Many, if not most, people tweet without much thought. It’s become a platform for some to unload their thought vomit on anyone who will listen (or in this case, read). And in some cases, the more outrageous the tweets, the more the followers will come. But tweeting is not without consequence. In fact, when you create your Twitter account, you agree to a whole slew of legal rules, whether you read the fine print or not. A couple of recent lawsuits have led us to wonder what types of behavior actually result in a legal battle. Are those fake John Galliano or Karl Lagerfeld accounts at risk? Tune in, tweeters, as you probably don’t want to lose your account (or end up in court).
There are many ways to get yourself in trouble on Twitter (we’re looking at you, Courtney Love). What we want to focus on specifically is what happens when someone uses the personal or business name of another to send out tweets.
The best place to start is the social media site’s own policies. Similar to federal trademark policy, Twitter forbids “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.” When complaints are received, accounts with clear intent to mislead will be suspended while those that are unintentionally misleading will be given an opportunity to correct the situation.
That said, Twitter users are “allowed to create parody, newsfeed, commentary, and fan accounts on Twitter,” provided that certain conditions are followed: the avatar should not be the an exact copy of a trademark or logo; the account name should not be the exact same as the subject without distinguishing words like “fan” or “fake”; and the bio should distinguish the account from the account subject with a statement like “this is a parody”. If these parody requirements are not met, a user risks being considered an impersonation, which is against Twitter policy when done so with intent to deceive or mislead.
These policies seem clear enough, easy to follow, and are pretty comprehensive. Yet there have been lawsuits on just such issues, typically looking to have a court do something Twitter wouldn’t.
In 2009, Tony La Russa, the manager for the St. Louis Cardinals baseball team at the time, brought suit against Twitter after an unknown user made a Tony La Russa Twitter account. The fake account included the manager’s pictures and bogus updates about his team. A line in the user’s profile stated, “Bio Parodies are fun for everyone.” The complaint alleged trademark infringement and dilution, misappropriation of name, and cybersquatting. Shortly after the case was filed, La Russa voluntarily dismissed his complaint.
In 2011, life insurance firm Coventry First brought suit against the creator of the @coventryfirst account. The parody account made fun of the insurance giant and sent out tweets like this: “sure,maybe health ins. comps. want u to die fast once you get sick but they want u healthy for a long time first.coventry wants u dead NOW!” So, it’s not really surprising that the company was more than just a little upset. Among some of the complaints, Coventry claimed trademark infringement and dilution, unfair competition, and unjust enrichment. The insurance company eventually dropped the suit.
And most recently, CMG Worldwide, which manages the commercial estates of many dead celebrities and runs the James Dean licensing empire, sued Twitter for failing to shut down the @JamesDean Twitter account run by an anonymous individual. According to the suit, CMG attempted to convince Twitter to close the account for more than a year without success. With no action from the social media giant, CMG took the issue to an Indiana court claiming, among other things, trademark infringement, false endorsement, and unfair competition (has this become repetitive yet?). In its request to remove the case to a different court in Indiana, Twitter stated that it “strongly contests liability and does not believe Plaintiff is entitled to any relief whatsoever.”
All three of these cases have some very important legal weaknesses. Each one makes a trademark infringement claim, which is surprising to us as there doesn’t appear to be any evidence that the parties running the fake Twitter accounts were doing so for commercial purposes, which is a must in order to make a successful infringement claim. What’s more, courts generally recognize First Amendment protection for parodies, so long as it’s clear that the parody is not the original.
For basically the same reasons, the unfair competition claims are also tenuous as confusion would be hard to show and, again, there does not appear to be a commercial aspects to the fake accounts. The dilution claims might be an uphill battle in certain cases because it has to be proven that the trademarks in question are famous.
And as for the suits against Twitter, Section 230 of the Communications Decency Act protects Internet service providers from liability for content posted by third parties. While there are limitations to Section 230, most notably dealing with federal intellectual property law, the Tiffany v. eBay case made clear that even when trademark infringement is at issue, it’s never easy to hold an intermediary liable.
Many fashion personalities sort of lend themselves to being parodied: Karl Lagerfeld, obviously, John Galliano, Anna Wintour’s … look (as in, how rare a smile is), to name a few. And in many cases, a parody Twitter account will be kosher. Just be sure you aren’t impersonating and make is painfully clear that you’re a fake. And if your Twitter account is related to a business, well, then you should just be creative and come up with your own identity.
JENNIFER WILLIAMS is a recent law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. For more from Jennifer, follow her on Twitter.