Facebook is in the news again – this time for allegedly “hiding” the voting tools in connection with its much-hyped “public vote” on privacy changes. Apparently, .00038 percent of total Facebook users voted, of the total 270 million accounts. A privacy activist group, Europe v. Facebook, accused Facebook of hiding the polling station and making it difficult for users to vote.
“Zuckerberg seems to have taken democracy lessons in China,” the group’s speaker Max Schrem said.
Facebook users have been commenting on the Facebook Site Governance page claiming that they had no idea that the vote was going on. Perhaps the problem is not that Facebook does not care about user privacy, but rather, that it may have bigger legal woes brewing, given the recent governmental investigations into the Facebook IPO.
Facebook Users Beware: Court Rules That Employees Fired for Facebook “Likes” Are Not Protected by First Amendment
A federal court judge presiding over a Virginia lawsuit has ruled that “Liking” a Facebook page is not speech protected by the First Amendment. The Court rejected claims made by public employees who were fired for apparently “Liking” a political candidate, ruling that they have no valid retaliation/wrongful termination claims on First Amendment grounds and dismissing their claims. Continue reading →
There is a new version of Facebook’s Terms of Service. Like a governmental agency, they are using a “open comment period,” to allow users to comment on the proposed changes. Comments are due by April 27, 2012.
Tupac Rising: Who Owns the Intellectual Property Rights to a Dead Musician’s Ghost and Hologram Performance?
The hologram performance of deceased 90s rapper Tupac Shakur at the Coachella music festival last weekend dropped jaws, but also raised the eyebrows of many in the industry, spurring a hot debate about the moral, legal, and intellectual property issues involved with bringing a dead musician back to life for a “digital” performance. In the few days that have passed since then, sparks of discussion have arisen over the possibility of bringing back to stage some the nation’s most famous long-departed musicians – Elvis, Jimi Hendrix, Freddie Mercury, John Lennon, Jerry Garcia, Joey Ramone, and many others.
Shakur’s hologram performance was commissioned by his former colleague Andre (Dr. Dre) Young, from digital producer Digital Domain Media Group (made famous through its work on the virtual version of Brad Pitt in “The Curious Case of Benjamin Button”) and San Diego-based AV Concepts. It was the first-ever live performance of a deceased entertainer.
According to reports, the hologram was stunningly realistic, down to the details of Shakur’s movements, skin-art, boots, clothing, and other details. In fact, the performance created such a buzz that it has been announced the hologram of Virtual Tupac will now be going on tour.
The most dazzling element of Shakur’s post-mortem performance was that it was not borrowed from footage of Shakur filmed during his life, but rather, entirely fabricated and produced specifically for the Coachella music festival. Virtual Tupac performed in front of the audience, addressed them, danced, and pranced around like a living ghost, interacting with the crowd as well as other entertainers. At the beginning of the performance, Virtual Tupac yelled, “What the f— is up Coachella?” even though Coachella was not even founded until 3 years after his death. In the wake of the performance, some commentators expressed uneasiness that words and actions never said or taken by Shakur could be scripted by others and put into the deceased entertainer’s mouth.
Legally, the digital resurrection of a deceased entertainer brings up a plethora of thorny issues, including the appropriation of the entertainer’s publicity, intellectual property rights to the digital software/video that created the performance, rights to the performance itself, and rights to other works depicting the performance, including footage, video clips, sound clips, and other forms of social media – in addition to the huge issue over royalties and who is entitled to them. In this case, it appears that Afeni Shakur, Shakur’s mother and the legal representative for Shakur’s estate approved (and was in fact “thrilled with“) the performance of her dead son, so concerns about the unauthorized uses of Shakur’s image and likeness may be moot. It is unclear who the copyrightholder of the Shakur performance is. Now-defunct Death Row Records, one of Shakur’s former record companies, is already complaining that Shakur’s performance was not sufficiently attributed to Death Row.
But the digital performance also raises significant issues for living entertainers. When Shakur passed away in 1996, the digital revolution had just begun. There would have been no way for Shakur to have known that 15 years later, in 2012, his “ghost” would be brought back to life for a live digital performance. Frequently, entertainers, who already have very little leverage when negotiating with big record companies, are asked to sign broad assignment of their rights. The broad release of rights allows record companies and their representatives to use, re-use, and manipulate nearly every conceivable likeness, depiction, and work of the artist, in all venues and channels, irrevocably, in perpetuity, and exclusively. Many artists and entertainers are often unaware of how much of their rights they assign over to record companies when they sign a deal.
Should artists and talent be made aware that the release of their rights could extend to new mediums of expression that do not exist today, but could be made possible through advances in technology? Certainly, it’s very possible that artists would find the new forms of expression unsavory. For example, would a 55-year old Justin Bieber be comfortable with a 15-year old digital hologram of himself waking young schoolgirls from sleep each morning and kissing them goodnight?
Then there is the most important issue – the integrity of the deceased artist himself. Not all deceased musicians end up with responsible representatives managing their affairs in the afterlife. If it becomes profitable for the legal representative of a deceased entertainer to approve new projects involving the entertainer, there could be virtual performances and other activities attributed to the entertainer that the enterainer may never have agreed to in his or her lifetime. Imagine Johnny Cash promoting a commercial for Starbucks. Who should be charged with maintaining the integrity of a deceased entertainer’s unspoken wishes? Unfortunately, because technological growth so exceedingly outpaces legal rules, there are no easy answers to these questions.
While it is true that individuals can leave instructions in their wills and other estate planning documents, the representatives entrusted with carrying out those wishes are sued all the time for failing to uphold them. But unless someone takes that legal representative to court for failing to honor the deceased’s wishes, there is no one to stop them for doing something the deceased would not have agreed to.
Further, although the law provides for the protection of unborn voices by permitting for the appointment of guardians who must act in the best interests of unborn children, the dead are sadly left on their own. Unfortunately, performing in front of a packed crowed at Coachella does not sound like resting in peace.
Who does a twitter account actually belong to, employee or employer? In a lawsuit brought by Phone Dog against its former employee, Noah Kravitz, Phone Dog is arguing to a California federal court that Noah’s twitter following belongs to Phone Dog. Phone Dog has valued the 17,000 on Noah’s twitter list at $42,500 ($2.50 per twitter “follower”), and has sued Noah for theft, interfering with its business relationships, and misappropriating its trade secrets.
The Phone Dog case is interesting because it does not involve a trademarked or copyrighted slogan, mark, or logo of the employer, Phone Dog. According to court documents, Noah worked for Phone Dog as a video blogger and reviewer of products. Apparently, as part of Noah’s work for Phone Dog, Noah collected more than 17,000 twitter followers. When Noah resigned his position in October of 2010, he changed his twitter handle from @PhoneDog_Noah to @noahkravitz. There is a disagreement between Noah and Phone Dog about whether Phone Dog ever asked Noah to give up his twitter account entirely. Phone Dog’s lawsuit was filed because Phone Dog believed that Noah was using his twitter account (with its 17,000 followers) to continue marketing and advertising on his own, to some of the outlets he had marketed and advertised to during his employment with Phone Dog, such as Fox News Live and CNBC’s Street Signs. There were no contracts or agreements between Noah and Phone Dog restricting him from using his twitter account post-departure.
The Phone Dog case is a good example of why it is a good idea for employers and employees to have clear expectations (and agreements) about the ownership of social media accounts, and whether collecting “friends” or “followers” is being done for the benefit of the company pursuant to job descriptions or expectations, or whether it is an independent venture of the individual employee, separate and distinct from his or her job duties. In this case, there seems to be fair arguments on both sides.
For Personal or Business Use? It is unclear whether Noah was pursuing twitter followers (arguably, we may never know whether followers sought to follow Noah the individual or “Noah the Phone Dog employee”) independently or as part of the practice as one of Phone Dog’s product reviewers and bloggers. Certainly, having a wide audience following was both favorable for Noah as well as Phone Dog.
Substantive Content. It is also unclear whether Noah’s tweets were in large part employment-related, in terms of content, or whether they conveyed personal messages. In taking a quick peek at the most recent ones, it appears that Noah tweets, and tweets often, about a variety of topics, not just those about his employment or Phone Dog:
What is the Proper Analogy? Another looming question that could be answered, if the Phone Dog case is assessed on its merits, is whether social media friends or followers are more akin to a company’s “customer lists,” which might be protected as a trade secret, or whether they are more similar to simply a list of contacts. After all, individuals who leave their employment to not “unlearn” their acquaintences, and barring non-solicitation or non-compete provisions in an employment agreement, are free to contact their list of contacts.
Public Relations Elements. For Phone Dog, an unintended consequence of the lawsuit may end up being bad publicity. Regardless of how meritorious their claims may be, to the public, it may simply appear to be a powerful employer flexing its muscles and intimidating a former employee, whether it is to set an example, or truly recover the Twitter “followers.” This would not be the first time a lawsuit in the technomedia space has generated more (negative) publicity than may have been desired.
For now, Noah’s legal team is attempting to have the case dismissed for failure to state a claim for relief. A hearing has been scheduled for the end of the month, so there may be new developments coming in the near future as this case marches forward.
There is a new decision on the issue of whether litigants are permitted to obtain facebook account information during discovery. New York Judge George Silver of the Manhattan State Supreme Court, presiding over a car-acciddent / brain-trauma personal injury case, ruled that the defense was not permitted to obtain current and historical MySpace, Facebook, and Twitter account information from the plaintiff Katherine Sterling. The Court called the discovery requests an unjustified “fishing expedition” (although the Court did allow the defense to obtain the plaintiff’s cell phone records).
What is interesting about the case is that the ruling came after an in camera submission to the court of the plaintiffs’ Facebook page — apparently the Court assessed the nature of the first few pages of the Plaintiff’s Facebook page and determined that there was nothing worthwhile on the site that satisfied the relevance/”calculated toward the discovery of admissible evidence” test.
The Sterling case presents some unique issues. As any attorney probably knows, the value of receiving a multitude of records similar to the kind that resides on Facebook, MySpace, or Twitter, can be huge. Often, there is no “smoking gun,” but when the activities on chronological or timeline-based records are compared to other records, inconsistencies could be uncovered that may ultimately prove to be very valuable to the defense. The problem is that a single gold nugget of information could be buried deep within many pages of records. If the Sterling Court only looked at the first few pages of records (there is no telling from the Court’s Order how recent, frequent, or abundant the Facebook entries were), there is every likelihood that the page could have been littered with social postings, events, family musings, and other information completely irrelevant to the kind of discovery pertinent to a lawsuit. Records are not valueless or undiscoverable simply because they are abundant, or even mostly uninteresting.
Further, there is the potential for litigants to take advantage of “in camera” inspections of Facebook pages, especially once requested by the defense. A party who has received a request for production of such information can often collect a plethora of comments, posts, likes, and other activity, which can drown out legitimately useful facts, simply by being more “active” than usual on social networking sites — especially in the 30-90+ days it often takes for discovery disputes to escalate past a meet/confer, briefing, and hearing. By then, useful posts could be long gone or pushed back to page 10.
There is no doubt that Facebook info can be very valuable. Who can forget the case of Kevin Colvin, the celebrated intern at Anglo Irish Bank, North America, who told his manager he had to miss work for a “family emergency” … which turned out to be a “fairy” emergency:
From Kevin’s Facebook Page:
What Kevin was doing with the can of Miniwax hardwood stain in the background, no one may ever know.
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