By Eric J. Tweed
For many businesses, social media is a relatively easy and inexpensive way to reach and engage with customers. In minutes a business can be off and running in the social media world with Twitter, Facebook and other similar “free” services. Given the ease of signing up for these services, many businesses see social media as an afterthought to their day-to-day operations. Here are a few important issues to consider before your business delegates its social media presence to an employee.
Who Owns the Social Media Account?
One might think that an employer would own a social media account created by an employee on work time and for work purposes. It may not, however, be that simple.
In a recent case that eventually settled out of court, an employee of a business was tasked with managing the company’s Twitter account. The Twitter handle represented the company and the employee engaged over 17,000 followers. Unfortunately for the company, the employee soon severed the employment relationship. The employee changed the Twitter handle and password, and took with him the account and the 17,000 followers, which the company viewed as a valuable customer list.
Motions to dismiss the case were denied because, in the absence of an agreement, ownership of the account was unclear. The details of the settlement were not released, but the former employee is still using the Twitter account.
Situations like this can be avoided with clear social media use policies and/or agreements. These policies should require employees to acknowledge that any social media accounts created for work purposes are owned by the company and that use by the employee will cease if the employment relationship terminates. Additionally, polices should require that social media passwords be maintained by the company.
Consider “Work-For-Hire” Agreements for Content Creators
Along with user generated content like Twitter or Facebook, many companies also host blogs. Whether content is created in-house or by third parties, a business should consider if it is important to own the content on the blog. It is likely that the business is incurring some cost to create and maintain the blog. Owning the copyright to the blog post will ensure that the writer cannot take the work and publish it elsewhere.
To ensure a blog post is owned by the business, all non-employee contributors must sign a “work- for-hire” agreement. These agreements transfer ownership of the work to the business, giving the business all of the rights associated with ownership.
Remember that even if content is created as “work- for-hire” you may attribute the work to the creator or author while still owning all the rights. A clear agreement with the contributor is the key to establish ownership and attribution rights.
It is hard to say a lot with 140 characters. Still, consumer protection laws apply to social media just as they do any other advertisements. Generally, advertising must be truthful and not misleading, any claims must be backed by evidence, and advertisements must not be unfair to consumers.
For example, any necessary disclosures that are required on other forms of advertising are required in social media advertising as well. Additionally, disclosures must be clear and conspicuous. For instance, if someone is paid to promote your product on social media or a blog post and it is not clear that the spokesperson is paid to make certain claims, then you might consider disclosing this fact in the space available.
Social Media and Your Trademark
The purposes of a trademark are to protect consumers by making the source of a product clear and protecting a producer’s investment in its reputation and goodwill. The social media landscape is vast. As a result, preventing trademark infringement can be difficult. Moreover, enforcing trademark rights is largely up to the trademark owner. The rights associated with a trademark are only applicable if they are enforced. If they are not, the trademark owner risks the possibility of losing the rights associated with the registered mark.
Consider a situation where a disgruntled customer creates a Twitter account that could easily be mistaken as your own. In theory, Twitter has the ability to shut these accounts down, but in reality this is unlikely to happen except in the most egregious cases. Accordingly, it is best practice to regularly patrol social media for potential trademark infringement. Our attorneys are available to help your business develop social media use and enforcement business policies.