Who Owns Your Social Media Content?

June 6th, 2014

Leonard A. Bellavia, Esq.

Senior Partner, Bellavia Blatt, PC

It seems that interest in using social media websites such as Twitter, Facebook, and YouTube as advertising tools increases dramatically each day.  Many trade publications devote significant space in their periodicals to teaching businesses how to maximize interactions with potential consumers, facilitated by social media, to generate sales.  Trade shows and other conferences now offer several workshops on the topic to help dealers improve their results with the medium.  As businesses embrace social media, important questions arise.   If executed properly, social media can be an effective tool at generating interest in a particular brand and driving viewers to a business’s website.  Without proper precautions, you may find your business does not own the social media content produced or the business’s social media account and its “followers.”

A recent lawsuit highlights how disputes arise when a former employee wishes to retain the social media account and/or content generated for his or her own benefit.  An employee of PhoneDog.com (“PhoneDog”) was responsible for uploading product reviews to the internet and generating traffic to the company’s website using social media.  He created a Twitter account to facilitate this effort and eventually accumulated approximately 17,000 “followers,” or individuals subscribed to receive updates he posted to Twitter.  When the employee left PhoneDog, he changed the name of the Twitter account from @PhoneDog_Noah to @noahkravitz and continued to use the account for his own purposes.  PhoneDog brought suit against the employee for, among other things, interference and conversion of PhoneDog’s property (here, the Twitter account and its associated followers).

Generally, there are different ways courts determine ownership of social media accounts and content depending on whether the content is copyrighted or not.  Most issues that the dealership would face regarding possible disputes involve non-copyrightable material, so understanding how courts evaluate these ownership rights is helpful.  For non-copyrighted material, ownership will depend on whether the employer has affirmatively addressed ownership in an employment agreement, social media policy, or something else that clearly transfers rights to the employer.  If the employer does not expressly transfer these rights, the employer may still assert possessory rights if the employee generated the social media content within the employee’s scope of employment.  In terms of who owns the “followers,” often the social media service’s terms of use will govern.

When creating your own social media policies, think about how you can protect your business if employees try to appropriate a social media account or content for their own purposes.  First, understand each social media company’s terms of service and what rights the social media company may retain for itself because of this agreement.  Draft your employee handbook and supporting documents to clearly identify what social media accounts and content are the property of the company and what, if any, rights are retained by the employee.  These agreements should clearly state what is considered permissible use of the dealership’s social media accounts and what is permissible conduct by the employee when using these accounts on behalf of the dealership.  Make sure to name the social media accounts in a particular way.  For example, do not combine the company’s name with the name of the person managing the account, like company_Bob.  Instead, use the dealership’s name only for the account’s name.  Documenting your social media policy and sharing it with employees can help your business avoid potential disputes over who owns the account and the content generated.

If you have any questions about your company’s social media polices, please call Leonard A. Bellavia, Bellavia Blatt, PC at 631-224-7000.

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