Monday, April 29, 2013

Who Owns Social Media Accounts? Follow the Sage Advice of Noah Kravitz

Your business has discovered the value of using social media platforms like Twitter, Facebook, and LinkedIn to market and promote products and services. But who owns these accounts and what happens when an employee with a Twitter handle, LinkedIn account, or legions of Facebook followers leaves? What monetary value can be assigned to “likes” and followers?

Until you’re able to get all the answers from the forthcoming Minnesota Small Business Assistance Office publication being authored by Gray Plant Mooty entitled “Legal Guide to Social Media,” a few recent cases may offer some guidance to businesses using social media (and who isn’t):

In Eagle v. MorganDr. Linda Eagle sued her former employer, Edcom, Inc., for its continued use of her Linked In account. She sought damages for lost business opportunities, damages to her reputation, and diminished value in her LinkedIn account. The Pennsylvania court found in her favor on several state claims, including unauthorized use of her name, invasion of privacy by misappropriation of identity, and misappropriation of publicity. The court noted that while the company had urged employees to create LinkedIn accounts and had guidelines covering on-line content, the company had never informed employees that their LinkedIn accounts were the property of the employer. Unfortunately for Dr. Eagle the court awarded no damages.

In Phonedog LLC v. Noah Kravitz, Phonedog went after a former employee who continued to use a Twitter account that had been initially created for use by the company. Phonedog is a business that provides mobile news and reviews of products and services of mobile phone carriers through a website and uses a variety of social media , including Twitter, Facebook and YouTube, to market and promote its services to potential users. While an editor employed by Phonedog, Kravitz created a Twitter account. Kravitz used the handle @phonedog_Noah to disseminate Phonedog marketing material and reviews of mobile devices. Kravitz left Phonedog and simply changed his Twitter handle to @noahkravitz. At that time the Kravitz Phonedog Twitter account had reached 17,000 followers. Phonedog sued Kravitz alleging that the Twitter account belonged to Phonedog and included confidential business information. Phonedog also asserted the value of Twitter followers at $2.50 per follower per month and sought damages of $340,000. The parties reached a settlement agreement and Kravitz was allowed to retain custody of @noahkravitz. After the settlement Kravitz issued the following statement:

“If anything good has come of this, I hope it's that other employees and employers out there can recognize the importance of social media to companies and individuals both. Good contracts and specific work agreements are important, and the responsibility for constructing them lies with both parties. Work it out ahead of time so you can focus on doing good work together -- that's the most important thing."

Lessons Learned: Listen to Noah. Have a corporate policy in place governing use of social media. If your employees are asked to use social media to market and promote your business’s products or services, have written agreements that make it clear that the company owns the account, including customer lists, friends, and followers, and that the employee relinquishes any rights to the account when they leave.

I guess the settlement of the Phonedog case means we still don’t know what a Twitter follower (or a “like”) is worth…

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