Doppelgangers Need Tweets Too

So I just heard this interesting little factoid. Apparently there's been an issue lately with imposter tweets in the blogosphere.1

I find this topic interesting on two fronts. There's the subject of personal accounts, like Mr. La Russa,2 Mr. Schuller,3 and even the notable Sarah Palin.4 Then you have to look at the likes of corporations, several of which have come under attack from alleged "insiders" tweeting about the goings on in the company.5

The first set of tweets goes to a right of publicity issue. Does a person have the right to control the public perception and economic exploitation of their person? Sure they do. If they are a celebrity. The common law right of publicity extends to allow a person to exploit their persona.6 Unlike a trademark issue, there's no need to address a likelihood of confusion either, it's a broader right of protection.7 So the question remains, what consitutes 'celebrity'? Well, the answer is there is not really an answer. The best answer is it depends on what you're worth, but even McCarthy is hesitant to draw lines and would extend it a right to anyone.8

The second set goes to an issue we haven't addressed much of late in this blog, trademarks. Trademarks are source designators.9 They tell you where something came from so you, the customer or client can be assured of the quality or you at least know what you are getting. Clearly if you are reading the tweets from someone who you THINK works for ABC-BIG COMPANY, but really isn't, there may be a problem, particularly if the impostor is telling you that ABC puts rubber cement in the bologna you're making your sandwich from.

Ultimately both issues goes to the idea that a person or entity needs to be able to have control over their rights. The big question here, is what the pecuniary gain is from posing as someone you are not. For the cases of Mr. La Russa or Mrs. Palin, the gain is likely not pecuniary, mostly to make a bad name for the individual being impersonated. This crosses more into the area of defamation or libel (since slander is spoken), less of an issue than I'd like to dive into right now. For the companies, one could argue dilution,10 but it's a weak claim. You could most likely argue tarnishment.11 That claim would likely survive a little bit, depending on what the impersonator decided to "tweet" about your company, assuming that ABC was a famous enough company to warrant Federal Trademark Dilution Act protection.12


Overall, there will always be those that try to pose as someone else to make a little money for themselves or to make a bad name for someone else, we should all consider ourselves warned.

1: Companies Cope with Twitter Imposters WALL STREET JOURNAL, June 29, 2009, available at http://online.wsj.com/article/SB124623159206366203.html; Kylie Crull, Watch Out for Imposter Tweets, ROCKFORD REGISTER STAR, July 12, 2009, available at http://blogs.e-rockford.com/marketingsense/2009/07/12/watch-out-for-imposter-tweets/; Geoffrey Fowler, Tony La Russa Drops Suit Over Fake Twitter Account, WALL STREET JOURNAL, June 7, 2009, available at http://blogs.wsj.com/digits/2009/07/07/tony-la-russa-drops-suit-over-fake-twitter-account/; OMG! Imposter Tweets Pretending to be Prominent TV Evangelist Robert Schuller, NY DAILY NEWS, Mar. 26, 2009, available at http://www.nydailynews.com/money/2009/03/26/2009-03-26_omg_imposter_tweets_pretending_to_be_pro-3.html.
2: Fowler, supra note 1.
3: NY DAILY NEWS, supra note 1.
4: Brian Womack & Ian King, Palin's Twitter Impersonators Show Challenge of Tweet Control, Bloomberg.com, July 8, 2009, available at http://www.bloomberg.com/apps/news?pid=20601103&sid=ac4IFvs6eWDY.
5: WALL STREET JOURNAL, supra note 1.
6: Rogers v. Grimaldi, 875 F.2d 994, 1003-04 ("The common law right of publicity, where it has been recognized, grants celebrities an exclusive right to control the commercial value of their names and to prevent others from exploiting them without permission.").
7: Id. at 1004.
8: See 1 J. THOMAS MCCARTHY, THE RIGHTS OF PUBLICITY AND PRIVACY § 4:1 (2009).
9: 4 J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 3:4 (4th ed. 2008).
10: Id. at § 24:67.
11: See 15 U.S.C. § 1125 (2005).
12: 15 U.S.C. § 1125(c)(2)(A).

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