Fake MySpace Profiles
January 30, 2006 8:50 AM
Are fake MySpace profiles illegal?
A couple of local celebrities suddenly surfaced on MySpace, and it was confirmed that they didn't build the profiles themselves. They are in no way defamatory, or providing false information.
While it's not ethical, is it actually illegal?
A couple of local celebrities suddenly surfaced on MySpace, and it was confirmed that they didn't build the profiles themselves. They are in no way defamatory, or providing false information.
While it's not ethical, is it actually illegal?
I don't know about legality, but the Terms of Service are pretty clear:
posted by Rothko at 8:57 AM on January 30, 2006
By using the Website and the Service, you represent and warrant that all registration information you submit is truthful and accurate and that you agree to maintain the accuracy of such information... You are solely responsible for all Content published or displayed through your account, including any email messages, and for your interactions with other members. (emph. mine)MySpace can delete your account for any reason. Further, if you commit soemthing to the site that is libelous or defamatory, MySpace is within its rights to pass liability damages on you.
posted by Rothko at 8:57 AM on January 30, 2006
I don't know MySpace at all, but if one can access it from New York State (which one can) and there are photographs, it may well be a violation of New York Civil Rights Law Secs. 50-51 which prohibit, among other things, the use of any person's likeness "for advertising purposes or for the purposes of trade without the written consent". This has been read fairly broadly but also includes exceptions for "newsworthy" content.
posted by The Bellman at 9:07 AM on January 30, 2006
posted by The Bellman at 9:07 AM on January 30, 2006
What is the purpose of these profiles? Is it parody... to make fun of them?
They are in no way defamatory, or providing false information.
Then they are fine.
posted by dios at 9:33 AM on January 30, 2006
They are in no way defamatory, or providing false information.
Then they are fine.
posted by dios at 9:33 AM on January 30, 2006
The profiles are convincing in that they look 'real', but provide no real 'personal opinions', just general information that could be gleaned from thier employer's website.
posted by chrisfromthelc at 9:44 AM on January 30, 2006
posted by chrisfromthelc at 9:44 AM on January 30, 2006
Well, porn star Asia Carrera (scroll down to the August updates) got pretty bent out of shape when there was a fake page about her up there. (Supposedly MySpace actually put it up themselves to generate traffic, but who knows.) They caved after she sic'ed her fans on them.
posted by Gator at 9:46 AM on January 30, 2006
posted by Gator at 9:46 AM on January 30, 2006
Dios is wrong. They are not "fine" -- see my previous post. The unauthorized use of a person's likeness to suggest that the person approves of or endorses a given product or service is actionable, by statute in New York and in several other states and by common law in numerous others.
posted by The Bellman at 11:30 AM on January 30, 2006
posted by The Bellman at 11:30 AM on January 30, 2006
Well, Bellman, as you said you cited to New York law. So, your analysis doesn't apply anywhere other than New York law. Furthermore, it applies on in the limited instance of appropriation: use of a person's likeness for the purpose of marketing or making money. It is an intellectual property concept that exists in situations such as Photoshopping Shania Twain into my ad to make it look like she endorses it. I see nothing in the question that in any way brings up the concept you are alluding to.
Insofar as there is no indication from the post that this was done with commerical intent, (for that matter, nor is there any indication that this person is referring to NY) your citation to that NY statute doesn't answer the person's question. So respectfully, your analysis that "I am wrong" is premature and needlessly confrontational.
Assuming this isn't done for commerical use, there is no intellectual property issue at stake (and Bellman's analysis is worthless). It is said in the question that it isn't done in a defamatory manner, so defamation isn't an issue. I asked if it was done in a parody manner of a public person or for public comment on a public person, in which case the only privacy interest that could be asserted is not implicated. Alternatively, if it is done for purely informational purposes, it is fine as well (it wouldn't be different than a wikipedia then).
Quite simply, the question can't be fully answered until you tell us what is on the page and what the purpose of it is. Then we can answer your question. But Bellman's citation to a NY law only answers the question if it is NY and if it used for commercial purpose.
Any further response Bellman?
posted by dios at 1:06 PM on January 30, 2006
Insofar as there is no indication from the post that this was done with commerical intent, (for that matter, nor is there any indication that this person is referring to NY) your citation to that NY statute doesn't answer the person's question. So respectfully, your analysis that "I am wrong" is premature and needlessly confrontational.
Assuming this isn't done for commerical use, there is no intellectual property issue at stake (and Bellman's analysis is worthless). It is said in the question that it isn't done in a defamatory manner, so defamation isn't an issue. I asked if it was done in a parody manner of a public person or for public comment on a public person, in which case the only privacy interest that could be asserted is not implicated. Alternatively, if it is done for purely informational purposes, it is fine as well (it wouldn't be different than a wikipedia then).
Quite simply, the question can't be fully answered until you tell us what is on the page and what the purpose of it is. Then we can answer your question. But Bellman's citation to a NY law only answers the question if it is NY and if it used for commercial purpose.
Any further response Bellman?
posted by dios at 1:06 PM on January 30, 2006
Within the culture of MySpace, it's pretty much accepted that celebrity profiles are, by and large, basically fan clubs. A means of associating yourself with your favorite quarterback or maxim model or whatever. It's completely harmless and for the most part, a celebrity who whined about it would be doing themselves a disservice.
posted by glenwood at 1:20 PM on January 30, 2006
posted by glenwood at 1:20 PM on January 30, 2006
They are in no way defamatory, or providing false information.
If you don't know the law, you're probably not in a good position to decide what's defamatory.
While it is very unlikely that you would get sued (since that would be bad press for both the celeb and for MySpace/NewsCorp) MySpace/NewsCorp might take down your page on a mere cease-and-desist from the celeb's legal representation, regardless of its content.
Further, the site's corporate owner is within its rights to delete a page at any time for any reason it sees fit, according to its Terms of Service.
If you put any serious effort into maintaining fan sites, and you want recourse from image-conscious celebs, you're better off getting your own inexpensive hosting service, which would carry more clearly defined service and hosting guidelines and obligations on both parties.
posted by Rothko at 1:36 PM on January 30, 2006
If you don't know the law, you're probably not in a good position to decide what's defamatory.
While it is very unlikely that you would get sued (since that would be bad press for both the celeb and for MySpace/NewsCorp) MySpace/NewsCorp might take down your page on a mere cease-and-desist from the celeb's legal representation, regardless of its content.
Further, the site's corporate owner is within its rights to delete a page at any time for any reason it sees fit, according to its Terms of Service.
If you put any serious effort into maintaining fan sites, and you want recourse from image-conscious celebs, you're better off getting your own inexpensive hosting service, which would carry more clearly defined service and hosting guidelines and obligations on both parties.
posted by Rothko at 1:36 PM on January 30, 2006
http://www.myspace.com/kplc
http://www.myspace.com/cynthiaarceneaux
Both of which seem to have the ever-popular "temporarily disabled" status right now. For the record, I have nothing to do with the posting of the pages, but I was alerted to them when I got friend requests from them.
posted by chrisfromthelc at 1:39 PM on January 30, 2006
http://www.myspace.com/cynthiaarceneaux
Both of which seem to have the ever-popular "temporarily disabled" status right now. For the record, I have nothing to do with the posting of the pages, but I was alerted to them when I got friend requests from them.
posted by chrisfromthelc at 1:39 PM on January 30, 2006
Rothko,
While I agree that it may be, in fact, a violation of the TOS, I am pretty aware of what may be considered defamatory, and this does not seem to be (at first glance). My interest in this is because of discussion between myself and a friend who works for the same company as these people, and I have no connection to whoever is posting it.
1. There (as of this writing) are no slanderous comments, nothing intending to damage the reputation of these persons, and is, in fact, a quite favorable representation of them.
2. While I am not completely unconvinced that it is a 'fake' profile, I know the attitude of the company well enough to know that it is highly unlikely they would spend time using MySpace.
posted by chrisfromthelc at 1:53 PM on January 30, 2006
While I agree that it may be, in fact, a violation of the TOS, I am pretty aware of what may be considered defamatory, and this does not seem to be (at first glance). My interest in this is because of discussion between myself and a friend who works for the same company as these people, and I have no connection to whoever is posting it.
1. There (as of this writing) are no slanderous comments, nothing intending to damage the reputation of these persons, and is, in fact, a quite favorable representation of them.
2. While I am not completely unconvinced that it is a 'fake' profile, I know the attitude of the company well enough to know that it is highly unlikely they would spend time using MySpace.
posted by chrisfromthelc at 1:53 PM on January 30, 2006
As I sad in the beginning, I don't know MySpace so I'm sure what glenwood said is right, but dios asked for a response and I'm to weak to stop myself from feeding the troll.
dios:Well, Bellman, as you said you cited to New York law. So, your analysis doesn't apply anywhere other than New York law.
This is ungrammatical and a little hard to understand, but if I am understanding it correctly, it's wrong. The New York Court of Appeals addressed this issue in Molina v. Phoenix Sound Inc., 297 A.D.2d 595, 747 N.Y.S.2d 227 (1st Dept. 2002). In the context of an image used on a nightclub website without permission, the Court wrote:
As to use of her image "within the state of New York," it appears that plaintiff pleads this element only insofar as she notes that her "picture and likeness" were available on a "world wide basis" on the internet. Because the pleading refers to the internet's global accessibility, rather than directly addressing accessibility within New York State, we find this to be a novel intersection of rapidly developing internet law and well-established rights of privacy.
Today, it cannot be disputed that an internet website simultaneously exhibits images both globally and locally. Therefore, while plaintiff's image on the Sound Factory website was indeed available for use "on a world wide basis," it necessarily was concurrently available within New York State. Moreover, any person with a computer and an internet connection, anywhere, has access to a website, regardless of where the site itself was created or is maintained. We therefore find that, for the purposes of a motion to dismiss, plaintiff's assertion of a website's global accessibility sufficiently meets the required statutory element of use within New York State.
Thus it doesn't matter where MySpace is located or where the MySpace user is located, for purposes of the MySpace site, New York law applies. If the celebrity lives in New York, he or she can bring suit here under New York law.
Not enough? Well as I mentioned, the same laws exist either by statute or common law in other states. For example, in California:
A common law cause of action for appropriation of name or likeness may be pleaded by alleging (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.
Eastwood v. Superior Court of Los Angeles County,149 Cal.App.3d 409, 417 (Cal. St. App. 1983)
dios: It is an intellectual property concept that exists in situations such as Photoshopping Shania Twain into my ad to make it look like she endorses it. I see nothing in the question that in any way brings up the concept you are alluding to.
Fundamentally and importantly wrong. This has nothing to do with intellectual property. That's a separate issue and it's a good question: someone presumably owns the copyright on the photo being used and hasn't consented to its use, so that's yet another violation of the law. But in this case the issue is not intellectual property but civil rights. Statues like the New York statute protecting use of one's image, name or likeness are generally grouped with the civil rights laws, and common law remedies such as the one available in California are also based on a common law right of privacy, not intellectual property.
This is an extremely important point and not mere hair-splitting. Being a lawyer as you are I'm sure you're aware that the Federal Copyright Act preempts state intellectual property rights in most cases (at least for contemporary intellectual property). Arguments have been made (including in Molina) that the Federal Copyright Laws should preempt these privacy statutes as well. Those arguments have always failed because Courts note that the rights protected are distinct: the civil right to control one's image is not the right to control one's intellectual property.
dios: Assuming this isn't done for commerical use, there is no intellectual property issue at stake (and Bellman's analysis is worthless).
As noted above, your analysis here completely misses the important distinction between privacy rights and intellectual property rights so it's . . . well worthless, I guess.
The New York statute has been very broadly read. The use of an image to drive traffic to a site has been deemed a commercial use in other contexts (though I don't think it has been considered in the Section 51 context) and the fact is that both MySpace and the person using the image could be liable here if the intent is to assert a connection between the person depicted and the site.
posted by The Bellman at 1:58 PM on January 30, 2006
dios:Well, Bellman, as you said you cited to New York law. So, your analysis doesn't apply anywhere other than New York law.
This is ungrammatical and a little hard to understand, but if I am understanding it correctly, it's wrong. The New York Court of Appeals addressed this issue in Molina v. Phoenix Sound Inc., 297 A.D.2d 595, 747 N.Y.S.2d 227 (1st Dept. 2002). In the context of an image used on a nightclub website without permission, the Court wrote:
As to use of her image "within the state of New York," it appears that plaintiff pleads this element only insofar as she notes that her "picture and likeness" were available on a "world wide basis" on the internet. Because the pleading refers to the internet's global accessibility, rather than directly addressing accessibility within New York State, we find this to be a novel intersection of rapidly developing internet law and well-established rights of privacy.
Today, it cannot be disputed that an internet website simultaneously exhibits images both globally and locally. Therefore, while plaintiff's image on the Sound Factory website was indeed available for use "on a world wide basis," it necessarily was concurrently available within New York State. Moreover, any person with a computer and an internet connection, anywhere, has access to a website, regardless of where the site itself was created or is maintained. We therefore find that, for the purposes of a motion to dismiss, plaintiff's assertion of a website's global accessibility sufficiently meets the required statutory element of use within New York State.
Thus it doesn't matter where MySpace is located or where the MySpace user is located, for purposes of the MySpace site, New York law applies. If the celebrity lives in New York, he or she can bring suit here under New York law.
Not enough? Well as I mentioned, the same laws exist either by statute or common law in other states. For example, in California:
A common law cause of action for appropriation of name or likeness may be pleaded by alleging (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.
Eastwood v. Superior Court of Los Angeles County,149 Cal.App.3d 409, 417 (Cal. St. App. 1983)
dios: It is an intellectual property concept that exists in situations such as Photoshopping Shania Twain into my ad to make it look like she endorses it. I see nothing in the question that in any way brings up the concept you are alluding to.
Fundamentally and importantly wrong. This has nothing to do with intellectual property. That's a separate issue and it's a good question: someone presumably owns the copyright on the photo being used and hasn't consented to its use, so that's yet another violation of the law. But in this case the issue is not intellectual property but civil rights. Statues like the New York statute protecting use of one's image, name or likeness are generally grouped with the civil rights laws, and common law remedies such as the one available in California are also based on a common law right of privacy, not intellectual property.
This is an extremely important point and not mere hair-splitting. Being a lawyer as you are I'm sure you're aware that the Federal Copyright Act preempts state intellectual property rights in most cases (at least for contemporary intellectual property). Arguments have been made (including in Molina) that the Federal Copyright Laws should preempt these privacy statutes as well. Those arguments have always failed because Courts note that the rights protected are distinct: the civil right to control one's image is not the right to control one's intellectual property.
dios: Assuming this isn't done for commerical use, there is no intellectual property issue at stake (and Bellman's analysis is worthless).
As noted above, your analysis here completely misses the important distinction between privacy rights and intellectual property rights so it's . . . well worthless, I guess.
The New York statute has been very broadly read. The use of an image to drive traffic to a site has been deemed a commercial use in other contexts (though I don't think it has been considered in the Section 51 context) and the fact is that both MySpace and the person using the image could be liable here if the intent is to assert a connection between the person depicted and the site.
posted by The Bellman at 1:58 PM on January 30, 2006
This thread is closed to new comments.
posted by mikeh at 8:56 AM on January 30, 2006