As more and more employees are tasked with — or even hired for the express purpose of — tweeting on behalf of their employer, it is important to think about ownership of the twitter account from which they tweet. A twitter account can be an important asset to a business or organization because the account (and the owner thereof) amasses followers who can become customers, fans and/or contributors. Those followers can also share the marketing and informative content your company or organization chooses to share with others by re-tweeting, liking or quoting your tweets, or by old-fashioned word-of-mouth. If they suddenly disappear, it may take significant time and effort to amass those followers again, and some you may never get back.
That is exactly what happened to a popular mobile phone company, PhoneDog Media. Noah Kravitz, created a twitter account on behalf of his employer, utilizing the handle @PhoneDog_Noah. From this account, he tweeted regularly regarding work and personal issues. Eventually he amassed over 17,000 followers over four years. At the time, PhoneDog did not have any policies in place that articulated whether Mr. Kravitz or PhoneDog owned the twitter account.
When Mr. Kravitz left his employment to join a competitor, he did not just abandon the twitter account and he did not provide the password to his successor at PhoneDog. Instead he simply changed his handle to @noahkravitz and continued using the account, maintaining his own personal and professional communications with his 17,000 followers.
In July 2010, PhoneDog filed suit against Kravitz, alleging misappropriation of trade secrets, interference with economic advantage and conversion. PhoneDog values its damages at $2.50 per follower per month (for eight months that Kravitz used the account for his own benefit), which amounts to $340,000.00 in damages. Regarding this value, PhoneDog has issued the following statement: “The costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media L.L.C. We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands.”
Kravitz tells a different story. He maintains that PhoneDog initially allowed him to maintain the account, asking him in exchange to tweet from time-to-time, and that he upheld his part of the bargain.
A U.S. District Court sitting in the Northern District of California has allowed Phone Dog’s claims, for the most part, to proceed on the merits. The Court recognized the twitter account at issue as a valuable property right. As this matter continues to be litigated it will be interesting to watch what value is ultimately placed on twitter followers, and who is ultimately granted ownership of the account. The case has potential implications for a number of employees who tweet on behalf of their employers, including newspapers and magazine writers who utilize their own likeness to amass readership via twitter.
In light of PhoneDog v. Kravitz, it may be time to look at whether your company or organization could benefit from a written policy with delineates who owns twitter handles and other social media accounts utilized by your employees to market your products or services.
© 2012 by McBrayer, McGinnis, Leslie & Kirkland, PLLC.
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