Rebel with a cause (of action): Twitter suspends @JamesDean account

Introduction

Twitter recently became embroiled in a legal battle with representatives of James Dean’s estate, CMG Worldwide, over the @JamesDean Twitter account. CMG brought proceedings against Twitter for trade mark infringement and breach of James Dean’s right of publicity because of Twitter’s refusal to suspend the account and provide CMG with the account user’s information. However in recent weeks the social networking giant, which is often regarded as being reluctant to take action against users in respect of alleged IP infringements, has quietly suspended the @JamesDean Twitter account. This interesting development could impact significantly on the use of celebrities’ images by third parties in social media and on parody, tribute and fan accounts generally.

Background

In 2009 an anonymous individual created the @JamesDean account on Twitter. He or she used it to Tweet tributes to, facts about and quotes from the late Hollywood actor James Dean. The account profile did not claim to be authorised, but it also did not say that it was a fan account. However it often referred to Dean in the third person. The account had over 8,000 followers.

For over a year, CMG Worldwide, the licensing agency which controls the late actor’s licensing activities on behalf of his estate, repeatedly asked Twitter to suspend the account and identify the user. Twitter refused, claiming that the account did not violate their impersonation policy or their trade mark policy.

Twitter’s policies

For an account to breach Twitter’s impersonation policy, it would need to portray another person “in a confusing or deceptive manner”. As Dean is famous for (among other things) his tragically early, violent death, Twitter users – and especially the account’s followers, presumably fans of Dean – seemed most unlikely to be misled into thinking the tweets from the @JamesDean account came from the late actor himself.

Confusion is also needed to establish a breach of Twitter’s trade mark policy. Twitter considered that the @JamesDean account was “not being used in a way that is misleading or confusing with regard to its brand, location or business affiliation”. Only two JAMES DEAN registered trade marks are in force in the US and they are registered for giftware and clothing.

Posthumous publicity rights

Unhappy with Twitter’s response, CMG brought proceedings in the Indiana State courts for, among other things, trade mark infringement and breach of James Dean’s right of publicity, being the right of an individual (or here, his estate on his behalf) to control the commercial use of their name and image. The state of Indiana has an unusually favourable publicity rights statute for licensing companies as it protects against the unauthorised commercial use of a celebrity’s right of publicity during their lifetime and for 100 years after the date of their death.

It is estimated that the James Dean brand brings in around $3-5 million annually in licensing fees. CMG argued that the brand “will continue to be irreparably harmed and suffer actual damages” due to Twitter’s refusal to cooperate with suspending the @JamesDean account. They also pointed to Twitter’s parody, commentary and fan account policy which requires that “avatars not be trademarks or logos, that account names should not take the exact name of the subject and that bios should identify the purpose of the account”.

Twitter’s surprise move

A couple of months after CMG filed its complaint with the Indiana courts it was revealed that Twitter quietly suspended the @JamesDean account, even though a decision from the courts has yet to be handed down. The social networking site declined to comment on why, stating that it does not comment on individual accounts for privacy and security reasons. It is also unclear whether Twitter has provided CMG with the account user’s information as requested.

This is an unexpected move from Twitter, particularly in light of its usual approach to such matters. Moreover, it has a potential defence under the First Amendment, namely that the use of James Dean was transformative and had artistic relevance.

Comment

If the Indiana courts decide in favour of CMG, this could have far-reaching implications for social media. Unofficial fan or parody sites are a significant part of the social media ecosystem. For example, the @queen_uk parody Twitter account, tweeting humorous comments purporting to be by the Queen, has over a million followers and an associated merchandise and publishing business. The profile of the @queen_uk account makes clear that it is a parody account. However, considered in an English law context, disclaimers such as this are helpful in defending a trade mark infringement or passing off claim, but do not guarantee a successful defence.

A decision in favour of CMG could also have the practical effect of extending the posthumous publicity right as it applies to Twitter beyond the state of Indiana, and indeed worldwide, as Twitter maintains a single worldwide service. This would be a significant development as this right has tended only to be used to enforce against sellers of infringing branded merchandise. However, many dead celebrities such as Michael Jackson, Marilyn Monroe and Elvis Presley remain strong commercial brands and their estates see social media as a valuable tool for promoting this brand. It is therefore to be expected that they would want to protect their rights on social media. At the same time, a balance needs to be struck to ensure that freedom of artistic expression is not harmed.

In the UK, brand owners seeking to take action against parody Twitter accounts have already had some success: for example, in 2011 Princes Limited succeeded in removing the @shippamspaste account (sample Tweet: “theres no vegetarian pastes sorry but why not try the crab spread its only crabs”). However, Twitter’s suspension of the @JamesDean account may represent a softening of Twitter’s formerly robust resistance to brand enforcement, a phenomenon which we have observed over recent months.