Twitter’s finished being a rebel, at least when it comes to standing up for a James Dean fan who is being sued by a celebrity licensing company that wants to claim the fan’s @jamesdean account.
Despite Twitter’s earlier claims that the account, which consisted of quotes and photos of the late Hollywood bad boy, did not violate its trademark policy, the company quietly suspended the account sometime in the last few weeks.
The dispute came to light in February on reports that Indiana-based CMG Worldwide was suing Twitter to learn the identity of @JamesDean, who had been tweeting tributes like the one below since 2009:
CMG Worldwide filed the lawsuit late last year, claiming that the @jamesdean account infringed on federal trademark laws and Indiana rights of publicity.
“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,” Mark Roesler, CEO of CMG, stated via email.
Twitter, which has a reputation for defending its users in court, said it does not comment on individual account actions for privacy and security reasons — meaning it’s unclear for now if it has agreed to tell CMG who ran the @jamesdean account.
Should the dead have publicity rights?
The case is important because the outcome could limit how people use historical and fictional characters as part of their social media accounts. It also raises policy questions about the wisdom of extending rights of publicity — which are separate from copyright — to dead people.
In contrast to states like New York, which doesn’t recognize a posthumous right to publicity, CMG’s home state of Indiana awards 100 years of protection. It’s unclear how such laws, which typically are used to protect physical products like masks and other merchandise, apply to Twitter and other online realms — and to what degree CMG can enforce Indiana’s law beyond the border of that state.
Some lawyers are skeptical about the efforts of CMG, which also asserts rights to figures like Jackie Robinson and Bettie Page, and whose website says “then, now and forever” to describe its intellectual property services:
“With posthumous rights, what’s really bizarre is that publicity rights grew out of privacy rights — this notion that someone has a privacy right after you’re dead is odd,” according to intellectual property attorney, Jonathan Band.
Others are concerned about the potential harm to free speech of expanding these laws.
“The real implication is for artistic expression,” said Ken Paulson of the First Amendment Center at Vanderbilt University, noting that Andy Warhol built his career on celebrity images.
Paulson is also skeptical of awarding property rights where none existed before, and where there may be no moral or economic justification for doing so.
“The broader question is how does society benefit from ensuring that James Dean’s great-great-grandson earns money from his likeness? Why build a system that would allow that to happen?” he said, noting that the heirs of figures like Daniel Boone or Davey Crockett don’t appear to be short-changed by their likeness being public.
Roesler of CMG justified the expanded rights on the grounds that dead celebrities can be akin to commercial brands that are entitled to long-term protection.
“With certain personalities, you can develop a brand – Walt Disney, James Dean – that go well beyond their lives,” he said, adding that, in the case of Dean, “We don’t want every use, just the official Twitter handle.”
Updated at 3:50pm ET to include Twitter statement