On 24 August 2016, Jason Parker and other Twitter users residing in Alabama filed a putative class action suit against Twitter and Hey Inc., the maker of the Stolen app, which allows players to use Twitter profiles, including those of the plaintiffs, to create profile cards to be traded online. Plaintiffs claim this is a violation of the recently enacted Alabama Right of Publicity Act, Alabama Code 1975 § 6-5-770, et seq.
According to the complaint, Hey entered into a partnership with Twitter around June 2015. The micro-blogging company allowed Hey to access its application programming interface so that information about Twitter’s users accounts could be imported into the app. Hey then imported the identities of Twitter users, including their names and photographs, into the app, even though they had not consented to it.
Hey, Inc. started selling its “Stolen” app on October 2015, by invitation only or to everyone with a verified Twitter profile. Stolen users could buy and sell Twitter profile images online as if they are trading cards. They were given some virtual credit when signing up for the game and earned more credit when playing the game and could buy more credit using real-world currency.
Initially, the profile mentioned that the profile “belonged” to the Stolen user who “owned” the profile he had bought, but this was changed to show instead that the player had “stolen” the profile. To steal a profile meant that a user had bought a particular profile for a higher price than the one paid by another user.
Even more troublesome, users owning a particular profile on Stolen could alter the name of the profile, even by using derogatory terms. This led Representative Katherine M. Clark (D-MA5) to send a letter on 12 January 2016, to Jack Dorsey, Twitter’s CEO, and to Tim Cook, CEO of Apple, which sells the app. Representative Clark was concerned about possible use of this app as a “tool to harass, bully and intimidate,“ particularly women and people of color.”
The renaming function was deleted by Hey on 12 January 2016, but Representative Clark was also concerned about the use of the Twitter profiles without the consent of their owners. She asked Dorsey to “immediately suspend Stolen access to Twitter until nonconsenting profiles are removed and safeguards are implemented to ensure that no Twitter profile may be used by the [app] without clear, express consent.”
Hey temporarily pulled the app from the Apple’s store the same day, posting on Twitter: “We’ve heard everyone’s concerns and have decided the best thing to do is to shut down.” It then launched a new app, “Famous: The Celebrity Twitter,” which the complaint alleges is merely a re-brand of Stolen, because its “nature and core functionality (and look and feel) remain the same.” The complaint further argues that the app continued to “allow its players to display ownership over real-life people by spending virtual currency,” and that it is just “Stolen with a new name.” They claim this a violation of Alabama right of publicity law.
The broad scope of the Alabama Right of Publicity Act
The Alabama Right of Publicity Act went into effect on 1 August 2015. It protects the right of publicity of individuals “in any Indicia of Identity,” which is defined by Section 6-5-771 as “[i]nclud[ing] those attributes of a person that serve to identify that person to an ordinary, reasonable viewer or listener, including, but not limited to, name, signature, photograph, image, likeness, voice, or a substantially similar imitation of one or more of those attributes.” The scope of the Alabama law is rather broad, as “indicia of identity” protects even representation merely evoking the person, if it is substantially similar, which is a concept open to interpretation.
The commercial use of the indicia of identity of a person without consent entitles this person to monetary relief, statutory and punitive damages, and injunctive relief. The use must have been “in products, goods, merchandise, or services entered into commerce in this state, or for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or services, or for purposes of fund-raising or solicitation of donations, or for false endorsement.” In our case, there is little doubt that the Alabama Right of Publicity Act protects Twitter profiles, even if the profile does not feature a person’s real name, but rather her avatar or other biographical element allowing for her identification.
There is no federal right of publicity law, and the states have their own laws, which differ in scope. New York right of publicity law, New York Civil Rights Law §§ 50 and 51, protects only the commercial use of a “name, portrait or picture.” California law, California civil Code section 3344-3346, is broader than New York law as it protects against unauthorized commercial use of “name, voice, signature, photograph, or likeness,” but is not as broad as Alabama law. Such difference in state right of publicity laws may lead to forum shopping. Indeed, the Alabama law would have favored Lindsay Lohan, who lost in September 2016 her New York right of publicity suit against the makers of the video game Grand Theft Auto, because the game “never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan.” Lindsay Lohan, however, may have won her case under Alabama law.
Black market for influencer marketing?
This case is interesting as it shows that social media profiles have monetary value, and for different reasons. In this case, Twitter was able to license their use for Hey’s commercial gaming purposes. But profiles can also be used for marketing purposes. An article published online noted that if a player owns a profile on Stolen, he could then use it to promote his own products. Such use would create a sort of black market for influencer marketing, which occurs when companies are tapping into the influencing buying power of a social media star to promote their products or services. Even if, say, Kim Kardashian does not endorse a particular product on her various social media accounts, the company making the product could still “steal” her profile on Stolen and use it as a way to promote the product, as long as it is able to hold the profile. This complaint is only against Hey and Twitter. Could a complaint against one of the Stolen users also be successful, if filed?
This article was first published on the TTLF Newsletter on Transatlantic Antitrust and IPR Developments published by the Stanford-Vienna Transatlantic Technology Law Forum.
Image is courtesy of Flickr user Esther Vargas under a CC BY-SA 2.0 license.
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