The intellectual property series will be back next week; today I’d like to discuss a story that’s been in the news recently…
You may or may not have already heard the story of Noah Kravitz, a man from Oakland, CA who worked at a mobile phone website start-up, Phonedog.com, until October 2010. While working at Phonedog.com, Kravitz opened a Twitter account under the handle Phonedog_Noah, eventually gaining over 17,000 followers. When Kravitz left Phonedog.com in October 2010, he claims he and the company agreed that Kravitz could keep the Twitter account so long as he tweeted on behalf of the company from the account from time to time. Kravitz changed the handle to NoahKravitz and continued tweeting from the account, until eight months later when Phonedog.com sued Kravitz for control of the Twitter account, claiming it represented a customer list that the company was entitled to.
Based on what I’ve read of the case, I do not believe Phonedog.com’s argument that the Twitter account represents a customer list holds up — not only is it likely untrue that every follower on the feed is also a customer or potential customer of the company, but in order to protect against disclosure of customer lists the law requires that companies protect the lists as well, taking reasonable steps to keep them private and secret. In this case, Twitter accounts’ followers lists are publicly viewable, so the customer list argument must fail.
The better argument, and what I believe is truly at the crux of the Phonedog.com case and ones like it currently in courts around the country, is whether a Twitter feed operated by an employee, wholly or in part for the benefit of the company, is part of the company’s goodwill (in the accounting/business sense) and therefore belongs to the company, or whether the account truly is the personal property of the employee operating it. A number of factors can go into analyzing this issue, including: whether the individual who created and is operating the account does so at the direction of the company, whether other employees not operating the account have or can gain access to the account, whether the handle includes part or all of the company name or the look and image of the account is otherwise identifiable with the company (for example, using the company’s logo in the avatar or website background), whether the content is dedicated wholly or in part to the company, and whether users consider the content to be the official message of the company or otherwise coming directly from the company. Under this analysis, I believe Phonedog.com may have a better argument that the account belongs to it and not to Mr. Kravitz.
This story and others like it should serve as a warning to start-ups, most of which rely heavily on social media and networking as part of its marketing and public relations strategy. When companies direct or encourage employees to create company-related social media accounts, they should have written agreements in place that clearly state such accounts are the property of the company. In addition, businesses should also consider taking steps to ensure they maintain control over the company’s social media message by reasonably limiting employees’ ability to post social media content relating to the company — for example, prohibiting employees, without prior authorization, from making accounts with the company’s name or logo, or posting content that claims to be or can reasonably be inferred as the official message of the company.
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