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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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In <a href="http://scholar.google.com/scholar_case?case=15421500191838283086&amp;q=eagle+v+morgan&amp;hl=en&amp;as_sdt=2,5" target="_blank" rel="noreferrer noopener">Eagle v. Morgan</a> (E.D. Penn. March 12, 2013), a banking company was found liable for infringing the publicity rights of its former CEO, Dr. Eagle. &nbsp;When Eagle left her position, the company used her password to access her LinkedIn account and lock her out of it. &nbsp;They then replaced her information with that of the new CEO. &nbsp;For a period of several weeks, therefore, whenever someone searched for Eagle and followed the link to her profile, they found the information for her replacement instead.

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This decision is significant for several reasons. &nbsp;First, it underscores a trend I've <a href="http://www.wassom.com/?s=right+of+publicity" target="_blank" rel="noreferrer noopener">written</a> and <a href="http://www.wassom.com/about" target="_blank" rel="noreferrer noopener">spoken</a> about often, which is the growing significance of publicity rights in social media. &nbsp;By definition, these media function by sharing information from and about individuals. &nbsp;The body of law that governs how individuals' identities are used, therefore, cannot help but be important to activities in that media. &nbsp;We have seen several such cases so far, and will certainly see more in the near future.

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Second, this decision sheds more light on the types of evidence to which courts will look in determining whether an individual's identity has "commercial value"--which is typically a prerequisite to the existence of actionable publicity rights--in today's digital economy. &nbsp;Here, the court found that Dr. Eagle's identity "has commercial value due to her investment of time and effort in&nbsp;developing her reputation in the banking education industry. She testified that she is a published&nbsp;authority, has been quoted in others’ publications, and has presented at conferences.&nbsp;Further, ... [she] had extensive experience in the&nbsp;banking education industry and generated substantial annual sales." &nbsp;Those factors could be applied just as easily to executives and professionals in all sorts of industries (cough, even <a href="http://www.wassom.com/about" target="_blank" rel="noreferrer noopener">me</a>, cough), meaning that this is risk factor that every employer should take to heart when publishing in social media.

Third, in concluding&nbsp;that the employer's actions in commandeering Eagle's LinkedIn account were unjustified, the court repeatedly points out that the employer--although clearly concerned about its employees' social media presence--did not have a policy in place determining who owned the accounts. &nbsp;The strong implication is that, if the employer had adopted and Eagle had signed a policy making clear the employer's right to control the account, the result may well have been different. &nbsp;Obviously, we lawyers can't say it enough: employers, you need to implement a clear social media policy before issues like this arise.

Fourth and finally, Eagle's victory was a Pyrrhic one. &nbsp;Although she prevailed on multiple counts stemming from the misuse of her likeness, she was awarded a grand total of $0. &nbsp;Why? &nbsp;Because she couldn't prove that she's actually been harmed by the diversion of LinkedIn traffic. &nbsp;That wasn't for lack of trying; Eagle presented detailed reports of her sales revenue for the year in question, and analysis of it had dipped. &nbsp;But the court found her explanation connecting those figures to the employer's actions "nothing more than creative guesswork based on mere speculation." &nbsp;Similarly, the court refused to award punitive damages, because Eagle did not present evidence suggesting that her employer had acted out of a malicious intent to injure her.

Employers should take no comfort, though, in Eagle's failure to collect. &nbsp;This case will serve as learning opportunity for future plaintiffs, who may not make the same mistakes she did. &nbsp;Nor did she fall short by much; she presented copious mounts of financial information that another judge may have found more persuasive. &nbsp;Besides, many damage claims do not make it all the way to final resolution by a court; they settle instead. &nbsp;And less than a year ago, Facebook settled a class-action publicity rights lawsuit against it for <a href="http://libn.com/youngisland/2013/02/01/what-does-10-buy-these-days-publicity-rights/" target="_blank" rel="noreferrer noopener">$20 million</a>. &nbsp;Therefore, the next executive-level plaintiff to bring a publicity rights claim based on use of their likeness in social media may well put all the ingredients of their case together in a way that cooks up a major financial recovery.

This post has also been incorporated into Wassom on Social Media Law, my ever-evolving e-treatise on the law governing social media.

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Publicity Rights and LinkedIn – The Case of Eagle v. Morgan

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