The licensing agency CMG Worldwide has sued Twitter for allowing a user to tweet under the name of deceased actor James Dean.
CMG alleges that Twitter -- as well as the account creator --
are infringing trademark in the name James Dean. The licensing company, which manages accounts of Dean, Marilyn Monroe, Babe Ruth and other celebrities, also argues that the account violates Dean's
so-called “right of publicity,” or right to control the commercial use of his name.
The Twitter stream “has resulted in and continues to result in immeasurable and
irreparable damage,” CMG alleges in its complaint, which was filed late last year in state court in Indiana. On Friday, the case was transferred to federal court for the Southern District of
CMG says in its legal papers that it unsuccessfully asked Twitter to take down the account.
In July, the microblogging platform allegedly said in an email to CMG that
the @JamesDean account doesn't violate Twitter's terms of service because the account is not “being used in a way that is misleading or confusing with regard to its brand, location or business
Currently, the @JamesDean account has more than 8,000 followers. The 2,000-plus tweets posted to the account since 2009 consist largely of commentary about the actor.
“James Dean had the guts to live the way he chose when most people took the conventional road. He blazed a path for the counter-culture,” reads one tweet dated March 12, 2013.
Legal experts say the tweets probably are protected by free-speech principles, given that the account doesn't appear to have a commercial purpose. “These tweets are like fan tweets,”
says advertising lawyer Rick Kurnit, a partner in Frankfurt Kurnit Klein & Selz. “There's nothing commercial here, as opposed to biographical. There's a good argument that this is a
twitter-biography, and not a commercial use.”
Kurnit adds that people have a free-speech right to author histories or biographies of celebrities. “They're claiming that they
have a trademark,” Kurnit says of CMG. “But the fact that they have a trademark does not make for complete and utter ownership for any and all purposes.”
Balasubramani, a Seattle-based expert in Internet law, agrees that CMG is likely to face an uphill battle in claims relating to trademark infringement and publicity rights. “Ultimately, I think
it should be possible for, say, a fan to claim the Twitter name James Dean, as long as that person doesn't have a commercial purpose,” he says. But he adds that the account creator would have
been well advised to clearly state that he had no connection to the actor or his estate.