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No Property Interest in Facebook Likes

Think you have a property interest in the "Likes" on your Facebook Page?

A Federal judge in Florida thinks otherwise.
The decision came in a case involving Black Entertainment Television and a Florida woman who had maintained a Facebook Page for The Game, a television show about football players and their significant others.  The Game had previously aired on CW Television Network until it was cancelled in May 2009.  Despite the cancellation, the woman continued to maintain a Facebook Page for the show, which she had created in 2008.
The woman had generated 750,000 Facebook Likes by the time BET picked up the show in 2010.  Six months after that, the Page had approximately 1.3 million Likes.  This number grew to 7.7 million Likes by July 2013.
During this time, BET and the woman entered into an agreement over maintenance and control of the Facebook Page.  The pair, however, eventually had a falling out, primarily over compensation.  Facebook, upon the request from BET, transferred all of the Page’s Likes, to an official Page, which BET had set up independently of this woman’s Fan Page.  That is when the woman sued BET for, among other things, converting her Likes.
In denying this claim, the judge ruled that “‘liking’ a Facebook Page simply means that the user is expressing his or her enjoyment or approval of the content.”  He explained that, since a user is free to remove the “Like” by clicking the “Unlike” button, those users are responsible for them, not the Page creator.  Based on the “tenuous relationship between ‘likes’ on a Facebook Page and the creator of the Page,” the judge ruled that “the ‘likes’ cannot be converted in the same manner as goodwill or other intangible business interests.”
This decision creates interesting legal and valuation issues for companies with large social media followings, such as: 
1.    How to Value a Social Media Presence.  The woman had brought in experts who testified that the Page’s valuation was in the millions of dollars, due to the significant number of “Likes.”  Although the judge rejected her conversion claim, there is no doubt about the value in being able to advertise directly to millions of interested people.
2.    Protecting Your Brand.  Facebook has specific policies for the maintenance of Pages for a brand, entity, or public figure.  If you believe that someone is infringing on these rights, make sure to contact Facebook.
Another interesting legal issue, which arises with social media but was not addressed in this case, is the ownership of the separate Facebook posts.  These posts are considered intellectual property, which means that the creator of these posts has an ownership interest in them.  In next week’s ETT, we will cover how to properly account for the ownership of Facebook, Twitter, Pinterest, or other social media posts.
If you have any questions about this case or about legal issues related to social media, contact a member of our Emerging Technologies Practice Group.