Rider on a chopper
By: Domenic Romano & Josh Wueller

Even 60 years after his death, iconic movie star James Dean remains a celebrated public presence.  Now, a lawsuit brought by Dean’s estate against microblogging multinational Twitter has brought Dean’s claim to fame back into the spotlight.  CMG Worldwide is the Indiana-based company managing James Dean’s estate and commanding $3 to 5 million annually in licensing from “The Dean empire.”  CMG is seeking injunctive relief and monetary damages after Twitter’s refusal to shut down the handle @JamesDean.

The Twitter account, managed by unknown users, now has more than 8,000 followers and has sent more than 2,200 tweets.  Twitter, on the other hand, “strongly contests liability and does not believe [Dean’s estate] is entitled to any relief whatsoever.”  Referring to its Trademark policy Twitter found that “the account is not being used in a way that is misleading or confusing with regard to its brand, location or business affiliation,” and that therefore the user was not in violation.  Should fans and impersonators be allowed to tweet in the name of celebrities?

CMG alleges that Twitter and the account holders have violated a number of the estate’s intellectual property rights, including infringement of JAMES DEAN federal trademarks and false representation of Dean’s endorsement.   In addition, CMG has sued Twitter for violating James Dean’s posthumous right of publicity.  Indiana, like California, provides celebrities with particularly generous publicity rights.  In the Hoosier State, celebrities’ rights of publicity can survive the person’s death and be freely transferred to other parties like CMG.

CMG focuses on Twitter’s Fan Account Policy, which includes requirements that the account name not be the exact name of the account subject.  The policy also requires that the fan account’s bio include a statement to “distinguish it from the account subject,” (such as “fan account,” or “this is not affiliated with . . .”).  The @JamesDean page has been amended since the lawsuit was filed, with a tagline now clarifying that the account is “not associated with James Dean, Inc.”

 Who should have to police phony tweets?

The complaint also highlights Twitter’s reactionary (rather than preventative) approach to users’ policy violations. According to the social media site’s Parody, Commentary and Fan Account Policy, Twitter values users’ rights to expression,  encouraging its users to “share and receive a wide range of ideas.”  It believes users are in the best position to resolve disputes and doesn’t actively monitor content “except in response to a Terms of Service violation or valid legal process.”

This policy shifts the workload of vetting phony Twitter accounts to rightsholders, who must go through a lengthy, stressful and (at least according to CMG) uncooperative process in order to vindicate their rights.  Though Twitter is unlikely to take on any additional burdens, an approach where the company ensures compliance with its own rules at the inception of new accounts, rather than after a complaint has been raised, might streamline this process and prevent future lawsuits.  With over 635 million users and 135,000 new users per day, however, the burden of such an approach would certainly be great for Twitter.

Are trademark and publicity rights owners better suited for the task of dismantling accounts that may violate its trademark and publicity rights?  Or should Twitter—a billion-dollar tech company coming off of a remarkably successful IPO on the New York Stock Exchange—take a preventative, rather than reactionary, approach with its policies?

 

Rose - EXT

Domenic Romano

info@RomanoLaw.com

www.RomanoLaw.com

(212) 865-9848

Josh - EXT

Josh Wueller

info@RomanoLaw.com

www.RomanoLaw.com

(212) 865-9848

Contributing Authors: John Guccione & Matt Klegon

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