Like My Facebook Page? You’re Mine. #OWNED

by · December 13, 20131 comment

I imagine you’d ruffle a few feathers among your Twitter audience if you were to tweet that you “own” them, but the fact is that a platform—access to an audience—has value, whether or not the antiquated laws relating to property can or should apply to social media.

“You don’t ‘own’ any audience,” as Jeffrey K. Rohrs, author of the recent book Audience, observed in a recent interview for the MarketingProfs podcast. “In this era of permission marketing, no audience is owned.”

True, and yet even short-lived access to a valuable constituency does have monetary value. (In fact, there’s a formula that purports to calculate how much money Twitter “owes you” based on your following.)

As is often true, the law is scrambling to catch up with technology. Stacey Mattocks, a fan who created a popular Facebook page for the show “The Game,” back when it was on the CW network, has sued BET for having Facebook delete her page and transfer the 6.2 million “Likes” to BET’s new official Facebook page for the show.

LawMattocks alleges that the network’s actions constituted conversion (stealing), breach of contract, and tortious interference, among other claims.

She also alleges “copyright infringement” on the basis that BET took parts of the Facebook page she created and used them on its new “official” page. I find it difficult to imagine how that will fly, when the original images are most likely owned by the network, but that issue is much less interesting than the question of who owns Facebook Likes.

The specific facts and the intent of the parties is in dispute, but it’s clear that, at least initially, the relationship between Mattocks and BET was positive, and they supported her as a brand advocate and as a fan of the show. The relationship soured when BET wanted to purchase the page (as well as a related Twitter account) from Mattocks for $15,000, and she countered asking for $1.2 million.

When the parties failed to agree upon a purchase price, Mattocks changed BET’s access to administer the page in Facebook, demoting them to “moderator.” This in turn prompted the network to request that Facebook shut Mattocks’s page down and transfer the Likes to its newly created page, ultimately escalating the dispute until Mattocks filed suit.

BET maintains that any claim for “conversion,” which is the wrongful use of someone else’s property, cannot succeed, because Facebook “Likes” are not “property” in the legal sense of the word.

The reality is, however, that the law does recognize certain temporary interests as property. In business acquisitions, a value is assigned to “goodwill” associated with the business being acquired, even though consumer sentiment could change, and the company’s audience could turn against it.

Here, Mattocks had temporary access to a valuable audience through social media, and that access is valuable, even if it’s fleeting. There is no binding precedent (prior decisions the court must follow) because the question is new, at least in the context of Facebook Likes.

One of the most interesting cases that looked to address a similar issue head on was Phonedog vs. Kravitz, in which a business sued a former employee over Twitter followers. While working for Phonedog, Noah Kravitz had amassed a Twitter following of 17,000+, tweeting as “Phonedog_Noah.”

When Kravitz left the company, he changed his Twitter handle, but kept the followers. The company sued, claiming damages on the basis that those followers—which they valued at $2.50 each—belonged to Phonedog. The case ultimately settled, so businesses are left without much guidance in this area.

The larger question in my mind is who owned any purported interest: the particulars of any agreement between BET and Mattocks aren’t clear from the news reports.

Until we have more definitive case law or statutes on the books that address this area of law, here are some tips for clarifying ownership of social media feeds from the start:

Get it in writing.

Decide at the time of hiring who will own which social media feeds, and be as specific as possible. Reduce your agreement to a written contract, signed by the company and the employee.

You can also ask existing employees to sign a contract now. Continued employment should be enough to make the contract binding, but of course check with an attorney in your jurisdiction.

Use a company email to set up the account.

If your brand wants to own and control the social media presence, make sure you use a company email to create the accounts on Facebook, Twitter, and other sites. If an individual employee uses his or her personal email address to set up the account, you’ll have a difficult time gaining access to your social profiles if they leave the company. This benefits employees as well, who will be better able to maintain separation between their professional and personal profiles.

Write profiles that make it clear who owns the account.

If a Twitter account is the company’s, the profile should say that, and link to the company’s website, as opposed to the personal blog of the person who posts on the brand’s behalf.

Using a logo instead of a person’s photo drives this point home, but also dehumanizes your social media posts, as Mark Schaefer points out, so if you’d prefer to use a person’s picture as your avatar, consider adding a badge or icon.

Empowering employees and fans to engage in social media for your brand can improve online sentiment and supercharge your word of mouth marketing, but be clear about who owns the audience you’re building.

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About Kerry O'Shea Gorgone

Kerry O'Shea Gorgone

Kerry O’Shea Gorgone, JD/MBA, is a writer, speaker, lawyer and educator. She hosts the Marketing Smarts podcast for MarketingProfs, and teaches New Media Marketing and Marketing Campaign Development in the Internet Marketing Master of Science Program at Full Sail University in Winter Park Florida. Follow her on Twitter: @KerryGorgone

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