Some observers were hoping that a lawsuit filed last year would help decide questions about who actually owns certain Twitter accounts. But with the case ending on Monday in a negotiated settlement rather than a legal decision, such hopes were dashed.
The case involved Noah Kravitz and his former employer, PhoneDog, a provider of news about mobile phones. Kravitz, who has become a recognizable media personality in the past few years for his reviews of mobile apps and his YouTube videos, initially sued PhoneDog after leaving the company in October 2010, seeking certain compensation he claimed to have rights to but had not been paid.
The company then sued him as well, for alleged theft of company property: the Twitter account, @PhoneDog_Noah, he used to communicate with up to 17,000 followers. The company’s position was that the roll of followers was akin to a client list. But, maintaining control over the account’s password, Kravitz simply changed the handle to @NoahKravitz. PhoneDog sought $340,000 (or $2.50 per follower per month), which it claimed was the value of the account over an eight-month period.
Under the settlement, Kravitz will maintain sole custody of the account. In court, his attorneys had presented documents that seemed to clearly show PhoneDog had agreed to let Kravitz continue using the account and, in fact, asked him to continue occasionally tweeting on its behalf, which he did.
No details were made public regarding the rest of the agreement.
Kravitz’s attorney, Cary Kletter of Kletter Law Firm, says the case presents a lesson, even though there was no judicial decision. “Companies and their employees who work on social media should establish very clear guidelines at the beginning of the relationship what will happen with social-media accounts upon separation from employment,” Kletter says.
But mobile technology is changing so fast that any such guidelines seem inevitably to dwell in gray areas. In a statement, Kravitz said: “When I started with PhoneDog there was no Twitter and we didn’t have a YouTube channel. In retrospect I’m sure we all wish we had been able to foresee what was coming and negotiate specific terms ahead of time. But sometimes in this industry you have to move quickly to seize opportunities.”
He added, “If anything good is to come of this, I hope it’s that other employees and employers can recognize the value of social media to companies and individuals both. Good contracts and specific work agreements are important, and the responsibility of constructing them lies with both parties.”
PhoneDog’s attorney, John Kirke of Donahue Gallagher Woods, did not respond to a request for comment. But an interested third party, John Barry, co-head of the non-compete and trade secret group at law firm Proskauer, defends the principle that a social-media account created to advance the business interests of an employer belongs to that employer.
“There aren’t a lot of cases about this,” Barry says, “but Kravitz’s job at PhoneDog was to create buzz and excitement so that his followers would go to the company’s website. To the extent social media is a means of communicating with customers and potential ones, a company is going to want to say, ‘You are doing that on our behalf.’”
But Kletter says the issue is not that clear-cut and depends in part on the role of the person using the social-media account. “If you’re an intern at CNN, and the news editor is telling you what tweets to push out, that is intellectual property of CNN. But if you are Anderson Cooper, and you are collecting and disseminating your own information, it may come into question whose account it is.”
It would have been nice, Barry observes, if there had been a court decision in the PhoneDog lawsuit, to provide litigants and attorneys a bit of guidance in such cases. “But the lesson for companies is there from the fact that the lawsuit existed at all,” he says. “Everybody is learning now from PhoneDog’s mistakes. They didn’t have a clear policy in place.”