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Journal of Intellectual Property Law

Abstract

Today, the vast majority of American military servicemembers have active personal social media accounts. By creating and posting content online—particularly when in uniform—they run the risk of reflecting poorly on the image of the Department of Defense and their respective branches. Yet, the statutory and regulatory restrictions on content creation are loose and ambiguous. To combat this problem, either the Department and its branches should clarify their regulations, or Congress should amend its statutory protections. There is scholarly disagreement as to whether an entity’s right of publicity is violated when social media content is created that reflects poorly upon that entity, but absent from that discussion is whether a federal institution’s preferred brand and image can be violated by large amounts of employees creating adverse content.

The DoD’s updated regulations should be promulgated in a manner that provides clear guidance regarding what content is acceptable versus what content reflects poorly upon the image of the DoD and its branches. The current regulatory scheme leaves open doors to interpretation that are difficult to follow and overly flexible. This Note examines the problems that exist in the current regulatory and statutory schemes by applying intellectual property law principles and details the current development of right of publicity litigation in the social media context. With growing discord surrounding the issue and the ever-rising popularity of short-form content creation, this issue is both salient and unavoidable. The DoD will soon have to reckon with its outdated policies, and when it does, it should protect its publicity rights as much as possible.

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