“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.
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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.
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)
3 Main Characters of a Trade Secret: trade secrets, conversion, and interference with prospective economic advantage.
• 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. jurisdiction (that 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.