Klout, Commercial Value, and the Right of Publicity

It was the Red Bull that got my attention.  Before then, I had “earned”” occasional “perks” through my Klout account–from brands I’d never heard of, like a new flavor of vodka or a romance novelist–but I hadn’t paid much attention to them.

energy_drinks_redbullRed Bull, though, was a brand that meant something to me. And here they were offering me four free cans, plus a year’s subscription to their magazine, just for being me. I accepted, and sure enough, my perks soon arrived by mail.  I snapped a picture and posted it to Twitter, figuring that was the least I could do to say “thanks.”

That’s an example from my experience about how Klout is intended to work. This social metrics site measures its users’ “influence” on a scale of 1 to 100–with 1 being some schlub with no friends to 100 being Justin Bieber. It calculates these scores by applying its proprietary algorithm to the various interactions between you and others across your various social networks.  Over time my score has climbed as high as 62, though I’ve slid a bit to 59 as of this writing.

The more influential that Klout thinks you are, the more likely its advertising partners–brands like Red Bull, the vodka makers and the novelist–are to offer you “perks,” or freebies. The logic behind these promotions is that these “influential” users will return the favor by promoting the brand to their own followers, thus maximizing the impact of the brand’s expenditures.

It’s easy to scoff at the idea of quantifying such a nebulous concept as a social media user’s influence, and to pity those who obsess over their Klout scores as a validation of their own self-worth. For all their flaws, however, sites like Klout (there are several) are hardly the first to recognize the commercial value of an individual’s goodwill.  Advertisers have been capitalizing on personal influence as long as there has been advertising.

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And the question of who owns and controls that influence–that clout–is increasingly important in the digital age. The right of publicity–a subject that I write and litigate  about frequently–is an entire body of law dedicated to sorting out the answers to those questions.  In nearly all jurisdictions, however, before a person can have a legally protectable right of publicity, they must first demonstrate that their identity has some commercial value associated with it. In other words, that associated their name or likeness with a product or service would make others more likely to purchase that product or service.

Digital publishing and social media have made it ridiculously easy to make use of another person’s identity. But that ubiquity also made it difficult to prove that the mere use of someone’s name or photo has made any difference–until better analytics came along. The first case I’m aware of to suggest that individuals can have real commercial value in social media was a 2011 ruling of the US District Court for the Northern District of California in Fraley v. Facebook . There, Judge Lucy Koh held that “Sponsored Stories”–ads that told Facebook users what brands their friends liked–could potentially be misappropriations of the friends’ identities.

Even the Fraley case, however, never managed to answer the question of how much those users’ identities were worth, or how such a thing would even be measured.  (The eventual settlement of the case put no more than $10 in the hands of any affected individual.)  That’s where sites like Klout come in.  Fallible though they may be, these reputation-tracking sites offer the closest thing available to objective measurement of an individual’s commercial value.  I think it’s only a matter of time, therefore, until we see Klout scores used as evidence in right of publicity litigation.

Meanwhile, I’ll know that my identity is at least good for a vodka Red Bull and a mindless book.

 

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