It’s the first month of January 2013 and you’re driving through Malibu in the new Audi coupe your lovely wife bought you for Xmas when, out of nowhere, a truck comes barreling through the intersection right next to D’Amore’s Famous Pizza and the last thought you have is “What the . . . .”
Ten days later after the funeral your wife decides she wants to turn your Facebook page into a memorial page for all your friends to post pictures of you and tell intimate stories about what you were like when they knew you. Your parents are appalled and want your Facebook page shut down — along with all the rest of your social media accounts — so that you can rest in peace and they can move on. They fight with your wife, your Mom screaming “We already had a memorial for him!! I don’t want to keep getting updates from my dead son’s Facebook page!” and your wife retaliating “He’s my husband — I’m keeping his page up!!”
Your wife contacts Facebook to tell them she’s turning your page into the biggest memorial the world has ever seen, and your parents contact Facebook to tell them that if your page isn’t shut down in 24 hours Facebook will be facing another public relations nightmare as your Dad involves his golfing buddy — the Senator from Northern California — two Congressmen, and the most aggressive litigation shop west of the Rockies.
So who wins? Does your wife get to keep your page up? Do your parents get to take your page down? Do your teenage kids have a say? What about your cousins? Maybe Facebook will let people vote? (“30 Million FB’ers Say ‘Keep His Page Up'”). Isn’t there a law that covers this?
This should come as no surprise in an era when Facebook and Google are continually involved in scandals revolving around the unauthorized disclosure of personal information, and are in fact recidivist repeat offenders. Why should they care if the FTC slaps them with an $11 million fine in the face of corporate valuations in excess of $20 billion, especially in a market that is hungry for the next new app, the next new product rollout, the next new social sharing tweak? Our society has become so obsessed with “sharing” and “liking” that the first thing half the nation does in the morning is check Facebook on their iPhones while the coffee is brewing. We multitask by answering email at breakfast and shooting off texts in the car (at red lights only), and now that Dragon Naturally Speaking has finally worked out the bugs we can actually dictate email while commuting those 2-1/2 hours to LA. We share, we are productive, we are obsessed with the ever-changing now and the 140 character sound bite.
But what happens to all this when we die? As Lionel Barrymore famously said, “You can’t take it with you when you go.” And although he was talking about money rather than the ability to posthumously post status updates, the message — that ultimately one has to let it all go — applies equally well to one’s life in the social media sphere. The debate is eerily similar to those about living wills, or wills in general, and perhaps the answer to all this is to simply add a codicil to one’s will declaring what is to be done with one’s social media accounts in the event of your untimely demise. Just as some want monuments or an eternal flame, others prefer the finality of burial at sea or having their ashes scattered to the wind. While there is no right or wrong answer, as long as the question of who “owns” the posthumous rights to your social media accounts remains a grey area, we can anticipate a number of humiliating public battles in the future. Just wait for the next mega-celebrity death, and I guarantee you a dust up of epic proportions. If you thought the battle over the Beatles songbook was ugly when Michael Jackson died, well, think again, because you ain’t seen ugly yet.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.