Recently a Florida District Court Judge held that neither an employee, nor her former employer, owned the Facebook “likes” that had been drawn to an unofficial (later turned official) Facebook fan page. Mattocks v. Black Entertainment Television, 2014 WL 4101594 (S.D. Fl. Aug. 20, 2014). The former employee, Stacey Mattocks, started a Facebook fan page for The Game, a comedy-drama on BET that ran in 2008. While The Game ceased airing shortly after its inception, the Facebook page lived on and in 2010, when BET decided to revive The Game, it reached out to Ms. Mattocks, and offered her a part-time position maintaining the Facebook page as the show’s official fan page. This offer would make sense, considering the page already had approximately 2 million “likes” that Ms. Mattocks had garnered herself.
Ms. Mattocks and BET signed a sparse one-page agreement in which the parties agreed BET had administrative access to the page as did Mattocks and neither would lock the other party out. Quickly, BET employees and Ms. Mattocks amassed an additional $4 million likes. This increase provided Ms. Mattocks with what she perceived to be leverage as she attempted to negotiate a full-time position with BET. In attempting to obtain full-time employment she revoked BET’s administrative access to the page stating that she would only give access back if they agreed to pay her demanded salary. BET refused and started its own page while simultaneously asking Facebook to shut down Ms. Mattock’s page—which it alleged contained copyrighted material—and also asked that all “likes” be transferred to BET’s new fan page. Facebook transferred the “likes”, shut down Ms. Mattock’s page, and Ms. Mattocks sued alleging conversion (theft), among other things.
The Florida judge, James Cohn, was able to reach the question that was never decided in the California PhoneDog Media case (discussed here and here): Who owns Facebook “likes” and Twitter “followers”? Judge Cohn wrote: “‘Liking’ a Facebook Page simply means that the user is expressing his or her enjoyment or approval of the content. At any time, moreover, the user is free to revoke the ‘like’ by clicking an ‘unlike’ button.” He further noted, “[I]f anyone can be deemed to own the ‘likes’ on a Page, it is the individual user responsible for them,” not the Page’s owner. “Given the tenuous relationship between the ‘likes’ on a Facebook Page and the creator of the page, the ‘likes’ cannot be converted in the same manner as goodwill or other intangible business interests.”
The opinion, however, does not discuss the value of a “like” or the fact that some companies are currently buying likes, or the market for “likes” in general. Yes that’s right, there is a market in which companies can buy Facebook “Likes”, Twitter “Followers”, and Instagram “Followers.” Companies can shell out approximately $500.00 to garner 10,000 domestic Facebook “Likes”.
As we have previously discussed it is important to set up social media policies that appropriately deal with the ownership issues that surround the use of social media. As shown in this case, common law theories will not hold water when individuals (or companies) attempt to assert ownership rights.