John A. Snyder posted this article on the Jackson Lewis Non-Compete and Trade Secret Report blog about a dispute involving ownership of a Twitter account.
Prepared by Alexander Nemiroff
A number of courts throughout the nation are grappling with disputes between employers and departing employees over the ownership of social media accounts. These employers are attempting to seek ownership over company Twitter and LinkedIn profiles claiming, among other things, that these contain “trade secrets.” Employees dispute these contentions by pointing out that there is nothing “secret” about social media profiles and that employers have no inherent property interests in Twitter and LinkedIn accounts.
For example, in Phonedog v. Kravitz, No. 3:11-cv-03475 (MEJ) (N.D. Cal., Nov. 8, 2011), a federal court in California denied a motion to dismiss where the employer sought damages for each Twitter follower that a departing employee took with him. The employee was given use of and maintained a Twitter account for the employer’s business during his employment. When he left, he changed the Twitter account handle and continued to use the account. Phonedog and its former employee do not have a written agreement pertaining to ownership of the disputed Twitter account. The company alleged several claims against the departing employee, including misappropriation of trade secrets, conversion, and tortious interference with prospective advantage.
Another such pending dispute is Eagle v. Morgan, No. 2:11-cv-04303 (RB) (E.D. Pa., Dec. 22, 2011). A federal court in Pennsylvania denied a motion to dismiss in a dispute over an employee’s LinkedIn account. The disputed LinkedIn account was used for company business and developed by company personnel. As in Phonedog, the parties do not have a written agreement as to ownership of the disputed LinkedIn account. Both the company and the employee brought claims against one another over use of this LinkedIn account.
The above cases are headed into prolonged discovery and extensive litigation. These disputes may have been avoidable had the parties entered into a clear written agreement at or near the inception of the employment relationship. Such an agreement was upheld in Ardis Health, LLC v. Nankivell, No. 1:11-cv-05013 (NRB) (S.D.N.Y., Oct. 19, 2011). A federal court in New York granted a preliminary injunction and required an employee to turn over access to social media sites to her employer pursuant to the obligations under the written Non-Disclosure and Rights to Work Product Agreement between the parties.
All employers who profit from their employees’ use of social media should be aware of and carefully analyze these issues. In many cases, a properly drafted agreement delineating the property interests of employee work product will save employers from time-consuming and expensive litigation over ownership of social media accounts.