When is your Twitter account (or Facebook or other social media account) not <i>your</i> Twitter account? At what point does your work-related use of your social media account convert that account to your employer’s intellectual or other property? Noah Kravitz is being sued by his former employer, PhoneDog, over what is now, in theory, Kravitz’s personal Twitter account. An account which he says he converted to his own use with PhoneDog’s blessings, only to have them turn around and bite him in the back.
Kravitz used Twitter while he worked for PhoneDog – using the Twitter handle @PhoneDog-Noah – and when he stopped working for PhoneDog he changed his Twitter ID to @noahkravitz – but it was the same account, with the same followers – 17,000</b> followers – and PhoneDog now claims that Kravitz’s Twitter account is actually <i>their</i> intellectual property, and that a Twitter account by any other name is still theirs.
But there is way more to this story. And the best way to understand it is to view it as a timeline, in order of what happened first, then next, and then last.
Here’s how this went down, so far as we can tell from reviewing the lawsuit documents, and statements that both Kravitz and PhoneDog have made:
Kravitz worked for PhoneDog, and while in their employ, he started manning the @PhoneDog-Noah account on Twitter. During his tenure with PhoneDog, he amassed the 17,000 followers on that Twitter feed.
He resigned (PhoneDog says ‘suddenly’) in October of last year, and this is where the stories diverge.
PhoneDog claims that they asked Kravitz to give the PhoneDog-Noah Twitter account over to them but that he instead changed the account handle to @NoahKravitz.
But Kravitz claims that PhoneDog allowed him to keep the account so long as he would post about PhoneDog.
Kravitz says that PhoneDog asked that in exchange for him keeping the Twitter account, that he “tweet on their behalf from time to time and I said sure, as we were parting on good terms.”
Fast forward to July of this year, and PhoneDog has sued Kravitz over his use of the account, for, among other things, Misappropriation of Trade Secrets, Intentional Interference with Prospective Economic Advantage (i.e. he is turning off current and potential customers), Negligent Interference with Prospective Economic Advantage (ditto), and Conversion (essentially using someone else’s property as if it were your own).
Now, if they really had an agreement that Kravitz could keep the account, and if, as Kravitz asserts, they were parting on good terms, what happened between October of 2010 (when Kravitz left PhoneDog) and July of 2011 (when PhoneDog filed the lawsuit)?
Well, here’s what we know: according to Kravitz himself, prior to PhoneDog filing the lawsuit, Kravitz advised PhoneDog that he was entitled to an ongoing chunk (to the tune of 15%) of PhoneDog’s income from advertising because he is, he claims, a “vested partner”. He also demanded back pay for time when he was, he says, a video reviewer and blog author for PhoneDog’s site.
It wasn’t until Kravitz made the claims that PhoneDog filed their lawsuit over the Twitter account, which they now say is analogous to a customer list – PhoneDog’s customer list.
In fact, Kravitz says that the lawsuit is in retaliation for his claims to 15% of advertising revenue and back pay.
Says PhoneDog, “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.”
PhoneDog is seeking $340,000 in damages, a figure they arrived at by assigning a value of $2.50 per month for each ‘customer’ on the ‘customer list’ (the Twitter followers), for each month that the account has been in Kravitz’s control.
To complicate things, in the interrim, Kravitz went to a PhoneDog competitor, TechnoBuffalo.com, and started tweeting to his followers (that were, remember, acquired while he worked for PhoneDog) while working for PhoneDog’s competitor to, claims PhoneDog, “discredit PhoneDog.”
And to further complicate things, PhoneDog has rebutted Kravtiz’s claims to ongoing revenue and back pay (in what appears now to be a separate lawsuit) by saying that Kravitz was a contractor, not an employee or ‘vested partner’ – and if that is true, that muddies their claim to ownership of the Twitter account.
Now that the timeline is laid out, that brings us to the present. The lawsuit, while founded on a spat between Kravtiz and PhoneDog, presents a question that applies to myriad employer/employee relationships across the country: who owns the social media accounts that employees use on company time – particularly if they use them for company outreach?
Says intellectual property attorney Henry Cittone, “This will establish precedent in the online world, as it relates to ownership of social media accounts. We’ve actually been waiting to see such a case as many of our clients are concerned about the ownership of social media accounts vis-á-vis their branding.”
“It all hinges on why the account was opened,” adds Cittone. “If it was to communicate with PhoneDog’s customers or build up new customers or prospects, then the account was opened on behalf of PhoneDog, not Mr. Kravitz. An added complexity is that PhoneDog contends Mr. Kravitz was just a contractor in the related partnership/employment case, thus weakening their trade secrets case, unless they can show he was contracted to create the feed.”
None of this is cut-and-dried, and the court clearly believes that there are issues that are open to be adjudicated, having dismissed Kravitz’s motion to dismiss for “failure to state a claim upon which relief can be granted” – legal mumbo jumbo for “there is no there there, judge, so you should dismiss the lawsuit.” Said the Court, “PhoneDog has sufficiently described the subject matter of the trade secret with sufficient particularity and has alleged that, despite its demand that Mr. Kravitz relinquish use of the password and Account, he has refused to do so. At this stage, these allegations are sufficient to state a claim.”
Where this will go at this point is anyone’s guess, but one thing is for certain: it will be interesting, and closely watched.