Who Owns Your Twitter Followers?
June 10, 2014
Because many brands jumped on social platforms with no real sense of "rules of the road," we are slowly but surely entering an era where Twitter and Instagram followers, and even Facebook "likes" are becoming part of quasi "custody cases."
Who owns these fan bases – personalities and shows or the stations they work for?
This is a major issue for many broadcasters for obvious reasons. When a DJ or show leaves a station and goes across the street – a common occurrence in radio – contracts may have a "no compete" clause, but what about the ownership rights of social media fans and followers?
The management point of view is social accounts that have been grown and nurtured by their on-air talent are in fact station assets. On the other side, talent in many cases worked hard to build these accounts and may have a desire to take them along wherever they land next.
The truth is that "followers" and "likes" on social platforms are valuable business assets.
I asked Ellyn to speak specifically to the radio industry as our issues are different than others. We have talent using individual accounts every day to grow their social brands, but oftentimes, the station isn't included in this social activity.
And while some companies have started to confront this issue internally with new hires, we know there are many personalities who created social accounts 6 or 7 years ago and are using them extremely well.
Lori Lewis: What are your recommendations for employers and the employees who did not confront this issue at the start of employment?
Ellyn Angelotti: No clarity causes confusion. Start the ownership conversation now. Perhaps it starts with developing mutually agreed upon terms. That includes, the amount of time the employer expects employee to spend on the station's social accounts vs. their own "station-themed" accounts they set up.
LL: So if a talent is using the station's legacy and reputation to build up their own social following, who owns that social audience?
EA: It depends on what the contract states. Many times, if a contract reads that the employer owns any digital media created on the station's behalf, digital could mean social media, too.
There are a few things the courts consider if there is no contract, or the contract is vague:
Who created the account?
If the talent did - did the station ask them to create the account?
Or did the talent do it without permission?
Did creating their own account(s) violate any rules?
Did the talent bring the social account(s) to the job?
LL: What would be your most logical and persuasive argument to talent that does not want to tweet or post on behalf of the brand?
EA: You should want to be strategic as a team and collaborate socially with your station. When we help the "mothership," as you call it, it benefits you as an employee and exposes the brand that hires you. Why wouldn't you want to put the station first? Or are you just using social media for your own personal gain?
LL: Personal and professional social media accounts can be blurry. How does the law differentiate this – or is it too much of a grey area?
EA: The law doesn't provide too much guidance regarding personal and professional accounts except that if the content is clearly personal, meaning there's no interaction with fans, and no mention of station, ever, it may not be such a blurred line.
So few people have pursued litigation over this due to the overwhelming costs – so we haven't been able to really see what the law will say. We haven't had enough cases yet to clearly answer this.
LL: If there is a dispute over who owns the social media accounts, how can ownership be determined?
EA: There's the costly way - arbitration – where the two parties turn it over to attorneys and agree to an answer. But a more reasonable way is to negotiate a resolution.
This means sit together and craft an agreement. For example, the talent may decide they are willing to sell the Twitter account by putting a price on the amount of followers and the station agrees to pay that amount in return for the Twitter account if the talent ever leaves or is terminated.
That's just one way of looking at it. There are ways to be creative and confront this issue now. But if there's never been a conversation about this – it's time to start.
LL: Knowing that you may get fired over social media behavior, what's your best legal advice to anyone using any of these platforms?
EA: The First Amendment right does not guarantee you the right to speak without consequence from your employer. If you're not representing your employer the way they expect, whether it's in person or socially - there are consequences to our actions. If you clearly acted inappropriately, the first amendment does not protect you from being stupid.
You can read more from Ellyn as she offers actual tips in her latest piece, "Who owns your Twitter followers?"
But as she has noted in our conversation, legal issues regarding ownership of these assets are still in their infancy as it pertains to talent and stations. But what is clear is that the conversation needs to start now. Work together on a mutual agreement between management and talent before providing policies. We need to address the ownership issue and use of business-related social media accounts – but we also need do it as cohesively as possible.
Reach out to me anytime on Twitter @lorilewis.
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