Washington Lawyer

Yours, Mine, or Ours?

From Washington Lawyer, July/August 2012

By Adam S. Walker

Illustration of people using various forms of communication. Illustration by Otto Steininger.“Throughout history, technological and societal advances have led to the creation of new property rights.”[1]

Communication through interactive dialogue, otherwise known as social media, is reshaping the way we interact with one another. As social media tools continually become more intertwined with the daily routines of our lives, the social media accounts themselves become increasingly more valuable to businesses.

PhoneDog v. Kravitz,[2] a case pending in the U.S. District Court for the Northern District of California, has the potential to significantly alter the legal landscape regarding social media rights. The claims in the case are rooted, at least in part, in ownership of various aspects of a social media user account. The case also raises an important question: To what extent does a social media account belong to the user?

Battle Over a Handle
In April 2006, Noah Kravitz began working at PhoneDog.com, a mobile news and reviews resource company. Kravitz’s duties required him to regularly post his opinions and reviews of mobile products and services using the Twitter handle @PhoneDog_Noah, which can only be accessed through a password.[3] During Kravitz’s employment with PhoneDog, the @PhoneDog_Noah accumulated approximately 17,000 Twitter followers.[4] In October 2010, Kravitz’s employment with PhoneDog ceased, and PhoneDog requested that Kravitz turn over to the company control of the Twitter account and all account followers. Instead of complying, however, Kravitz changed the account handle to @noahkravitz and continued to post regularly.

PhoneDog sued Kravitz for misappropriation of trade secrets, intentional interference with prospective economic advantage, negligent interference with prospective economic advantage, and conversion.[5]

On November 8, 2011, the initial complaint survived a motion to dismiss filed by Kravitz. The court allowed the trade secret and conversion claims to stand, and gave PhoneDog leave to amend its claim for intentional interference with prospective economic advantage.[6] Following the filing of the amended complaint, on January 30, 2012, the court denied Kravitz’s motion to dismiss the tortious interference claim.[7] As Washington Lawyer went to press, the parties were in discovery.

User, Not Owner
The procedures to create a Twitter account are simple. After accessing the Twitter Web site, a registrant is asked to submit his or her name and e–mail address, create a user name and password, and accept Twitter’s terms of service to activate the account. Though the registration is fairly straightforward, the terms of service to which every user must agree include language that creates a significant yet overlooked distinction between ownership rights to the Web site and its services (the account and use of the account) and ownership of the account and its content.

Twitter’s terms of service state that “All right, title, and interest in and to the Services [defined as a user’s ‘access to and use of the services’ and Twitter’s Web sites] (excluding Content provided by users) are and will remain the exclusive property of Twitter and its licensors.”[8] These rights appear to be all-encompassing and to grant Twitter rights to the Web site, including all services provided. But regarding what rights users have over their accounts, the terms state: “You retain your rights to any Content [defined as ‘any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services’] you submit, post or display on or through the Services.”[9] The terms also provide: “By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non–exclusive, royalty–free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”[10]

Although the terms of service specifically state that they govern a user’s access to and use of Twitter, they do not convey ownership rights to anything other than content posted by the user. The language in the terms clearly attempts to distinguish between ownership of the content by the user and ownership of the Web site and its services by Twitter.

In addition to contractual ownership rights to the Web site, the terms of service also assert intellectual property rights to the Web site and its services: “The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries.”[11] Assuming that the Twitter software and the user account computer program(s) are copyrightable and Twitter is the “creator,” as a matter of copyright law all copyrights in the software belong to Twitter. As a result, Twitter owns the user account, whereas the user holds a right or license to use the account.

In any event, the terms of service between Twitter and its users grant Twitter exclusive ownership of all aspects of the Web site. These contractual rights almost certainly would extend to ownership of the user accounts themselves (since the user accounts are part of the Web site) and to the right to allow use of a user account (a service offered by the Web site). The terms do not grant users ownership rights to any aspect of Twitter’s services except content ownership.

In addition, as will be examined more in the following paragraphs, Twitter, not the user, exerts dominion and control over the user accounts. Twitter is the only entity with the ability to activate and remove user accounts from its Web site, social network, and underlying software codes where the accounts are stored. Twitter’s authority over the Web site reinforces the distinction between the rights of Twitter and the limited rights of its users.

The question of who owns the Web site and user accounts has not yet been decided in PhoneDog (Kravitz raised the issue in his initial motion to dismiss, but the judge refused to answer until more facts were in the record[12]), but copyright and contract law appear to lead to the same conclusion: user accounts, either as a service offered by or as part of Twitter, are owned exclusively by Twitter. If this is true, PhoneDog may have a significant hurdle to overcome, particularly on its conversion claim, as it does not appear to be the owner of the services to and in Twitter’s Web site and/or the user account in question. Demonstrating such ownership rights will be necessary for PhoneDog to prevail on its conversion claim.

Do You Own Your Posts?
To most individuals, tweets (posts or status updates on a user’s Twitter account) appear to be nothing more than inconsequential mishmashes of 140 characters or less. In situations where an individual has created and/or is using an account primarily for personal, non–employment–related postings, the posted content may be of little or no value to anyone. However, the importance of content ownership has increased dramatically since companies such as PhoneDog have begun employing individuals to administer their social media accounts and to make regular posts as part of the companies’ business.

Ownership rights to content posted by an employee ultimately may be determined by the circumstances under which the content was created, such as whether the content is copyrightable and whether the employer has an agreement with the employee regarding ownership of the content.

Under U.S. copyright law, with certain exceptions such as works made for hire, once an original work is fixed in a tangible medium of expression,[13] the creator of the work owns the copyright.[14] Although the “originality” threshold is low under the law, the work must contain some minimal amount of creativity.[15] Meeting this standard may be difficult for Twitter users since the radically compacted way Twitter promotes communication stifles creativity. Many tweets about one’s everyday occurrences lack any semblance of creativity. By contrast, someone who crafts something, such as a poem, is more likely to meet the creativity threshold since some level of creativity has been exerted. As a result, whether a user’s tweet will be copyrightable will need to be determined on a case–by–case basis.

If posted content is not copyrightable, the determination of ownership is likely to depend on a number of factors, the most important of which may be whether the employer has affirmatively addressed the issue in an employment agreement, social media policy, and so forth, with clear language transferring all rights to posted content to the employer. Absent such language, the employer may still retain ownership of posted social media content if the posts were made within the employee’s scope of employment and that, under the law of agency,[16] all benefits and rights resulting from the actions of the agent will be attributed to the employer.[17]

With respect to copyrightable posts, the employer may own the copyright as a work made for hire if (1) the work was created within the scope of the employee’s work duties, or (2) the work was specially ordered or commissioned.[18] To determine who is an employee under the work–made–for–hire doctrine, courts will look to a number of factors under general common law of agency, such as (1) control by the employer over the work, (2) control by the employer over the employee, and (3) status and conduct of the employer.[19] Specially ordered or commissioned work applies to work created by independent contractors who are not employees under general common law of agency. Work performed by independent contractors will be considered work made for hire only if both of the following conditions are met: (1) the work was performed within one of the nine categories of work listed under the statute definition, and (2) there is a written agreement between the parties specifying that the work is a work made for hire.[20] Failure to satisfy these requirements will result in the independent contractor and not the employer retaining ownership of the copyrights created.

Nothing in the record in PhoneDog indicates that Kravitz was acting as an independent contractor, and neither party disputes that the posts were done outside the scope of Kravitz’s employment, or outside the instruction of PhoneDog.[21] An employer–employee relationship appears to have existed between Kravitz and PhoneDog. If the posts are copyrightable, PhoneDog is likely to maintain copyright ownership.

Finally, situations where copyrightable posts are created that have no relation to the employee’s work, and/or were created outside the scope of the employee’s duties, will likely result in the employee retaining rights over the content posted. Essentially, the farther away a correlation can be established between the content posted by an individual and his or her employment duties with the employer, the less likely the employer would be able to make an argument that the content was posted in furtherance or as part of the employee’s employment duties, thereby making the posted content property of the employee and not the employer. This may seem obvious, but as Twitter and other social media platforms become increasingly intertwined with the way companies do business, and as social media use by individuals becomes increasingly popular, the line between personal and professional content becomes blurred.

Although ownership of content posted on social media accounts may seem of no great consequence in light of the fact that a user could attempt to recreate a similar or identical post, maintaining ownership of the content significantly limits the possibility that an ex–employee will be able to benefit from content created on behalf of the company, especially if the work is copyrightable, is difficult to recreate, and/or is highly valuable to the company. As noted, determining ownership of the content could depend on one or more of the following: the nature of the content; what agreements, if any, the employer and the employee have with each other; and the relationship between the postings and the employee’s employment duties.

Although there is no evidence in the PhoneDog trial record of any intention by PhoneDog to claim ownership of the posts at issue, or of the existence of an employment agreement specifying control over the Twitter account, an employer–employee relationship appears to have existed that will convey all benefits of Kravitz’s work to PhoneDog, including ownership of the posted content and/or any copyrights in the posts.

Control Over Followers
Invariably, one of the true benefits of Twitter, Facebook, or any other social media platform is the user’s ability to subscribe to another user’s post, status update, etc. Those who subscribe to someone’s social media feed are known as that user’s followers. One element of the PhoneDog litigation is PhoneDog’s belief that a follower is of economic value and benefit to a user, and that users “own” their followers. But whether a follower is of economic benefit to a user and, more important, whether a follower has monetary value are questions that will likely be subsidiary to the question, raised by PhoneDog’s conversion claim, of whether a user owns his or her followers. 

The elements of conversion, similar to most theft–based tort claims, are intertwined with one’s right to own or possess[22] tangible and, depending on the jurisdiction, intangible property.[23] According to Black’s Law Dictionary, ownership “implies the right to possess a thing,”[24] “possession” being defined as “the exercise of dominion over property.”[25] Examining PhoneDog’s conversion claim based on Twitter’s terms of service casts doubt on whether a user has ownership rights over followers in a social media platform.

Twitter’s terms of service provide that Twitter retains exclusive ownership rights to its Web site, as well as to services offered by the Web site and/or intellectual property embodied in the Web site, all of which, either individually or combined, are likely to entail rights to user accounts. This conclusion is strengthened by Twitter’s exercise of dominion and control over all user accounts.

Twitter’s terms of service state: “We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services, to suspend or terminate users, and to reclaim usernames without liability to you.”[26] Even if a user deactivates his or her account, Twitter does not remove the code from its operating programs; only the visual representation of the account is removed (i.e., the account name and listing). When a user reactivates a recently deactivated Twitter account, all of the user’s prior information is reinstated. This is because Twitter, not the user, retains control over the source code or software that contains all account information. Possession of user accounts belongs solely to Twitter; users simply have the right to use their accounts.[27] Thus, if all followers are account holders, and if Twitter owns all rights to all accounts, then it follows that a user cannot own a follower.

Twitter and other social media platforms afford users the ability to be self–selecting. Users are free to be friends with only those they wish to befriend, and to follow only the feeds that interest them. More important, users are free to defriend those with whom they do not wish to be friends anymore, and are just a click away from removing themselves from following people and things they no longer want to follow. This self–selection ability illustrates that a follower cannot be owned, at least by another user, because the holder of the account being followed has no control over—and, thus, no ownership rights to—the account’s followers.

Due to the contractual limitations imposed on Twitter’s terms of service and/or the lack of dominion and control over account followers, PhoneDog’s claim of ownership over Kravitz’s followers is significantly diminished. Unless PhoneDog is able to assert legal control and/or possession of the account’s followers, PhoneDog is unlikely to meet its burden of proof for conversion of the account’s followers by Kravitz.

Guarding Social Media Ownership
The facts of PhoneDog illustrate that as company business models become increasingly intertwined with social networking, businesses need to take steps to alleviate any confusion regarding the use and/or control of their social media accounts and content.

Protecting a company’s rights to its social media accounts can be achieved in a variety of ways. Registering user accounts under the company’s name will minimize confusion as to the purpose of the account and for whose benefit it exists. Companies also can seek injunctive relief against infringement of their trademarks[28] and/or dilution[29] in social media. A number of social media sites offer the option to terminate or transfer ownership of accounts that infringe third–party rights or that has the potential to confuse other users.[30] Seeking injunctive relief and/or utilizing social media remedial procedures are ways to combat unauthorized use of a company’s intellectual property or other tortious conduct. Preventing access to the account upon termination of an employee reduces the risk of an embattled ex–employee hampering or damaging the company’s social media presence. Conversely, if companies are hesitant to grant access to and use of its account by a select few individuals, certain social media platforms allow more than one person to serve as administrator of an account.  

As may be evident in PhoneDog, arguably the most important measure a company can take to protect its interests in a user account is to establish clear and concise contractual rights as to all aspects of the company’s social media account in the event of termination of the account’s administrator. In addition, specifying precisely the scope of the employee’s duties can minimize confusion as to whether the employee’s actions were job–related or not. Although, as discussed earlier, an employment contract may not be able to convey ownership rights to a social media account to the employer (because the service operator is the owner), a contract can, at a minimum, specify control over the use of the account, thus reducing the potential for a dispute such as that between PhoneDog and Kravitz.

What’s in the Fine Print?
Examining Twitter’s terms of service reveal that users maintain no ownership rights, aside from ownership of the posted content, to the services of or in Twitter’s Web site. Users merely have the right to use or access the services and the Web site. Users also lack ownership rights to account followers since users exercise no dominion and control over followers because followers are self–selecting—free to decide and choose their actions without interference or influence from the account holder. Due to the limited rights afforded to it, PhoneDog is unlikely to succeed in meeting its burden of proof to any claim of conversion or theft of account followers.

To adequately protect themselves from the pitfalls currently facing PhoneDog, companies should familiarize themselves with the rights afforded to them under a social media Web site’s terms of service, and craft clear and concise social media guidelines and/or language in their employment contracts that address control and use of any company social media account and content posted by the user prior to account activation.

Adam S. Walker is an in–house transactional attorney at Nutramax Laboratories, Inc. He can be reached at awalker@nutramaxlabs.com. The article originally appeared in the Intellectual Property Law Newsletter of the Pennsylvania Bar Association.

Notes
[1] Courtney W. Franks, Analyzing the Urge to Merge: Conversion of Intangible Property and the Merger Doctrine in the Wake of Kremen v. Cohen, 42 Hous. L. Rev. 489 (2005–2006) (examining how a party maintains ownership rights to intangible property).
[2] PhoneDog v. Kravitz,Case Number C 11-03474, 2011 WL 5415612 (N.D. Cal Nov. 8, 2011)
[3] Id. at *2.
[4] Id.
[5] Id.
[6] Id. at *14.
[7] Id., amended by PhoneDog, 2012 U.S. Dist. LEXIS 10561 (N.D. Cal. Jan. 30, 2012) (dismissing Kravitz’s motion to dismiss based on PhoneDog’s amended complaint alleging tortious interference). The court stated that it “is able to draw the reasonable inference that PhoneDog had an economic relationship with at least one third–party advertiser that was disrupted by Kravitz’s alleged conduct, causing it economic harm.”
[8] http://twitter.com/tos.
[9]Id.
[10] Id.
[11] Id.
[12] PhoneDog, 2011 WL 5415612 at *5–*6.
[13] 17 U.S.C. § 102.
[14] See id. at § 201(a).
[15] Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 358 (1991) (holding that the “originality requirement [of copyright law] is not particularly stringent,” requiring only “some minimal level of creativity”).
[16] Restatement (Third) of Agency § 1.01. “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.”
[17] See id. at § 3.05. The employer must still ratify the actions of the employee to be binding under agency law.
[18] See 17 U.S.C. §§ 101, 201(b).
[19] See Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
[20] See 17 U.S.C. § 101. The nine categories of specially ordered or commissioned work are (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) an answer material for a test, or (9) an atlas.
[21] See PhoneDog, 2011 WL 5415612 at *2.
[22] Restatement (Second) of Torts § 222(A) (1965). Conversion is defined as “an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.”
[23] Courts are split as to whether ownership rights can extend to intangible property. Jurisdictions that recognize ownership rights in intangible property generally do so when the intangible property is “merged” into a tangible medium. See Brass Metal Products, Inc. v. E-J Enterprises, Inc., 984 A.2d 361, 189 Md. App. 310 (Md. App. 2009) (citing Allied Inv. Corp. v. Jasen, 354 Md. 547 (1999) (stating that to succeed on a claim for conversion of intangible property, the Maryland courts have held that the owner’s rights must be “merged or incorporated into a transferable document”).
[24] Black’s Law Dictionary 9th ed. (West, 2009).
[25] Id.
[26] http://twitter.com/tos.
[27] Id. The beginning clause of Twitter’s terms of service states: “These Terms of Service (‘Terms’) govern your access to and use of the services, including our various websites, SMS, APIs, email notifications, applications, buttons, and widgets, (the ‘Services’ or ‘Twitter’), and any information, text, graphics, photos or other materials uploaded, downloaded or appearing on the Services (collectively referred to as ‘Content’). Your access to and use of the Services are conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms.” The language carefully states “your access to and use of the services.” Nowhere in this section or in any other section in the terms of service, except in the “Your Rights” section, does Twitter use the words “rights to,” “rights in,” etc.; rather, the wording relating to users always states “access to and use of.”
[28] See Lanham Act, 15 U.S.C. § 114. Stating that one is liable for trademark infringement if he or she “use[s] in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive…” In order to be liable for trademark infringement in the social media realm, the account must satisfy the use in commerce requirement, such as selling goods through the account.
[29] See id. 15 U.S.C. § 1127. Remedies for dilution extend only to famous marks. 
[30] See http://support.twitter.com/articles/18367-trademark-policy (Twitter’s trademark policy); see also http://facebook.com/legal/copyright.php (Facebook’s intellectual property policy).