We have already discussed what a social media account is, the various parts of it, and the steps that can be taken to secure ownership of a social media account that a business creates in the prior articles in this series. Now it is time to talk about the steps that should be taken and the agreements that should be drafted to document the transfer of a social media account.
Every single time that ownership of a social media account is transferred from one party to another, a written agreement reflecting the transfer needs to be created and signed by all of the involved parties. Simply having a written agreement will help avoid arguments and resolve disputes without requiring the involvement of lawyers or judges.
As stated in the articles that proceed this, a social media account is not considered to be a single standalone item but a collection of items. While the aspects of a specific social media account can vary, they often include: the account name, the username or logon credentials, the ability to access to the account, the content posted to the account, and the followers of the account.
When Transferring Social Media Accounts, Earlier = Better
There are two main points in time where an agreement to transfer social media is entered into: (i) before the social media account is created; and (ii) after the social media account is created.
If the social media account is being created as part of someone’s job, it is recommended that an agreement be entered into prior to the employee being hired; if that is not possible, then prior to the social account being created. There is also a third point in time that these agreements are entered into and that is after a dispute over the account; these agreements are usually the result of extended negotiations (or litigation) and tend to be longer and more costly. Hopefully by reading this article, you can enter into the necessary agreements now and avoid any disputes in the future.
Language regarding the ownership of a social media account can be found in offer letters and employment agreement, confidentiality, and non-disclosure agreements, as well as in separate specifically drafted social media ownership agreements. It really does not matter the title of the agreement as long as it clearly explains identifies the items being transferred, explains the details of the transfer, and is signed by the relevant parties.
Identify Involved Parties and Items
Now that you know that your business needs an agreement, here are some of the various items it needs to talk about. First, it is very important that you properly identify all of the involved parties (the person transferring the social media account, the person transferring the social media account, and the name and location of the social media account), the items being transferred, and the items not being transferred. Numerous issues have arisen due to people failing to properly identify the people and the social media account(s) involved.
It is equally important to be very clear as to what is being transferred and what is not. It is recommended that one go into too much detail over what is being transferred rather than going into too little; failing to go into enough detail may result in your business later relying on a court to make the decision as to what was supposed to be included.
If less than the entire social media account is transferred, language needs to be included in the agreement regarding how the various parts of the account (e.g., profile, access information, content, and followers) and the items posted on it (e.g., videos and photos) are to be separated out and transferred. Certain items can be easily separated out or removed from the social media account (e.g., content) while other items cannot be transferred at all and are attached to the account (e.g., followers).
Outline All Obligations
The agreement should also clearly indicate what each of the parties are required to do related to the transfer of the social media account (and afterwards). Unfortunately, signing the agreement does not make the social media account instantly transfer. Most social media sites require that you go through a process to transfer the social media account; it may simply be changing the email address (or control of such email address) associated with the account or it may be more complex. We recommend including langauge within the agreement that requires the person transferring the account to provide assistances in the event that there are any issues transferring the social media account and imposes penalties if they fail to provide the required assistance.
Social Media Experience Wanted
It is important that someone familiar with the type of social media account being transferred be involved in the drafting of the transfer agreement. Having someone familiar with the type of social media account and its various aspects (e.g. how the account works) will help avoid any items being incorrectly handled or forgotten.
Past social media disputes have shown that simply obtaining the logon credentials for a social media account is not sufficient to show ownership; when possible, the party acquiring the social media account should try to obtain the original email address associated with the social media account. If this is not possible, language should be added to the agreement requiring the seller to forward any emails received related to such social media account and to provide assistance with changing the email address associated with the social media account.
Employees Are Not Excluded
If the social media account is created as part of someone’s job, it is important to remember that the work-for-hire doctrine only applies to copyrightable items. As such, it is recommended that employers take the extra step of securing ownership of all the intellectual property created by its employees, whether such items are posted on the social media account or not. This can be accomplished by including langauge in the social media transfer agreement confirming that the employees’ work product is a work made for hire to the extent the work-made-for-hire doctrine applies and including separate intellectual property assignment provisions to cover any work product that is not subject to the doctrine.
While the items above are not an exhaustive list of those that should be included, they reflect the most important items needed to property effectuate a transfer of a social media account.
lease read the other articles in this series available at: Who Owns Your Business’ Social Media Accounts?, When to Restrict Access to Your Businesses’ Social Media Accounts, and How to Secure Ownership of your Businesses’ Social Media Accounts.
Should you have any questions about the process of restricting access to your business’ social media accounts, securing ownership of your business’ social media accounts, or how to properly transfer (and document the transfer of) a social media account, or would like to schedule a free initial consultation, please contact Navigant Law Group, LLC at (847) 253-8800 or contact us online.
Navigant Law Group, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Litigation, and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, and Guardianship.
This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.