Cyberspace Headline Intellectual Property Trade Secrets

Who Owns A Tweet And How Much Is A Follower Worth?

How much money is a Twitter follower worth, what about the value of an individual Tweet, and who actually owns a Twitter account?  Those are a few questions that may be answered if a lawsuit that was filed on July 15, 2011 in the United States District Court Northern District of California ends up going to trial.

The lawsuit was brought by a company named PhoneDog against its former employee, Noah Kravitz for the value of Kravitz’s Twitter followers.  Kravitz left PhoneDog in October 2011 after serving as a product reviewer and video blogger since April 2006.  While working at PhoneDog, Kravitz tweeted under the handle @Phonedog_Noah and built up a large list of followers.  After leaving the company, Kravitz changed his handle to @NoahKravitz, but was able to transfer all of his former followers to his new account.  PhoneDog wants $2.50 per @NoahKravitz follower, multiplied by eight (the number of months between when Kravitz left PhoneDog up until PhoneDog filed the lawsuit against him), which comes out to roughly $340,000.  PhoneDog alleges that it owns the Twitter account that Kravitz has been using and that the compilation of followers and the password used to access the account are trade secrets.

While it is unknown whether there were any discussions between Kravitz and his former employer about Kravitz possibly changing his Twitter handle at some point post-termination of employment, Kravitz has stated that he came to an agreement with PhoneDog whereby he could keep his account and all of its followers in exchange for continuing to occasionally tweet on the company’s behalf.  In fact, it appears that PhoneDog may have asked Kravitz to make specific posts from his account post-employment.

PhoneDog recently made the following statement to the New York Times,

“The costs and resources invested by PhoneDog Media into growing its followers, fans and general brand awareness through social media are substantial and are considered property of PhoneDog Media L.L.C. We intend to aggressively protect our customer lists and confidential information, intellectual property, trademark and brands.”

On August 4, 2011, Kravitz filed his first motion to dismiss the Complaint filed by PhoneDog based on lack of jurisdiction and failure to state a claim.  Kravitz submitted a declaration in support of his motion, which in part states that he was the person who initially set up the Twitter account and created its password, he was the only person to utilize and maintain the account, and that he always used the account to create and disseminate information regarding his personal and professional life.  What I believe may be most important in this case is that Kravitz claims PhoneDog did not have any policy that required him to return the account after his separation from employment.

On November 8, 2011, the Chief United States Magistrate Judge denied Kravitz’s motion to dismiss for lack of subject matter jurisdiction, denied his request to dismiss PhoneDog’s misappropriation of trade secrets claim, and denied his request to dismiss PhoneDog’s conversion claim.  But the Judge granted the motion to dismiss PhoneDog’s claims for intentional interference with prospective economic advantage and negligent interference with prospective economic advantage with leave to amend.

PhoneDog filed its amended complaint on November 29, 2011, Kravitz filed his motion to dismiss the first amended complaint, and a hearing on that motion to dismiss has been set for January 26, 2011.

My thoughts are that if PhoneDog actually did not have a stated policy that required employees to return their social media accounts to PhoneDog after their separation from employment and there was no agreement between PhoneDog and Kravitz whereby Kravitz agreed to relinquish the account post-termination of employment, then Kravitz should be found to be owner of the Twitter account.  This is especially true if he created the account, was the only person who had the account’s password, and tweeted personal messages from the account.  I also find it hard to believe that the account’s list of followers can be considered to be a customer list containing confidential information.  The public has free access to a Twitter account’s followers.  Follower lists are not confidential.  Twitter users can opt to pick who is able to follow them, but most users allow anyone to follow their updates.  Thus, these lists cannot be considered customer lists; the lists are not generated by the Twitter account owner, but are modified constantly depending on whether third parties wish to follow the account.  The power is entirely in the third party.

If you have any cyberspace, internet, social media related matters, please feel free to contact me.