Some Facebook page owners spend a lot of time and effort getting people to “Like” their page. Posting regular content, interacting with the fan base and having a subject matter worth following are the typical ways they encourage user Likes. What happens when companies become interested in obtaining the fan base from an unofficial Facebook page created by an actual fan of their IP or business?
Florida District Judge Rules Against User Owning Facebook Likes
Stacey Mattocks started a Facebook fan page back in 2008 about BET’s television show The Game. While the network cancelled the show after it’s first year, Mattocks’ page amassed more than 2-million Likes. When BET decided to revive The Game in 2010, they approached Mattocks about sharing the page, offering her part-time work for doing so. She signed a letter agreement with BET granting them administrative access to the page, and the collaboration yielded another 4 million Likes over time.
Then things got ugly.
Mattocks demanded full-time work from BET, which they refused. She then locked them out of the page to force their hand. BET responded by opening their own Facebook page. As the copyright owner of The Game, BET sent a request to Facebook to migrate the fans from Mattocks’ page to their new page and shut down her page. Facebook honored BET’s request, and then Mattocks sued BET to compensate her for the initial 2 million Likes and the additional Likes acquired by the c0llaboration.
Summary Judgement for BET
Mattocks based her lawsuit on four causes of action against BET:
- Tortious Interference
- Breach of Contract
- Breach of Good Faith and Fair Dealing
The Florida District Court in Mattocks v. Black Entertainment Television LLC, Dist. Court, SD Florida 2014, (Case No. 13-61582-CIV-COHN/SELTZER) analyzed each of these causes of action, ruling against the plaintiff for the following reasons.
Tortious Interference. Under Florida law the elements of this claim include: (1) the existence of a contract, (2) defendant’s knowledge of the contract, (3) defendant’ intentional procurement of breach, (4) absence of any justification or privilege, and (5) damages from the breach. Mattocks argued that BET had no justification or privilege to interfere with the contract she had with Facebook under it’s Statement of Rights and Responsibilities (similar to a Terms of Service). Judge Cohn disagreed finding that that BET’s requests to migrate the Facebook Likes were motivated (in part) by Mattocks revoking their access to the page and preventing them from having control over their intellectual property and not by any malicious intent, (Facebook’s compliance was based on company policies to protect brand owners).
Breach of Contract. Fundamental principles of contract law hold that a “material breach by one party excuses performance by the other party.” The letter agreement between Mattocks and BET contained two mutual promises: (1) Mattocks granted BET full access to the page and the right to update it, and (2) BET agreed not to exclude Mattocks from the page. Judge Cohn found that Mattocks’ removal of BET’s administrative access to the page materially breached the contract prior to any action by BET.
Breach of Good Faith and Fair Dealing. Mattocks argued that BET should have allowed her an opportunity to cure her breach of the letter agreement prior to asking Facebook to migrate the Likes to their official page. An express term of the contract must have been breached by the defendant to maintain this allegation under Florida law (see Ins. Concepts & Design, 785 So. 2d at 1234). Judge Cohn found that BET was excused from any obligations under the letter agreement once Mattocks materially breached it by revoking administrative access to the page. Also, the parties did not bargain for any notice of breach and cure provision, and the absence of such language further excused BET from extending these rights to Mattocks.
Conversion. Finally, Mattocks argued the millions of Likes that BET diverted from her page deprived her of business opportunities from other companies willing to pay her for redirecting visitors to their sites from the page. To maintain her conversion claim, Mattocks needed to show that BET’s unauthorized act deprived her of rightful ownership to her property permanently or for an indefinite time. Judge Cohn ruled that a page owner cannot claim rightful ownership of a Facebook Like, because individual Facebook users click the Like button to express their approval of a page, and they are free to give or retract it any time. Of particular note, Judge Cohn went on to say that if anyone owns a Facebook Like it is the user – not the page owner. Regardless, he ruled that even if Mattocks could demonstrate an ownership interest in Likes, her breach of the letter agreement justified BET’s actions.
So Who Owns Facebook Likes?
Mattocks shot herself in the foot by trying to strong arm BET and jumping the gun on revoking their access – it gave Judge Cohn an easy leg to stand on as seen in his concluding remarks regarding the conversion claim. Subsequently, we got the rumblings of what may turn out to be an interesting debate of the ownership of Facebook Likes only to be left unsatisfied by concluding that Mattocks’ breach of the letter agreement trumped other considerations
What if things had been different?
If Mattocks had gone to an attorney prior to taking any action against BET, could she have claimed rightful ownership of at least the 2 million Likes she generated prior to the agreement? Would Mattocks’ efforts to amass Likes be given more weight than the underlying subject matter, namely BET’s intellectual property? What if Mattocks had paid a 3rd party company to help her generate Likes?
We are left with questions like these, and perhaps another case will raise. For now, it seems that we have to be satisfied with the take away – don’t breach your contract if you want to make a case for ownership of Facebook Likes.