Paul Watler's Perspective

In The Social Network, former colleagues and associates of Mark Zuckerberg take turns in the movie’s deposition chair, claiming that the Internet boy genius swiped the idea for Facebook or abused their trust in its start-up. Both real-life characters and Hollywood hardly have anything nice to say about Zuckerberg.

While lawsuits proliferate over the origins of Facebook, one question lingers: Why hasn’t Zuckerberg himself filed suit in court over the movie? Doesn’t he have legal recourse over the cinematic theft of his life story? Does the arguably inaccurate silver-screen story line give him a suit for damages to his reputation?

The now familiar Winkelvoss twins figure prominently in the movie, as does Zuckerberg’s former roommate and initial financial backer, Eduardo Saverin. And – as if to presage The Social Network 2 – a new stolen-at-birth litigant has recently emerged. Paul Ceglia, who the New York Times describes as a wood-pellet salesman from upstate New York with a checkered past, including drug charges in Texas, claims in a federal lawsuit that a contract with Zuckerberg makes him a majority owner of the multi-billion dollar web company.

The central assertion of the Winkelvoss twins in the movie was that Zuckerberg stole their idea. Indeed, the law provides a cause of action for idea theft when an original proposal is shared in circumstances creating an implied contract or a confidential relationship between the parties. Although Zuckerberg has had to defend that charge from the Winkelvoss twins, he likely has no such claim against the movie producers. The source of the movie story was not a pitch by the Facebook mogul in the context of an expected contractual or fiduciary relationship. Plus, theft of idea claims generally do not succeed in situations involving true-life stories, even fictionalized accounts of “real” events.

A plaintiff’s lawyer looking at this scenario may consider a claim for misappropriation, sometimes termed the “right to publicity.” The elements of the tort include the appropriation of the plaintiff’s name or likeness for its intrinsic value to the commercial benefit of the defendant. However, some courts hold that the protection against misappropriation of name or likeness does not extend to a person’s life story. For instance, the Fifth Circuit opined that the “term ‘likeness’ does not include general incidents from a person’s life, especially when fictionalized. The facts of an individual’s life possess no intrinsic value that will deteriorate with repeated use.” Of course, these words were written long before any federal judge would have screened The Social Network.

If indeed Zuckerberg’s reputation has “deteriorated” with repeated viewing of the Hollywood blockbuster, can he sue for false light invasion of privacy or defamation? Texas, like a number of states, does not recognize false light claims, finding them unnecessarily redundant of a defamation action and not sufficiently deferential to First Amendment concerns.

As for defamation, those First Amendment concerns pose a formidable obstacle for a plaintiff like Zuckerberg. In the regime of libel law, the boy wonder of social media would undoubtedly be classified as a public figure. This means that he would have to prove that the film falsely depicted facts about him and that the producers did so knowing of that falsity or while entertaining serious doubts as to truth. This is the “actual malice” First Amendment formulation from New York Times v. Sullivan. Applied to hypothetical defamation claims of Zuckerberg, it seems unlikely that the producers, who vetted their factual research and relied on actual deposition testimony, could be found at fault.

The actual malice standard most often comes into play to protect works of journalism, rather than the cinema. One notable element that primes the pump for plaintiffs in defamation actions against journalists is missing in a potential Zuckerberg case. Plaintiffs who win mammoth jury awards against news organizations often are those who have in fact suffered catastrophic damage to their reputation. If the newspaper falsely portrays you as a liar and a thief, thereby causing you to lose your job, marriage and social standing, a jury may be inclined to compensate you with a large chunk of the publisher’s wealth. But such is not the case with Zuckerberg. He conspicuously carries on as the wunderkind CEO of Facebook.

So, no one need feel sorry for Mark Zuckerberg because of his poor prospects as a plaintiff. After all, when you have billions, who needs a defamation case?

— Paul Watler is a partner at Jackson Walker. He can be reached at pwatler@jw.com.