have commercial value, including copyrighted
property such as literary or artistic works, and

25
 ideational property, such as patents, business
methods, and industrial processes.

2. The set of rights protecting such works and
property from unlawful infringement.

Intellectual Property, THE AMERICAN HERITAGE DICTIONARY
OF THE ENGLISH LANGUAGE (5th ed. 2011).

A product of the intellect that has commercial
value, including copyrighted property such as
literary or artistic works, and ideational property,
such as patents, appellations of origin, business
methods, and industrial processes.

Intellectual Property, id. (4th ed. 2009)

Law. Property that results from original creative
thought, as patents and trademarks.

Intellectual Property, RANDOM HOUSE WEBSTER’S SCHOOL
AND OFFICE DICTIONARY (1999).

Property (as an idea, invention, or process) that
derives from the work of the mind of intellect;
also: an application, right, or registration relating
to this.

Intellectual Property, MERRIAM WEBSTER’S COLLEGIATE
DICTIONARY (11th ed. 2003).

A general name for property (such as patents,
trademarks, and copyright material) which is the

26
 product of invention or creativity, and which
does not exist in a tangible, physical form.

Intellectual Property, OXFORD ENGLISH DICTIONARY (2d ed.
1989).

Property (such as patents, trademarks, and
copyright material) which is the product of
invention or creativity, and does not exist in a
tangible, physical form.

Intellectual Property, id. (3d ed. 2010).

27
COWEN, Circuit Judge, concurring in part and dissenting in
part.

I concur in Section III (and Footnote 1 to the extent it
affirms the District Court’s dismissal of the claims against
WGCZ for lack of personal jurisdiction) of the majority
opinion. However, I must respectfully dissent from Section
IV of the opinion. I believe that the “intellectual property”
exception or exclusion to immunity under § 230(e)(2) of the
Communications Decency Act of 1996 (“CDA”), 47 U.S.C. §
230(e)(2) (“Nothing in this section shall be construed to limit
or expand any law pertaining to intellectual property”), is
limited to federal intellectual property laws (i.e., federal
patent, copyright, and trademark laws) and—at most—state
laws only where they are co-extensive with such federal laws.
Because Hepp’s statutory and common law “right of
publicity” claims under Pennsylvania law are clearly not co-
extensive with federal intellectual property laws, the
exception does not apply, and Facebook (as well as NKL
Associates, S.R.O. (“NKL”)) are entitled to immunity.1

Initially, the majority indicates that there is a circuit
split between the First and Ninth Circuits regarding the scope
of § 230(e)(2). However, there is no existing split in the

1
While Facebook argues that the exception applies to
federal and co-extensive state intellectual property laws,
Imgur, Reddit, and WGCZ contend that the exception only
applies to federal claims (and Amicus EFF contends that it is
limited to patent and copyright claims). Because the claims at
issue here are not co-extensive with federal intellectual
property laws, I need not—and do not—decide which
approach is correct.
circuits on this issue. On the contrary, it is the majority that
creates such a split.

In Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th
Cir. 2007), the Ninth Circuit did conclude that the intellectual
property exception “includes only ‘federal intellectual
property.’” (Majority Opinion at 12 (quoting Perfect 10, 488
F.3d at 1119).) The circuit court succinctly and persuasively
explained why it construed “the term ‘intellectual property’ to
mean ‘federal intellectual property’”:

The CDA does not contain an express
definition of “intellectual property,” and there
are many types of claims in both state and
federal law which may—or may not—be
characterized as “intellectual property” claims.
While the scope of federal intellectual property
law is relatively well-established, state laws
protecting “intellectual property,” however
defined, are by no means uniform. Such laws
may bear various names, provide for varying
causes of action and remedies, and have varying
purposes and policy goals. Because material on
a website may be viewed across the Internet,
and thus in more than one state at a time,
permitting the reach of any particular state’s
definition of intellectual property to dictate the
contours of this federal immunity would be
contrary to Congress’s expressed goal of
insulating the development of the Internet from
the various state-law regimes. See 47 U.S.C. §
230(a) and (b); see also [Batzel v. Smith, 333
F.3d 1018, 1027 (9th Cir. 2003)] (noting that

2
 “courts construing § 230 have recognized as
critical in applying the statute the concern that
lawsuits could threaten the ‘freedom of speech
in the new and burgeoning Internet medium’”
(quoting [Zeran v. Am. Online, Inc., 129 F.3d
327, 331 (4th Cir. 1997)])). In the absence of a
definition from Congress, we construe the term
“intellectual property” to mean “federal
intellectual property.”

Id. at 1118-19 (footnote omitted). Accordingly, the Perfect
10 court determined that the defendants “are eligible for CDA
immunity for all of the state claims [i.e., unfair competition,
false advertising, and right of publicity claims] raised” by the
plaintiff. Id. at 1119.

The majority also states that the First Circuit “held §
230(e)(2) preserved the state law claim.” (Id. (discussing
Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413
(1st Cir. 2007)).) Unlike the Ninth Circuit, the First Circuit
simply stated without any further discussion (or even
acknowledgement that there could be an issue regarding the
scope of the statutory exception) that:

Claims based on intellectual property
laws are not subject to Section 230 immunity.
See [§ 230(e)(2)] (“Nothing in this section shall
be construed to limited or expand any law
pertaining to intellectual property.”); see also
Gucci Am., Inc. v. Hall & Assocs., 135 F. Supp.
2d 409, 413 (S.D.N.Y. 2001) (finding that the
“plain language of Section 230(e)(2) precludes
[the defendant’s] claim of immunity” from a

3
 claim for trademark infringement).

Universal Commc’n, 478 F.3d at 422-23. It then noted that,
while the district court held that the claim was in effect a
defamation claim and that defendants thereby would be
shielded from the claim by CDA immunity, “[w]e reason
somewhat differently, holding that even though Section 230
immunity does not apply, the claim was properly dismissed as
a matter of trademark law.” Id. at 423 n.7.

The Ninth Circuit itself addressed Universal
Communication in disposing of the plaintiff’s unsuccessful
petition for rehearing. Initially, it noted that “neither party in
that case raised the question of whether state law counts as
‘intellectual property’ for purposes of § 230 and the court
seems to simply have assumed that it does.” Perfect 10, 488
F.3d at 1119 n.5. The Perfect 10 court further observed that
“Universal Communication demonstrates the difficulties
inherent in allowing state laws to count as intellectual
property for CDA purposes”—and in the process reiterated its
concern about the disparate nature of putative state
“intellectual property” laws:

We note that Universal Communication
demonstrates the difficulties inherent in
allowing state laws to count as intellectual
property for CDA purposes. In that case, the
district court struggled with the question of
whether the “trademark dilution” claim brought
under Florida Law counted as intellectual
property for purposes of the CDA, and
concluded that it was more like a defamation
claim than a trademark claim. [Universal

4
 Commc’n, 478 F.3d at 423 n.7]. Rather than
decide how to draw the line between
defamation and trademark, the First Circuit held
that “because of the serious First Amendment
issues that would be raised” if Lycos were
found liable, defendant had not violated the
Florida statute. Id. at 423.

The First Circuit was able to sidestep the
question of what counted as intellectual
property on First Amendment grounds. But we
cannot do so here. States have any number of
laws that could be characterized as intellectual
property laws: trademark, unfair competition,
dilution, right of publicity and trade defamation,
to name just a few. Because such laws vary
widely from state to state, no litigant will know
if he is entitled to immunity for a state claim
until a court decides the legal issue. And, of
course, defendants that are otherwise entitled to
CDA immunity will usually be subject to the
law of numerous states. An entity otherwise
entitled to § 230 immunity would thus be forced
to bear the costs of litigation under a wide
variety of state statutes that could arguably be
classified as “intellectual property.” As a
practical matter, inclusion of rights protected by
state law within the “intellectual property”
exemption would fatally undermine the broad
grant of immunity provided by the CDA.

Id. at 1119 n.5. (See also id. at 12 (“Ultimately, the [First
Circuit] held ‘that even though Section 230 immunity does

5
not apply, the claim was properly dismissed as a matter of
[Florida] trademark law’ ‘because of the serious First
Amendment issues that would be raised by allowing
[Plaintiff’s] claim.’” (quoting Univ. Commc’n, 478 F.3d at
423 & n.7)).)

Instead of simply applying its purported holding
concerning the scope of § 230(e)(2) and state laws, the First
Circuit subsequently assumed “without deciding” that the
plaintiffs’ remaining state law claims “come within the
compass of this exception.” Jane Doe No. 1 v.
Backpage.com, LLC, 817 F.3d 12, 26 (1st Cir. 2016). It
recognized that “[t]he application of the exemption to the
appellants’ state law claims for the unauthorized use of
pictures is not free from doubt.” Id. at 26 n.9. “At least one
court of appeals has suggested that state law intellectual
property claims are not covered by this exemption. See
[Perfect 10, 488 F.3d at 1118-19, 1119 n.5]; but cf. Lycos,
478 F.3d at 422-23, 324 n.7 (applying section 230(e)(2) to a
claim under state trademark law, albeit without detailed
analysis).” Backpage.com, 817 F.3d at 26 n.9. In fact,
“Backpage argues that the unauthorized use of pictures claims
do not involve intellectual property but, rather, stem from
property rights protected by tort law.” Id. Upholding the
dismissal of the plaintiff’s claims under state law, the First
Circuit explained that “[w]e need not reach either of these
issues.” Id.; see also Almeida v. Amazon.com, Inc., 456 F.3d
1316, 1324 (11th Cir. 2006) (stating that, while district court
should have addressed § 230(e)(2) before invoking grant of
immunity, it was unnecessary to address difficult issue of
applying CDA because Florida right of publicity claim would
not withstand motion to dismiss under state law).

6
 While there may be district court cases (like Atlantic
Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690
(S.D.N.Y. 2009)) that have applied the intellectual property
exception to state law claims, we are the first circuit court to
take such a step. The majority takes issue with Facebook’s
assertion that its reading would increase uncertainty about the
precise contours of immunity in cases involving purported
state intellectual property laws. However, the 2007 Perfect
10 decision was the only circuit court clearly on point, and it
kept the proverbial door closed on a potential influx of
disparate and downright confusing state law “intellectual
property” claims that would be contrary to Congress’s
express goals in enacting § 230. Perfect 10, 488 F.3d at
1118-19 & n.5. We now open this door and, as I explain in
more detail below, this drastic step undermines the broad
policy objectives codified in § 230.

“Facebook’s appeal to text and structure rightly urges
us to read § 230 as an integrated whole.” (Majority Opinion
at 13.) In short, the other immunity exceptions set forth under
subsection (e) refer to only specified federal laws and, in
certain instances, to co-extensive state laws. Accordingly, §
230(e)(1) states that “Nothing in this section shall be
construed to impair the enforcement of section 223 or 231 of
this title, chapter 71 (relating to obscenity) or 110 (relating to
sexual exploitation of children) of Title 18, or any other
Federal criminal statute.” Section 230(e)(4) states that
“Nothing in this section shall be construed to limit the
Electronic Communications Privacy Act of 1986 or any of the
amendments made by such Act, or any similar State law.”
Section 230(e)(5) provides that “Nothing in this section (other
than subsection (c)(2)(A)) shall be construed to impair or
limit” either “(A) any claim in a civil action brought under

7
section 1595 of Title 18, if the conduct underlying the claim
constitutes a violation of section 1591 of that title,” “(B) any
charge in a criminal prosecution brought under State law if
the conduct underlying the charge would constitute a
violation of section 1591 of Title 18,” or “(C) any charge in a
criminal prosecution under State law if the conduct
underlying the charge would constitute a violation of Section
2421A of Title 18, and promotion or facilitation of
prostitution is illegal in the jurisdiction where the defendant’s
promotion or facilitation of prostitution was targeted.” Given
such narrowly circumscribed categories, should § 230(e)(2)
be read to apply to “any number of [disparate state] laws that
could be characterized as intellectual property laws:
trademark, unfair competition, dilution, right of publicity and
trade defamation, to name just a few”—which all have
“varying causes of action and remedies, and have varying
purposes and policy goals,” Perfect 10, 488 F.3d at 1118,
1119 n.5? Would Congress have really gone so far as to grant
immunity from a wide range of state and federal laws—
including state criminal law—yet permit claims to go forward
under the nebulous (and expansive) category of state
“intellectual property”/“rights of publicity” laws?2

2
In fact, counsel for Facebook points out at oral
argument that Congress specified as part of the Defend Trade
Secrets Act of 2016 that the amendments made by this statute
“shall not be construed to be a law pertaining to intellectual
property for purposes of any other Act of Congress.” 18
U.S.C. § 1833 Statutory Note. In turn, the Digital
Millennium Copyright Act of 1998 “provides for a carefully
balanced system of notices, takedowns, and counternotices
[with respect to purported copyright infringement] that allows
platforms to host users’ speech with relative confidence.”

8
 The majority acknowledges that “the structural
evidence [Facebook] cites cuts both ways.” (Majority
Opinion at 14.) However, the codified findings and policies
clearly tilt the balance in Facebook’s favor. I believe that the
more expansive interpretation would gut the immunity system
established by Congress and undermine the policies and
findings that Congress chose to codify in the statute itself.

The “Findings” and “Policy” explicitly set forth in §
230(a) and (b) emphasize, inter alia, the importance of the
Internet, its continued development, the free exchange of
information, and the need to keep governmental regulation of
this forum to a minimum:

(a) Findings

The Congress finds the following:

(1) The rapidly developing array of Internet
and other interactive computer services
available to individual Americans represent an
extraordinary advance in the availability of
educational and informational resources to our
citizens.

(2) These services offer users a great degree of
control over the information that they receive,

(Amicus EFF’s Brief at 17 (addressing 17 U.S.C. § 512).)
Given these restrictions, how could one conclude that §
230(e)(2) is applicable to a wide range of state “intellectual
property” laws (including right of publicity claims)?

9
as well as the potential for even greater control
in the future as technology develops.

(3) The Internet and other interactive services
offer a forum for a true diversity of political
discourse, unique opportunities for cultural
development, and myriad avenues for
intellectual activity.

(4) The Internet and other interactive computer
services have flourished, to the benefit of all
Americans, with a minimum of government
regulation.

(5) Increasingly Americans are relying on
interactive media for a variety of political,
educational, cultural, and entertainment
services.

(b) Policy

It is the policy of the United States—

(1) to promote the continued development of
the Internet and other interactive computer
services and other interactive media;

(2) to preserve the vibrant and competitive free
market that presently exists for the Internet and
other interactive computer services, unfettered
by Federal or State regulation;

10
 (3) to encourage the development of
technologies which maximize user control over
what information is received by individuals,
families, and schools who use the Internet and
other interactive computer services;

(4) to remove disincentives for the
development and utilization of blocking and
filtering technologies that empower parents to
restrict their children’s access to objectionable
or inappropriate online material; and

(5) to ensure vigorous enforcement of Federal
criminal laws to deter and punish trafficking in
obscenity, stalking, and harassment by means of
computer.

§ 230(a)-(b).

“The majority of federal circuits have interpreted the
CDA to establish broad ‘federal immunity to any cause of
action that would make service providers liable for
information originating with a third-party user of the
service.’” Perfect 10, 488 F.3d at 1118 (quoting Almeida,
456 F.3d at 1321 (quoting Zeran, 129 F.3d at 331)). In short,
Congress—concerned about protecting and encouraging the
freedom of expression in a new and important forum of
speech—meant to protect and encourage such speech
unfettered by the burden of intrusive governmental regulation
in the form of civil litigation and liability. In one of the first
cases to interpret § 230, the Fourth Circuit undertook a
thorough and persuasive examination of the purpose of the
statutory immunity established by Congress. The Zeran court

11
concluded that § 230 barred the plaintiff’s defamation claim
against the service provider. Zeran, 129 F.3d at 328. As the
Fourth Circuit explained, “Congress recognized the threat that
tort-based lawsuits pose to freedom of speech in the new and
burgeoning Internet medium.” Id. at 330. “The imposition of
tort liability on service providers for the communications of
others represented, for Congress, simply another form of
intrusive government regulation of speech,” and “Section 230
was enacted, in part, to maintain the robust nature of Internet
communication and, accordingly, to keep government
interference in the medium to a minimum.” Id. (quoting §
230(a)(3), (a)(4), (b)(2)). While observing that “the original
culpable party who posts defamatory messages would [not]
escape accountability,” the Zeran court stated that “Congress
made a policy choice, however, not to deter harmful online
speech through the separate route of imposing tort liability on
companies that serve as intermediaries for other parties’
potentially injurious messages.” Id. at 330-31. Furthermore,
the Fourth Circuit observed that “[i]nteractive computer
services have millions of users” and that “[t]he amount of
information communicated via interactive computer services
is therefore staggering.” Id. at 331 (citing Reno v. ACLU,
521 U.S. 844, 850-51 (1997)). The possibility of tort liability
in such a context would have an obvious chilling effect, with
service providers (who could not possibly screen each of their
millions of postings) possibly forced to impose severe
restrictions on such on-line speech. Id. “Congress considered
the weight of the speech interests implicated and chose to
immunize service providers to avoid any such restrictive
effect.” Id. (stating that other purpose of legislation is to
encourage providers to self-regulate dissemination of
offensive material); see also, e.g., Universal Commc’n, 478
F.3d at 418-19 (relying on Zeran to find that § 230 immunity

12
should be broadly construed).

The application of § 230(e)(2) to various state
“intellectual property” laws would be inconsistent with the
objectives of § 230. On the one hand, federal intellectual
laws are relatively well established. As Amicus EFF explains
in some detail, “copyrights and patents are relatively clear,
relatively knowable, and embody a longstanding balance
between rightsholders, future creators and inventors, and the
public at large.”3 (Amicus EFF’s Brief at 14-15.) In turn,

3
Federal patent and copyright laws: (1) are
specifically authorized by the Constitution, which mandates
that such exclusive rights must “promote the Progress of
Science and the useful Arts,” U.S. Const. art. I, § 8, cl. 8; (2)
are traditionally viewed as sharing a common origins in
Venetian monopolies from the 1400s and 1500s (see EFF’s
Amicus Brief at 8-9 (citing Joanna Kostlyo, From Gunpowder
to Print: The Common Origins of Copyright & Patent,
Privilege & Property: Essays on the History of Copyright
(Ronan Deazly et al. eds., 1st ed. 2010) (available at
https://jstor.org/stable/j.ctt5vjt9v.5))); (3) embody a
fundamental bargain in which the government grants a
limited monopoly to encourage and reward creativity and
innovation and then provides that the public gets the benefit
of such efforts after the monopoly’s expiration, see, e.g.,
Fogerty v. Fantasy, Inc., 510 U.S. 517, 524 (1994) (“The
primary objective of the Copyright Act is to encourage the
production of original literary, artistic, and musical
expression for the good of the public.” (citation omitted));
Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 9
(1966) (“The patent monopoly was not designed to secure to
the inventor his natural right in his discoveries. Rather, it was

13
Facebook notes that “[a] trademark is a very unique type of
property.” Pirone v. MacMillan, Inc., 894 F.2d 579, 581 (2d
Cir. 1990). A trademark is defined by the Lanham Act as
“any word, name, symbol, or device, or any combination
thereof” used by a person “to identify and distinguish his or
her goods, including a unique product, from those
manufactured or sold by others and to indicate the source of
the goods, even if that source is unknown.” 4 15 U.S.C. §
1127; see also, e.g., Pirone, 894 F.2d at 581 (explaining that
trademark is not property in ordinary sense and, like majority,
highlighting role of consumer confusion). On the other hand,

a reward, an inducement, to bring forth new knowledge.”);
(4) are limited in scope (with copyrights available for
expressive works as set forth in the Copyright Act, see, e.g.,
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344-
61 (1991), and patents available for new, useful, and non-
obvious inventions concerning certain subject matter, see,
e.g., Bonito Boats v. Thunder Craft Boats, Inc., 489 U.S. 141,
146-56 (1989); (5) involve exclusive rights that are secured
(as the Constitution mandates) for “limited Times;” (6) are
obviously (as federal statutes) national in application; and (7)
are alienable, see, e.g., 17 U.S.C. § 201(d); 35 U.S.C. § 261.
4
I note that the Ninth Circuit has ruled that § 230(e)(2)
“does not apply to false advertising claims brought under §
1125 of the Lanham Act, unless the claim itself involves
intellectual property” (although it does apply to claims
pertaining to an established intellectual property right under
federal law, including “those inherent in a . . . trademark”).
Enigma Software Grp. USA, LLC v. Malwarebytes, Inc., 946
F.3d 1040, 1053 (9th Cir. 2019), cert. denied, 141 S. Ct. 13
(2020).

14
“state laws protecting ‘intellectual property,’ however
defined, are by no means uniform,” with such laws bearing
various names (e.g., trademark, unfair competition, dilution,
and right of publicity), legal elements, remedies, and
purposes. Perfect 10, 488 F.3d at 1118-19 & n.5. Such
confusion is only magnified by the fact that “material on a
website may be viewed across the Internet, and thus in more
than one state at a time,” and “defendants that are otherwise
entitled to CDA immunity will usually be subject to the law
of numerous states.” Id. Permitting litigation and liability
under such a tangle of disparate state law schemes would
threaten “the continued development of the Internet” as well
as “the vibrant and competitive free market that presently
exists for the Internet and other interactive computer services,
unfettered by Federal or State regulation”—even though
Congress found that the “Internet and other interactive
services offer a forum for a true diversity of political
discourse, unique opportunities for cultural development, and
myriad avenues for intellectual activity” and that the Internet
has flourished to the benefit of all Americans, “with a
minimum of government regulation.” § 230(a)(3), (4), (b)(1),
(2). In other words, the imposition of such liability would
simply constitute “another form of intrusive government
regulation of speech,” which Congress sought to prevent in
the first place. Zeran, 129 F.3d at 330.

“This web of inconsistent state laws is the very
definition of the ‘fettering’ state regulation that Congress
sought to avoid in enacting Section 230.”5 (Facebook’s Brief

5
The majority recognizes that Congress enacted a pro-
free-market policy. But it contends that Facebook downplays
the role of property in the functioning of a free market, noting

15
at 25 (quoting § 230(b)(2)). In fact, “right of publicity” laws
epitomize this “web” of disparate state laws.

“The appearance of near-uniformity in the adoption of
some version of the right of publicity belies the degree to
which the exact contours of the right differ significantly from
jurisdiction to jurisdiction.” Karyn A. Temple, U.S.
Copyright Off., Authors, Attribution, and Integrity:
Examining Moral Rights in the United States, at 115 (2019),
https://wwww.copyright.gov/policy/moralrights/full-
report.pdf (citing Joshua L. Simmons & Miranda D. Means,
Split Personality: Constructing a Coherent Right of Publicity
Statute, Landside, at 38 (May/June 2018),
https://www.americanbar.org/groups/intellectual_property_la
w/publications/landside/2017-18/may-june/split-
personality/)). For example, some states specifically define
the aspects of a person’s identity that may serve as the basis
for the claim, see, e.g., Okla. Stat. Ann. tit. 12, § 1449(A)
(“name, voice, signature, photograph, or likeness”); 42 Pa.
Cons. Stat. Ann. § 8316(a) (“name or likeness”), while other
states evidently bar uses that merely evoke a person, like a
modified race car, see Motschenbacher v. R.J. Reynolds
Tobacco Co., 498 F.2d 821 (9th Cir. 1974), or a celebrity
catch-phrase, see Carson v. Here’s Johnny Portable Toilets,
698 F.2d 831 (6th Cir. 1983). “And while most states
historically view the right as nondescendible, the modern
trend holds it capable of surviving the death of the celebrity.”

that “state property laws—along with contract laws—enable
the resulting formation of effective markets.’” (Majority
Opinion at 15 (quoting Ford Motor Co. v. Mont. Eighth Jud.
Dist Ct., 141 S. Ct. 1017, 1029 (2021)).) I note, however,
that § 230(e) does not include a “contract” exception.

16
Stacey L. Dugan & Mark Lemley, What the Right of
Publicity Can Learn from Trademark Law, 58 Stan. L. Rev.
1161, 1174 (2006) (citing 1 J. Thomas McCarthy, The Rights
of Publicity & Privacy § 9:18 (2d ed. 2005)); see also §
8316(b)(3), (c) (providing for survival of action after person’s
death with repose period of 30 years). Other differences
include whether a claim of right must be registered in order to
pursue a posthumous claim, whether the claimant must live in
the state whose law he or she wishes to invoke, and whether
the claimant needs to prove sufficient fame or show that his
or her persona has economic value. Temple, supra, at 115-16;
see also, e.g., § 8316(a) (“[a]ny natural person whose name or
likeness has commercial value”).

These differences are not surprising given the
confusion that exists regarding the specific basis of the right
of publicity. “In enacting right of publicity statutes,
commentators have noted that many states struggled to adopt
a strong, consistent theory of why the right exists and what it
should be designed to protect.” Temple, supra, at 115 n.652
(quoting Simmons & Means, supra, at 38). Amicus SAG-
AFTRA acknowledges that the right of publicity “derived
originally from laws protecting one’s privacy.” (Amicus
SAG-AFTRA’s Brief at 18.) Especially when compared with
patent and copyright laws, this area of the law is relatively
new. See, e.g., Dugan & Lemley, supra, at 1167 (“Before the
late nineteenth century, individuals had little recourse against
the use of their names or images by unauthorized parties.”).
As the law review article cited by the majority indicated, the
right had its origins in the famous 1890 law review article by
Samuel Warren and future Justice Louis Brandeis proposing a
new “Right to Privacy.” Id. at 1167-68 (citing Samuel D.
Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv.

17
L. Rev. 193 (1890)). “Although their article occasionally
strayed into broad generalities suggesting that individuals
should have property rights in their personalities, their
proposed cause of action focused narrowly on the problem at
hand: ‘to protect the privacy of private life.’” Id. at 1168-69
(quoting Warren & Brandeis, supra, at 215). Accordingly, §
625C of the Restatement (Second) of Torts provides that
“[o]ne who appropriates to his own use or benefit the name or
likeness of another is subject to liability to the other for
invasion of privacy.” While recognizing that the right is in
the nature of a property right, Comment a to this section goes
on to state that “the protection of his personal feelings against
mental distress is an important factor leading to a recognition
of the rule.”6 See also Corabi v. Curtis Publ’g Co., 273 A.2d
899, 918 (Pa. 1971) (addressing Restatement), abrogation on
other grounds recognized by Am. Future Sys. v. Better Bus.
Bureau of E. Pa., 923 A.2d 389 (Pa. 2007). Furthermore, it is
clear that, at least in certain states, the right of publicity is
particularly broad in nature—and certainly broader than the
purported federal counterparts.7 See, e.g., White v. Samsung

6
Hepp similarly alleged (as the majority recognizes)
that her likeness was used to promote a dating service,
thereby misappropriating the effort she spent to build a
valuable reputation (which could confuse consumers by
suggesting that she endorses the service). However, she also
alleged that “Defendants’ sexualization of Plaintiff’s image
and use for prurient and illicit purposes is abhorrent and
disgusting.” (A61.)
7
Amicus EFF asserts that, “despite the Supreme
Court’s rough analogy in [Zacchini v. Scripps-Howard
Broadcasting Co., 433 U.S. 562 (1977), between rights of

18
Elec. Am., Inc., 989 F.2d 1512, 1514 (9th Cir. 1993)
(Kozinski, J., dissenting from order rejecting suggestion for
rehearing en banc) (“[I]t’s now a tort for advertisers to remind
the public of a celebrity. Not to use a celebrity’s name, voice,
signature or likeness; not to imply the celebrity endorses a
product; but simply to evoke the celebrity’s image in the
public’s mind. This Orwellian notion withdraws far more
from the public domain than prudence and common sense
allow. It conflicts with the Copyright Act and the Copyright
Clause. It raises serious First Amendment problems. It’s bad
law, and it deserves a long, hard second look.”).

publicity on the one hand and patents and copyrights on the
other hand], it is hard to see how publicity rights fulfill any
public interest in promoting creativity or invention, rather
than a general interest in protecting people against unfair
commercial exploitation and unwanted attention.” (Amicus
EFF’s Brief at 13.) “Celebrities do not need any special
incentive to have a public identity, nor do regular people.”
(Id.) Dugan and Lemley likewise rejected this
“incentive/copyright model” for right of publicity claims.
Dugan & Lemley, supra, at 1186-90. According to them,
there was no empirical evidence to show that celebrities
would invest less energy and talent in becoming famous
without a publicity right, id. at 1187-88, and, in any event, “it
is not at all clear that society should want to encourage fame
for fame’s sake,” id. at 1188 (footnote omitted) (“Unlike
copyright law—which aims to promote the production of
valuable works of authorship that enhance the quality of
discourse and understanding in our society—the right of
publicity rewards those who, with luck, hard work, or
accident of birth, happen to join the ranks of the famous.”
(footnote omitted)).

19
 The majority attempts to limit the scope and effect of
its ruling. Accordingly, it contends that its holding neither
threatens free speech nor opens the proverbial floodgates.
“And we express no opinion as to whether other states’ rights
of publicity qualify as intellectual property as a matter of
federal law.” (Majority Opinion at 22.) The majority
likewise offers no opinion about Hepp’s Pennsylvania
common law claim.

However, this decision—which it bears repeating is
the first circuit court ruling to hold that the intellectual
property exception applies to state “intellectual property”
laws (specifically including at least one state’s right of
publicity statute) and in the process to reject the Ninth
Circuit’s holding in Perfect 10—does threaten to open the
floodgates. Internet service providers now face the prospect
that so troubled the Ninth Circuit—“Because such laws vary
widely from state to state, no litigant will know if he is
entitled to immunity for a state claim until a court decides the
legal issue.” Perfect 10, 488 F.3d at 1119 n.5. In this case,
Facebook does not even know whether Hepp’s common law
right of publicity claim falls under § 230(e)(2). Such
uncertainty as well as the probability of additional litigation
in the future together with the real possibility of being held
liable under disparate and often very expansive state law
“intellectual property” regimes would encourage internet
service providers to censor more content—even though
Congress “recognized the threat that tort-based lawsuits pose
to freedom of speech in the new and burgeoning Internet
medium,” enacted § 230 “to maintain the robust nature of
Internet communication, and, accordingly, to keep
government interference in the medium to a minimum,” and

20
made the policy choice “not to deter online speech through
the separate route of imposing tort liability on companies that
serve as intermediaries for other parties’ potentially injurious
messages.” Zeran, 129 F.3d at 330-31. The fact that
“defendants that are otherwise entitled to CDA immunity will
usually be subject to the law of numerous states,” Perfect 10,
388 F.3d at 1119 n.5, only further compounds the pressure to
restrict speech.

Section 230 “paved the way for a robust new forum for
public speech as well as ‘a trillion-dollar industry centered
around user-generated content.’” Bennett v. Google, LLC,
882 F.3d 1163, 1166 (D.C. Cir. 2018) (quoting Eric Goldman
& Jeff Kosseff, Commemorating the 20th Anniversary of
Internet Law’s Most Important Judicial Decision, The
Recorder (Nov. 10, 2017), perma.cc/RR2M-UZ2M). The
Internet has seen “staggering” growth since the 1990s. (See,
e.g., Amicus SAG-AFTRA’s Brief at 16-17 (noting that there
were about 40 million Internet users in 1997 but that, in 2020,
there are roughly 4.66 billion users).) Even Hepp
acknowledges that “it may be true that the protections
afforded Internet-based Internet companies under § 230 of the
CDA initially played a crucial role in creating what is now the
modern Internet.” (Appellant’s Brief at 16-17; see also id. at
16 (“In 2007, when Perfect 10 was decided, the Internet with
its concomitant limitless potential for opening portals for
commerce, public discourse, science, education and other
areas, was in its adolescence.”).) The parties and their
respective amici dispute whether the protections of § 230 are
still necessary and whether the negative consequences of
immunity in this context (continue to) outweigh its positive
effects (including whether or not the technology necessary to
monitor and remove materials from their sites is readily

21
available). However, these are all matters for Congress—and
not the courts—to address.

Under the circumstances, I have no choice but to
follow the Ninth Circuit’s example and conclude that §
230(e)(2) is limited to federal intellectual property laws
and—at most—state laws only where they are co-extensive
with such federal laws. Because Pennsylvania’s right of
publicity law clearly is not co-extensive with federal
intellectual property law,8 I would affirm the District Court’s
dismissal of Hepp’s claims against Facebook as well as its
denial of the motion to amend with respect to NKL.

8
Although the majority compares the right of publicity
to patent, copyright, and (especially) trademark rights, they
clearly are not the same thing.

22