How Mark Zuckerberg could sue over 'Social Network'

By Eriq Gardner

Each and every day, it becomes less likely that Facebook founder Mark Zuckerberg will sue producers of "The Social Network." If he wanted to file a splashy lawsuit, he probably would have already, and, as we've reported, he decided early on not to take an especially adversarial position on the movie.

Still, the New York Times reviews Zuckerberg's legal options today anyway. The paper interviews several First Amendment experts who conclude -- shocker! -- that it would be difficult for Zuckerberg to pursue a libel action.

As a public figure, Zuckerberg would have a high hurdle in showing that filmmakers were reckless or had actual malice. Plus, the movie is based in part on court documents and is careful to present the story as a series of perspectives on what happened, rather than one narrative presented as fact. Producers also gave Zuckerberg and Facebook an opportunity to see the script and give some feedback.

However, if Zuckerberg did want to take a shot, there's a case in Tennessee that might offer him some help.

The dispute involves the film "Soul Men," produced by the Weinstein Co.

Before the film came out, Grammy-winning singer Sam Moore complained to the Weinsteins that the film's portrayal of a Moore-like character who uses racial slurs, swears, refers to women as "bitches" and brandishes weapons, would hurt his reputation. After the movie came out, Moore sued the filmmakers, alleging that the picture violated his rights of publicity and had infringed his trademarks. Here's his complaint, which perhaps shadows a possible dispute over "Social Network."

Note what Moore's lawsuit didn't include: a defamation claim. Moore's lawyers likely knew that their client was a public figure and couldn't win there. Instead, the plaintiff is arguing his publicity rights were violated, and in that claim, Moore's public stature actually helps his cause.

The NYT makes no mention of the possibility that Zuckerberg could sue over misappropriation of likeness, but since it's a claim that appears to be popping up more frequently on the court docket (and on this blog), it's worth some attention.

In the "Soul Men" case, TWC argued that the First Amendment usurped such a claim. The studio, represented by Bert Fields, contended that it had a "fair use defense" for a fictionalized biographical treatment of Moore's likeness. 

In May, however, a federal judge in Tennessee rejected a bid to have the case dismissed. The judge wrote:

"The plaintiffs do not allege that the defendants have told Moore’s life story; rather they allege that, through the Movie-related products, they have exploited and distorted Moore’s image for commercial gain. In light of this more nuanced reality, additional discovery and fact gathering is necessary to determine if the plaintiffs’ rights under the [law] were violated or whether the defendants’ use of any likenesses of Mr. Moore is protected by the First Amendment."

Ask a First Amendment lawyer about libel, as the NYT did, and you'll get a pretty cut-and-dry assessment. Ask a First Amendment lawyer about publicity rights, on the other hand, and you'll hear the sound of head-scratching. Many legal practitioners are unsure of the boundaries over publicity rights because it's a state-based claim, and each state has different laws and court decisions governing its scope. In short, a lot of grey area, especially considering "Social Network" uses Zuckerberg's real name. 

In the meantime, if Zuckerberg is curious how the Sam Moore lawsuit is resolved, he should be in Tennessee on Dec. 6. That's the date a jury trial is scheduled to commence in this case.