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“Who Owns Your Twitter Account? #Maynotbeyou: Legal issues Surrounding Ownership of Social Media Content”. Presented to DBA Intellectual Property Law Section June 22, 2012 John G. Browning. I. Social Media Accounts and the Employment Relationship.
Presented to DBA Intellectual Property Law Section
June 22, 2012
John G. Browning
A. TEKsystems, Inc. v. Hammernick (U.S. District Ct. – Minn)
• settled without judicial resolution
• former employee accused of contacting customers and former co-workers via LinkedIn in violation of non-solicitation agreement
• former employee argued LinkedIn contact and list of clients constituted publically available information
• Court agreed, denying trade secret protection
• recruiter leaves to start competing recruiting agency, takes LinkedIn contacts with him
• Court rules that Hays had to disclose his contacts (that they were not his to keep)
• Maremont, director of marketing for SFDG, created and maintained both SFDG Twitter and Facebook accounts, as well as personal Facebook and Twitter Accounts
• While she is hospitalized, SFDG begins using Maremont’s personal accounts to promote the company. She sues, claiming Lanham Act violations, SCA violations, etc.
• Court denied SFDG’s MSJ, reasoning that “Maremont created a personal following on Twitter and Facebook for her own economic benefit.”
Oct. 19, 2011)
• Ardis Health hired Nankivell as “Video and Social Media Producer;” has her sign a “Work Product Agreement” that all work created by her is company’s sole and exclusive property.
• Nankivell is fired, and refuses to return company-provided laptop and social media account login information. She also is showing content from a social media site she developed for the company as part of her portfolio during interviews.
• Ardis sues, claiming trade secret misappropriation, among others.
• Court orders Nankivell to turn over the login information, but not to return the laptop or to stop displaying website content as part of her portfolio.
• Example of the importance of having an agreement that documents ownership.
PhoneDog sues in July 2011, alleging misappropriation of trade secrets, conversion, and interference with prospective economic advantage.
Trade secret is “any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.”
- Texas Penal Code Ann. §31.05(a)(4)
Kravitz files motion to dismiss based on lack of jurisdiction (that PhoneDog couldn’t satisfy the $75,000 minimum threshold) and failure to state a claim.
• state explicitly that customers/clients that may be developed through the use of social media are company property;
• names, handles, etc. used to communicate with clients are company property; and
• such names, handles, etc. can’t be used post-termination to communicate with clients.
2. Implement a comprehensive social media policy that not only governs the employee’s conduct on social media, but that also establishes other guidelines:
• who has access to account settings and passwords;
• who may edit or add content to an account;
• whether the account name should incorporate the company name; and
• provides for procedures for relinquishing use or access upon end of employment.
76% of companies use social networking for business, yet 45% of companies don’t have a social media policy.