Let’s say a couple has a joint Farmville account. They labor over it for months, even years, lovingly tending their turnips and midget goats, trading seeds and stud horses with their neighbors, etc. Then one day they get divorced, and because they live in a community property state, they have to either divide all their stuff in half or, if it’s indivisible, like their home, one spouse must reimburse the other for half its value. But what happens to the Farmville account?
This question is being taken up in earnest by lawyer and legal scholar Sally Brown Richardson in the forthcoming paper ‘Classifying Virtual Property in Community Property Regimes: Are My Facebook Friends Considered Earnings, Profits, Increases in Value, or Goodwill?,’ to be published in the Tulane Law Review.
Richardson doesn’t address Farmville per se, but she does address Facebook, websites, email contacts and the like, and the legal precedents she’s exploring would presumably apply to everything from medals accrued on Xbox Live to gold stashed away in World of Warcraft, if it could be proved that any of these virtual goods contributed to the professional success of either spouse.
Here’s how Brown describes the various Facebook conundra facing courts deciding the issue in future divorce cases:
Suppose when H entered the marriage he had 500 Facebook friends. During the course of the marriage, H acquires 500 more Facebook friends. Unlike photos or comments, Facebook friends are not content H posts; Facebook friends are connections H makes. By friending people, H will gain certain rights because he will be able to view more Facebook profiles.
Similarly, by adding additional friends H generally allows more people to see his profile. Thus, increasing the number of Facebook friends, H increases the value of his Facebook profile because he increases the rights of his profile. The value of H’s Facebook page was increased using community labor; H had to spend time and energy finding and requesting friends.
Because H’s labor during the community increased the value of his separate property, W would be entitled to either a reimbursement or an ownership interest in that separate property depending upon the jurisdiction.
Brown also notes that “The obvious difficulty would lie in determining how much a Facebook friend is worth.”
I’m guessing that would depend, in part, on the nature of the friend. If I manage to hook up with a celebrity on Facebook, I suppose that would be worth more than being friended by that ex-jock from high school who now sells insurance in some wind-blasted corner of North Dakota.
It sounds frivolous, but given that many businesses are now questioning whether or not their Facebook pages now have more value than their own websites, her logic seems unassailable:
If a Mom and Pop shop create a Facebook profile to drum up more business, upon the divorce of Mom and Pop, who has rights to the Facebook profile is as valid of a question as who has rights to the book of business or the trademark of the logos.
No doubt one consequence of this expanding area of the law is that rights to Facebook “likes” are now going to be written into the prenuptial agreements of Hollywood elites.