A topic that I am regularly asked about is the ownership of
accounts, like Twitter accounts, their followers, their content, when
employees change jobs. It is a tough question to answer, legally, so I
reached out to some very bright legal minds that are part of the “Law
and Social Media” group on LinkedIn.
Before you read their thoughts, their responses, keep in mind that
this is not intended as legal advice you could use in court. In my
opinion all of the folks that participated in this have brought great
insights to the table, but always confirm your individual business
circumstances with your own legal team. Now, in their words, not mind,
the legal team:
Christopher J. McGeehan, from McGeehan Technology Law, LTD.
“I am a Chicago intellectual property and Internet lawyer and
represent individuals and small businesses in technology-related
matters.
Like many other legal questions, the answer is “it depends.” It
depends on the employee’s job description, the nature of account is at
issue, the state the employee is in, and the contents of any written
employment agreement. Generally, unless it is clearly the employer’s
account, the account should belong to the employee.
The first question in any employee intellectual property case is “What
was the employee hired to do?” Employees who are hired to solve
problems or to create content presumptively assign such inventions and
writings to the employer. These policies are reflected in state-law
Employee Invention (or Patent) acts and in Section 201 of the Copyright
Act. If the employee started the account on his own, then the employee
would own the rights to his creations.
The next question is “what is nature of the account.” If the account
is the Acme Fan page, then Acme probably owns the account. If the
account is John Smith’s personal account and (John Smith is the
employee’s name) then John Smith owns the account. If the account is
somewhere in between, e.g. “John the Acme Answer Guy” then it the
extent to which the employee can be identified in the account. The
reason this is important is that most standard employment agreements do
not contemplate assignments of rights of publicity, which are based
upon the use of a person’s identity. While rights of publicity are
commonly associated with celebrities like Elvis, non-celebrities’
identities can also have commercial value. If there is no written
agreement granting the company rights in the employee’s identity in
connection with his social media endeavors, the employee will establish
ownership rights in the account to the extent the account reflects the
employee’s identity based upon the right of publicity. Rights of
publicity also vary state by state.
Further, certain aspects of social media accounts do not fit nicely
into existing templates. While the account content is easily addressed
by copyright law, it is unclear what sort of property rights, if any,
an account holder possesses in friends/followers. While customer lists
are typically protected as trade secrets, this protection require that
the list derive its economic value from secrecy. As Followers and
Friends are posted online for all to see, there is no secrecy and thus
trade secret protection.
An employer could only claim the rights to friends and followers under
a noncompetition or nonsolicitation agreement. The enforceability of
such agreements varies from state to state. For example, California
typically does not enforce them and most states only enforce them to
the extent that they are reasonable in geographic scope and duration.
Further, it is doubtful that a nonsolicitation agreement could ever
reach a relationship that is noneconomic. Thus even if the employee
were forced to give up an a specific account, he could well re-invite
his contacts to follow his new account.”
Paul W Reidl, Law Office of Paul W. Reidl
“This is an emerging area of law, but I think that a court would
probably look at the same kinds of factors to determine “ownership”
that they would review in the bricks & mortar context. Those
factors might include: was the employer’s e-mail address used to
establish the account; was the account used primarily for the
employer’s business; was tweeting part of the employee’s job
responsibilities; did the employee access the account from the office
or over the employer’s server; did the employer have a written policy
regarding use of the internet by employees and was the use authorized
by that policy; did the employer have a written policy concerning
ownership of content created by employees in connection with the
business?
These factors would likely be considered along a spectrum. On one end
of the spectrum would be an account that was used for purely personal
purposes, never accessed at the office, and that used a non-business
e-mail address. That should be owned solely by the employee. On the
other end of the spectrum would be an account that used a business
e-mail, was accessed frequently at the office, was used primarily for
business, and there were written policies stating that the company
owned it. That would probably be owned by the company. I also think
that if the e-mail address on the account was a business e-mail address
there might be a presumption that the employer owned it.”
Stuart Adams, Stuart Adams Law Office
Stuart shared this post with me that I will simply link to.
I hope you found this useful.
