It's fairly well-understood by now that impersonation is a significant problem on the internet. How do you know that a person speaking online actually is who they say they are? Different social media sites handle the issue in their own ways. Twitter will offer certain well-known users the option of a "Verified" account. Facebook requests that users to give their actual names instead of fictitious handles.
Still, social media continues to see its share of notorious imposters. St. Louis Cardinals Coach Tony LaRussa is the poster boy for this phenomenon. In 2009, he sued Twitter in order to close down an account that was posting all manner of offensive and embarrassing tweets under his name. Such celebrities as Sarah Palin, Shaq and Kanye West have encountered similar issues. Even employees of an advertising agency were caught posting offensive tweets under the name of a rival business.
But who would ever expect to be impersonated by their employer? That's what (allegedly) happened to Jill Maremont, a Chicago-area interior designer and former employee of Susan Fredman, who Maremont characterized as "one of Chicago's most prominent residential interior designers." (All of the following factual statements come from Maremont's complaint, which the court has assumed to be true for purposes of Fredman's motion to dismiss, as it must--but they have not yet been tested by discovery or trial.) In the course of that employment, Maremont apparently developed a name for herself, and a significant following on her personal Facebook and Twitter accounts. She also authored a blog on Fredman's website called Designer Diaries: Tales From the Interior, which she admitted belonged to Fredman and her company.
In September 2009, Maremont was seriously injured in an automobile accident. She says that, mere days afterwards, as she lay in the hospital recovering from surgery, co-workers arrived with notebooks, asking her about work projects. Later, other hospital visitors informed her that someone at Fredman's company was continuing to post in Maremont's name--to her personal Facebook and Twitter accounts. (It's unclear whether they continued to attribute the Fredman-owned blog to Maremont as well.) As is true of many social media accounts, these pages were branded with Maremont's photograph. The posts allegedly promoted Fredman's company, and gave no indication that Maremont herself was not writing them.
Maremont says that she asked her co-workers to stop posting under her name, but that they kept doing it anyway. Only three months later, after Maremont had finally been discharged and transferred into outpatient rehabilitation, was she able to see for herself what had been posted in her name. In all there were 17 tweets (and an unspecified number of Facebook posts), all but one of which promoted Fredman's company. The posts ended only when Maremont finally changed the passwords to her accounts.
Maremont sued, alleging (1) false endorsement under the Lanham Act, (2) infringement her of the right of publicity under Illinois law, and (3) invasion of privacy. Fredman moved to dismiss all three claims as a matter of law. In a March 15, 2011 opinion, Judge Amy J. St. Eve of the US District Court for the Northern District of Illinois dismissed the privacy claim, but allowed the other two to proceed.
The two surviving causes of action--False Endorsement and the Right of Publicity--are quite similar, and very often alleged together. Section 43(a) of the Lanham Act prohibits the "[use] in commerce [of] any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person." Similarly, although the exact parameters of the Right of Publicity vary from state to state, it generally grants individuals the right to control the commercial use of their own likeness. The basis of each claim here was that Fredman's employees allegedly pretended to be Maremont on Facebook and Twitter, unjustly benefiting from Maremont's goodwill among her personal followers.
The case raises a host of interesting issues, both factual and legal. On the factual side, one gets the sense that the whole story has yet to be told here. If Maremont's Facebook and Twitter accounts were truly, wholly "personal" in nature, why did her co-workers have her passwords in the first place? (Then again, I've seen enough of my own friends punked on Facebook after inadvertently leaving themselves logged in on someone else's computer to know that it happens.) Fredman's motion characterizes Maremont as Fredman's "Marketing, Publicity, and E-Commerce Director," and all parties agree that Maremont wrote a blog about interior design that Fredman owned and hosted. Were Maremont's Facebook and Twitter posts--also about interior design--truly outside the scope of her employment with Fredman? Did the people who "followed" her on these sites do so because of Maremont's own reputation as a designer--as Maremont argues--or because of her role with Fredmont, or for some other reason? To what extent can anyone prove why someone else follows them online? Only additional (and creative) discovery will answer these questions.
Legally, the ruling suggests continued evolution in the courts' understanding of the Right of Publicity and the related federal claim of false endorsement. There is still disagreement between different jurisdictions on exactly who should be able to claim the publicity right, and what exactly it protects. For example, as one court explained in an influential case involving Johnny Carson, the right has traditionally been understood as "protect[ing] the commercial interest of celebrities in their identities. The theory of the right is that a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity." Likewise, "[f]alse endorsement occurs when a person's identity is connected with a product or service in such a way that consumers are likely to be misled about that person's sponsorship or approval of the product or service." Not all courts use the word "celebrity," but the person's likeness generally has to have some commercial value. In many jurisdictions, average Joes like me don't make the grade.
Now, this decision by itself is hardly groundbreaking. It is an unpublished decision by one District Court, and so is not binding precedent in any other case. The court discussed Maremont's potential "fame" in this opinion only with respect to the False Endorsement claim, rather than specifically in connection with the Right of Publicity claim--although the analysis applies to both issues.
But this case is interesting because it suggests that having a following on Facebook and Twitter could be enough to qualify someone as a "celebrity" whose likeness has commercial value. (Perhaps, then, there's hope for me yet.) There have certainly been similar decisions in other jurisdictions. For example, one 2008 case refused to dismiss false endorsement and right of publicity claims brought by a cancer-surviving teen and his mother who had become outspoken advocates of alternative medicine. They sued a medical clinic for using their testimonial in the clinic's fundraising materials. The court held that the family "may be able to demonstrate a notoriety among cancer patients or advocates of alternative medicine that is strong enough to have commercial value within the identifiable group." (As a side note, though, those plaintiffs ultimately lost after it turned out that they had signed consent forms for their testimonials to be used.) The Maremont decision, however, is the first one I'm aware of that extends that concept into social media. According to Judge St. Eve, "construing the facts and all reasonable inferences in Maremont's favor, she alleges that she was engaged in the commercial marketing of her skills when Defendants wrongfully used her name and likeness by authoring Tweets and Posts under her name. As such, Maremont alleges a commercial injury based on Defendants' deceptive use of her name and likeliness."
On a practical level, the takeaway for employers and employees alike is clear: make it clear who owns what. Implement a social media policy that addresses these questions. Do what such companies as Comcast and Walmart do, and publish lists of those people who are authorized to speak for the company online (and, by implication, who isn't). Make sure employees understand what's permissible to say about their work, and what online activity falls within the scope of employment. As more and more of our social interactions migrate online, these issues are only going to get more complex.
