Who Owns a Twitter Handle?

120px-James_Dean_in_East_of_Eden_trailer_2There is a right of publicity/trademark case in Indiana that I want to bring to your attention.  James Dean’s estate is suing Twitter for letting third-parties use handles with various permutations of “James Dean” that tweet about the actor. In effect, the complaint is arguing that Twitter’s “first-come, first-serve” policy with respect to handles violates the estate’s right of publicity and trademark.  None of the handles are selling merchandise–they all appear to be vehicles for fans who just want to talk about James Dean.

This case poses a problem that is analogous to what happened with domain names prior to the enactment of the Anti Cybersquatting Act (ACPA) in 1999.  The people who own the handles can presumably say that they are not engaged in commerce with respect to James Dean.  If that is true, then there is no trademark or right of publicity infringement.  On the other hand, Twitter is presumably selling ads that can be found if you pull up the James Dean pages, so they are engaged in commercial activity.  Does that mean, though, that they must reserve the handle for the celebrity estate?  If so, for how long?  Twitter accounts using James Dean have been around for a couple of years–does that mean that the estate has waived its rights?

There’s a lot more that could be said about this, but I would like to look more carefully at the complaint.

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