By Rob Fischer, Esq., ,Joseph J. Lazzarotti, Esq. & Alexander Nemiroff, Esq. of Jackson Lewis LLP
Disputes between employers and departing employees over the ownership of social media accounts are on the docket of a number of federal district courts throughout the nation. Employers in these cases are asserting ownership over company Twitter and LinkedIn profiles claiming, among other things, that they 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.
In PhoneDog v. Kravitz, 2011 U.S. Dist. LEXIS 129229 (MEJ) (N.D. Cal., Nov. 8, 2011), for example, 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 example is Eagle v. Morgan, 2011 U.S. Dist. LEXIS 147247 (RB) (E.D. Pa., Dec. 22, 2011). A federal court in Pennsylvania denied a motion to dismiss a suit over an employee’s LinkedIn account. The disputed LinkedIn account was developed by company personnel and used for company business. As in PhoneDog, the parties do not have a written agreement as to ownership of the account.
These cases are headed into prolonged discovery and extensive litigation. They may have been avoided had the parties entered into clearly written agreements at or near the inception of the employment relationship. Such an agreement was upheld in Ardis Health, LLC v. Nankivell, 2011 WL 4965172 (NRB) (S.D.N.Y., Oct. 19, 2011). A federal court in New York granted a preliminary injunction requiring an employee to give her employer access to social media sites pursuant to obligations under the parties’ written Non-Disclosure and Rights to Work Product Agreement.
Employers who profit from their employees’ use of social media should carefully analyze these issues. In many cases, a properly drafted agreement delineating the property interests in employee work product will save employers from time-consuming and expensive litigation over ownership of social media accounts.
Jackson Lewis attorneys are available to answer inquiries regarding this and other workplace developments.