For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Thursday, 17 April 2014

Twitter suspends @JamesDean account: an impersonation rebel with(out) a cause?

@JamesDean
Those IPKat readers who are also keen followers of Hollywood stories, gossip and business-related news will probably remember when in February last The Hollywood Reporter published an article concerning James Dean (or rather, his estate), Twitter and the account @JamesDean. 

Of course iconic James Dean, who died in 1955 aged just 24, was sadly never able to tweet. 

What happened here is that an anonymous Twitter user registered the username @JamesDean and tweeted tributes to legendary Hollywood rebel from this account. Although often referring to James Dean in third person, this account did bear no mention that it was neither an officially sanctioned nor a fan account. 

Apparently CMG Worldwide, a firm that manages the actor's (and many other dead celebrities') licensing empire, was not particularly happy about this state of affairs [well, sniffs Merpel, if CMG was so concerned about unauthorised uses of James Dean's name and likeness, why didn't it think of registering the @JamesDean account in the first place, as other more tech- (or just marketing-) savvy celebrities are used to do?]


Shammai, Gigi and Claire deceptively
portrayed to look as if they were only
concerned about their meal,
when they are actually pondering
Twitter impersonation policy
Hence, it repeatedly asked Twitter to suspend the @JamesDean account. However, the micro-blogging website refused, on grounds that a certain degree or likelihood of confusion is required by its applicable removal policies. 

Twitter's impersonation policy indeed states that "Accounts with similar usernames or that are similar in appearance (e.g. the same background or avatar image) are not automatically in violation of the impersonation policy [but this Kat suspects that this may nonetheless result in a violation of Twitter copyright policy]. In order to be impersonation, the account must also portray another person in a misleading or deceptive manner." 

Could a @JamesDean follower possibly be misled into believing that those tweets actually came from James Dean himself? That would be actually quite miraculous indeed ...

Also Twitter's trademark policy implies that a certain degree of user (consumer) confusion is required [is this compatible with EU trademark law, especially when it comes to trademarks with a reputation?]: "Using a company or business name, logo, or other trademark-protected materials in a manner that may mislead or confuse others with regard to its brand or business affiliation may be considered a trademark policy violation." If you take a trip to the "James Dean" trademarks registered with the US Patent and Trademark Office, you'll see that there are just two trademarks still "live", for use in connection with "giftware - namely, porcelain plates, mugs and figurines" and "clothing, namely T-shirts, jackets and headwear", respectively.


Probably reading a guide
to the Top5 ways you can breach
the law on Twitter without knowing it
Following Twitter's repeated refusal to suspend the @JamesDean account, James Dean Inc and CMG filed a complaint before an Indiana state court claiming - among other things - trademark infringement pursuant to Section 32(1) or 43(A) of the Lanham Act, false endorsement pursuant to Section 43(A) of the Lanham Act, and breach of James Dean's right of publicity, as per the Indiana State Statutory Right of Publicity. Among other things, this states that "A person may not use an aspect of a personality's right of publicity for a commercial purpose during the personality's lifetime or for one hundred (100) years after the date of the personality's death without having obtained previous written consent". This Kat understands that Indiana law is particularly generous if compared to other statutes, like that of the state of New York, which do not recognise a posthumous right of publicity.

In all this, it would seem that no claim of copyright infringement was made, probably [but this is just Kat-speculation] because CMG does not own the copyright to the James Dean images - including the profile picture - published by @JamesDean.

Could Twitter rely on the First Amendment, for instance by referring to the transformative value of @JamesDean, similarly to what happened with this Kat's beloved Mad Men and the legal row over its opening credits?


Ehm ... Are you perhaps
being a little
too bold here?
We may never know, as yesterday former guest Kat James John Roberts reported on Gigaom that Twitter "quietly suspended" the @JamesDean account in the last few weeks. 

Twitter declined to comment, on grounds that it does not comment on individual account actions for privacy and security reasons, while CMG CEO stated that We looked at it as a positive sign that as the litigation moves forward, Twitter has suspended the site. No, there isn’t any judgement yet”.

Although the (current) outcome of the James Dean case appears (deeply) linked to the peculiarities of Indiana law, what might the broader implications be, both in terms of Twitter impersonation (and trademark) policies and user activities over this social networking site? 

This Kat wonders whether all this may mean that the "bio" section of one's Twitter account is bound to become an actual "legal disclaimer" section about (1) Who you are NOT; (2) What you do NOT do; (3) Who/What you do NOT endorse. 

Well, says Merpel, isn't this already what the bio section of lawyers is all about (RTs not endorsements, personal views only, not my employer's opinions, etc)?

4 comments:

Anonymous said...

I don't know this area of law, but is it now established that Twitter is responsible for user-generated content on its site?

Eleonora Rosati said...

Hi Anonymous, I believe this is not the case. See Twitter ToS: "All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Services and, we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk." https://twitter.com/tos?PHPSESSID=57a411f70b1964a2bc78b82638ba1843

Anonymous said...

Haha, how many of you dislike the ridiculous disclaimers on people's Twitter pages? Surely, re-tweeting something which is controversial implies that you've got an opinion/say or endorsement of some sort in the matter. Be real!

Some lawyers might tell you that the effectiveness of disclaimers (wherever that may be e.g. email, blogs etc) is neither here or there and are facts specific. This blog won't be taken by the Court as offering legal advice (whether it has a bold disclaimer or not).

Anonymous said...

Not sure Twitter is one of those sites (but Facebook is), that will try to remove liability while maintaining at the same time its right of ownership.

Check out the semi-recent brouhaha about Facebook claiming an ownership interest in anything posted on their social media vehicle.

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