Lindsay Lohan claims that a surveillance tape of her stealing a necklace violates her publicity rights

Charlie Sheen used publicity rights claims to block woman’s right’s activists from selling t-shirts critical of the warlock’s treatment of women.

And here at Avvo? Well, we’re no strangers to lawyers claiming that our listing them on Avvo infringes on their trademarks or publicity rights.

The concept of a “publicity right” is the red-headed stepchild of intellectual property law, a creature of state law not constrained by the statutory limits or decades of case law underlying related claims such as trademark, copyright and defamation. Which explains, to an extent why we see such overreaching claims in this area.

In some cases (like Sheen’s), raising publicity rights is simply an end run on an obviously invalid trademark claim. In others – like the ones we see at Avvo from time to time – people confuse the commercial nature of the alleged “infringer” with a use of someone’s name or image in commerce.

While that may seem like a confusing distinction, it’s actually dead simple. It doesn’t matter if the person or company using your name is a commercial entity. What matters is whether they are specifically trading on your name, in a way that isn’t otherwise protected by the first amendment. And the first amendment provides broad latitude to use trademarks and names for the purposes of description, reporting, criticism, parody, etc. Or creating a directory of doctors and lawyers.

So: while claiming that Lindsay Lohan endorses your line of stylish home monitoring anklets would violate Ms. Lohan’s publicity rights, publishing an article about her latest exploits in a for-profit media vehicle would not. Because if it were, we couldn’t have The New York Times – much less TMZ. And what kind of world would that be?

Last week, Long Term Disability Attorney, Richard Rizk was in town.  I had a chance to sit down with him and talk about my favorite topic:  Avvo.  Fortunately we had a videographer on hand and recorded the session for your enjoyment.  If you’re considering watching, know that this is an extemporaneous conversation and Richard pressed on more than a few issues where he doesn’t see eye to eye with Avvo.

Part II
Part III

Editors note: This guest post is by Aaron Kelly, a Scottsdale, AZ attorney who deals extensively with internet-related legal issues.

Internet defamation can be devastating for any business. With the speed and accuracy that search engines use to index new online content, defamatory content can quickly appear on the first page of Google when a potential customer searches for your business. But before you fire off an angry letter or threaten litigation there are certain things that you must keep in mind.

First and foremost, the old adage, “if you make one client happy he’ll tell three people…if you make one client mad he’ll tell thirty people,” rings true today, and in fact is amplified by the way community review sites work. Sites like Yelp, Google Local, and even Avvo allow people to review a particular person or business. These sites do not, however, provide any of their own reviews, which is why they are not personally responsible for the content their users post. But what happens if the person who posted the comment did so with the intention of defaming you or your business?

The first, and most ideal strategy, is asking nicely. Like our mothers said, minding your manners can pay off and it is no different over the Internet. Some webmasters may, if you ask them nicely, remove defamatory content. [ed. note - Avvo won't remove a review, even if you ask nicely. But we will double-check to ensure the review meets our Community Guidelines and was not left in error for the wrong professional] One of the primary methods of persuasion used to get them to do this is that, as webmasters, they gain credibility by ensuring that only truthful content is on their website. After the content is removed, you can put the URL in Google’s cache removal form along with the term which no longer appears at the URL, and Google “should” de-index and de-cache the link relatively quickly.
The second method is through a court order to have the defamatory page de-indexed from the search engines. In essence, what happens is the affected business files a lawsuit against the person who posted the material. If the poster is unknown, then things get tricky and you will have to go through the discovery process. Once the poster’s identity is revealed, the lawsuit will be amended with their name. As a part of the lawsuit, an injunction is sought, declaring each specific URL where the material appears to be is unlawful. Google will then remove any unlawful content from its index which is listed in that order.

Sometimes, fighting defamation like this can be exhaustive to your business’ resources, and it might be best to ignore it if the negative material is getting little attention. If the defamation is getting noticed by other potential customers, but the above methods seem overwhelming to you, a positively worded rebuttal and a statement about your company’s commitment to customer service might be a good alternative.

This is just a general summary of some of the main methods used in getting rid of libelous material about your business. For more information about removing defamatory content from search engines and websites in general, you should consult an attorney who is experienced in handling these kinds of matters.

Let me start out by acknowledging I have an axe to grind.  We don’t agree with business premise of Medical Justice, the company forces patients to sign a legal gag order before they have access to healthcare services.  This censorship of the patient voice, is obviously completely contrary to the transparency and guidance we bring to the medical profession.  Instead of silencing patient experiences, Avvo provides a platform for patients to share through reviews (both positive and negative) of individual doctors.  The notion that Americans’ access to healthcare could be contingent on their willingness to give up their First Ammendment rights of free speech is deplorable.

Medical Justice disagrees with this position and would force patients to sign gag orders in order to see a doctor.  The beauty of this country is that we can have different opinions and the beauty of the web is that we can share and debate those opinions.

Unfortunately, Medical Justice has taken this one step further – deleting content from their own blog in which Avvo and Medical Justice founder, Jeffrey Segal debated the value of patient reviews.  In a post called “OK Docs, Your Talent Can be Reduced to a Number Between One and Ten”, Segal initially refused to post comments written by Avvo.  Eventually he deleted the post from his blog altogether.

Fortunately, for now, we can still see it by accessing Google’s cache of the post.

And while Segal refused to post all of our comments when the post was live, I did keep a copy.  In the spirit of transparency and a small protest against gag orders and censorship, I’ll share Avvo’s last comments which pushed Jeffrey Segal to delete his own words:

Some comments on this thread remind me of the initial reaction from some of the legal practitioners when launched in 2007.  Since then, Avvo has become the market leader in legal – driving more business to the industry than any other directory.  How did a newcomer like Avvo stand out in a crowded and competitive field?  By offering consumers access to more information and better guidance than they’ve ever had before.

Put yourself in the shoes of the average American with a child facing a life-threatening medical issue.  You want to make a smart decision in the practitioner that you hire.  You want the very best doctor in your city, or in the country.  How do you find her?  The medical directories you visit are thinly veiled pay for play shills.  The Yellow Pages show you who has the largest advertising budget.  Your child’s life is in jeopardy.  You are lost and you are scared.

Enter Avvo.

At Avvo, you find detailed background profiles of doctors – and while you don’t have the medical background to identify the prestigious school, awards and associations on the doctor’s resume, the Avvo Rating translates these elements into an easy to understand numerical scale.  On Avvo, you also have access to client reviews – that bedside manner that is so important.

The gag orders that Medical Justice peddles serves to choke out patient access to those client reviews.   Jeff, if you had your way, patients would be relegated to playing roulette with pay for play shills like the yellow pages where doctors compete based on the size of their marketing budget instead of the strength of their resume, bedside manner and industry prowess.  You would silence those patients who have had horrendous experiences with awful doctors.  This is old school thinking. The industry is evolving. Medical Justice’s gag orders retard that evolution.

You raise issues around transparency, using the Coke analogy, but you miss the point.  All of the “ingredients” of the Avvo Rating are in plain sight, in front of every consumer – right on that doctor’s profile.  Avvo offers more transparency than any medical directory.  Additionally, our client reviews must meet stringent community guidelines, which are laid out in a blog post here.

Jeff, you actually make the most important point:  “If your Avvo number has any connection to objective reality, the market can and will value it.”  This is exactly what happened in the legal industry and is starting to happen in medical – over 2 million patients visiting Avvo every month, embracing the transparency we provide to make smart, informed decisions.  You can’t argue with that groundswell of interest among the American public.  Embrace progress, don’t stifle it with contracts that silence the public’s right to voice their dissatisfaction with the bottom end of the medical spectrum.

Medical Justice would silence not only patients’ right to share their bad experiences about a doctor, but also squelch any discourse regarding their own business practices.  We have recently seen in Libya and Egypt how access to information can transform a society.  While that may sound overly lofty, this is America and we are the vanguard of basic rights like free speech and access to healthcare.  Making one contingent on forgoing  the other is repugnant.  Medical Justice would send all patients back to the dark ages.