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Before November 2, Alex Lee (Alex LaBeouf?) was a Texas teenager who happened to work at Target. Today, he is #alexfromtarget, a meme, and a microcelebrity with nearly 750,000 twitter followers. It is difficult to account for the precise mechanism that made Alex, or any meme, go viral. According to most reliable accounts, a Target customer (presumably a Teenage girl with a tumblr, maybe @alannapage12, maybe on October 26?) surreptitiously took a photograph of the boy she was checking out at the checkout counter. Twitter user @auscalum, a UK teenager, found the image, tweeted it with the caption, “YOOOOOOOOOOO.”
Initially, Alex seemed to welcome the attention—he tweeted out a tentative “am I famous now?” [YES, confirmed the 42,000 retweets and 87,000 favorites] and appeared on Ellen. Though he has been offered various advertising deals and sponsorships, as well as additional appearances on daytime talk shows like Good Morning America, he has not directly capitalized on his rising profile.
Other have tried. Breakr, a marketing firm/tech startup based in LA, took credit on November 3, the day after #alexfromtarget’s metoric rise. In a post on LinkedIn, which has now been viewed more than 45,000 times, Breakr CEO Dil-Domine Jacobe Leonares claimed that his company manufactured Alex’s fame as a “social media experiment” testing the power of “the fangirl demographic.” Breakr claimed that after @auscalum, a Breakr’s “fangirl,” tweeted the photograph, Breakr relied on its base of “fangirl followers” and “YouTube influencers” to spread the hashtag, then used parody videos (monitored through GoogleHangout) to keep “fanning the social media flame.”
These claims have been largely discredited. Both Alex and @auscalum denied any relationship with or knowledge of Breakr; Breakr, for its part, later clarified that neither Abbie (@auscalum) nor Alex (from Target) was ever employed by Breakr.
Setting aside the peculiarities of Internet fame; fake twitter accounts; trending rumors; and potential pitfalls of relying on social media machines and tongue-in-cheek, click-baity blogs, or Old Media to report on a trend with millions of micro-authors, let’s get to the question at bar: can Alex sue?
Depending on how Alex’s fame develops, and, who, aside from Breakr tries to capitalize on his fame, I think the answer is yes, actually, under Texas’s common law right of publicity. This right protects an individual’s interest in the “exclusive use of his own identity, in so far is it is represented by his name or likeness, and in so far as the use may be of benefit him or to others [commercially!].” Texas (and Fifth Circuit) courts applying the right of publicity use the same test they would in a misappropriation of identity (Restatement (Second) of Torts §652C (1977)) claim. Henley v. Dillard Dep’t Stores, 46 F.Supp.2d 587, 597 (N.D.Tex.1999); see also Brown v. Ames, 201 F.3d 654, 658 (5th Cir. 2000) (affirming the use of this test).
1. Did the defendant appropriate the plaintiff’s name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose?
Against Breakr: maybe? Breakr certainly recognized the economic value associated with #alexfromtarget, and, though the company’s claim to have been the hype generator fed the blogs for another news cycle, I don’t think many courts would be sympathetic to the argument that their claim to have manufactured Alex’s celebrity was “incidental.” Did they appropriate Alex’s name or likeness, though? This would be a much clearer case if Breakr had claimed to represent Alex or accepted endorsements on his behalf. Still, I think Alex would have an argument that, by laying claim to the hashtag #alexfromtarget, Breakr attempted to appropriate a commercially significant portion—the only commercially significant portion?—of Alex’s online identity. (Evidence that Alex recognizes the value of being “the real Alex from Target”: it’s in his twitter info).
2. Can the plaintiff be identified from the publication?
Yes! Breakr’s LinkedIn post contains the definitive image of Alex from Target, and identifies him with the hashtag it claims.
3. Was there an advantage or benefit to defendant?
Yep! Caselaw– Henley, 46 F. Supp. 2d at 596—on this prong says to look at section 652C comment d of the restatement: “It is only when the publicity is given for the purpose of appropriating to the defendant’s benefit the commercial or other values associated with the name or likeness that the right of privacy is invaded.” Again, assuming Breakr is not actually the mastermind behind this viral meme, the possibility that they might have been, and the press around the issue, has certainly raised the company’s profile.
To win on this point, Alex would not have to prove that Breakr received a commercial benefit (aka turned a profit) on its use of Alex’s identity; instead, he would only have to prove that it received a commercial advantage from the use of his identity that it would not have received without it.
I’ve played fast and loose with legal standard that, if tested, might force Texas courts to address issues that would build jurisprudence in the meme sector. Would the court accept a hashtag, created by a nonparty, as form of “identity, represented by name or likeness”? Is Alex famous enough to assert a right intended to protect the value of a celebrity’s endorsement? If he prevailed, how would the court calculate damages?
Consent is a common defense to a right of publicity claim, but which consent, if any, is relevant here? Would it matter whether Alex consented to the initial photograph? Is remaining on Twitter on November 3 a form of consent, an embrace of his identity as #alexfromtarget? If Alex prevailed in this imaginary suit against Breakr, would he have a cause of action against everyone who could capitalize, derivatively, on his identity? Against @auscalum (I would imagine not) for her surge in twitter followers?What about Target itself? And more broadly: will the people who make photos go viral–in Breakr’s lingo, the “fangirls”–ever see compensation for their contribution to celebrity commerce, a la Reddit micropayments?
For now, Alex is promoting charity events on twitter, and, to avoid some of the crowds, he’s traded in the Target checkout counter for the stockroom. Before his fifteen minutes of fangirl fame elapse, he, and we, too, might want to take stock of the laws that protect microcelebrities in their commercial viable—and therefore eminently exploitable—viral fame.
— Lauren C. Ostberg
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