Social media sites are transforming not only the daily lives of consumers, but also how companies interact with consumers. Here at Morrison Foerster, across all of our practice groups, we are seeing complex, cutting-edge legal issues arising out of social media. As with the Internet boom during the mid-to-late 1990s, social media is generating new legal questions at a far faster pace than the law’s ability to provide answers to such questions. In an effort to stay on top of these emerging issues, and to keep our clients and friends informed of new developments, Morrison Foerster publishes this blog devoted to the law and business of social media.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

sociallyaware-abajournalweb100-1

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.Aaron’s practice focuses on advising both established and emerging companies in a variety of data- and technology-intensive sectors, including software, SaaS, cloud-based technology, digital media (social media, AR/VR, gaming, streaming media, AdTech), AI, healthcare, consumer electronics, e-commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on branding and marketing, trademark licensing, and content-related transactions, as well as the intellectual property aspects of mergers, acquisitions, asset spin-offs, and private equity investments.He has represented clients such as Autodesk, Meta, OpenAI, Splunk, Konami, Kaiser Permanente, SoftBank, Visa, and Yahoo, among others.Aaron has been recognized by numerous publications for his work on market-defining technology transactions. He is currently ranked by Chambers USA for “Technology Transactions.”Aaron also serves as co-editor of Socially Aware, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics. Aaron is also a sought-after speaker on new and emerging areas of law, and is a frequent presenter and panelist at conferences and legal services programs. In addition to his active practice, Aaron regularly provides pro bono assistance to various nonprofit and charitable organizations such as Common Sense Media and the Starlight Children’s Foundation. He is a member of the board of directors of California Lawyers for the Arts.While in law school at the University of California, Berkeley, Boalt Hall School of Law, Aaron served as executive editor of the California Law Review and was elected to the Order of the Coif. Following law school, Aaron served as law clerk to the Honorable William H. Orrick and the Honorable Martin J. Jenkins, both United States District Judges for the Northern District of California.

rubin_aaron_blog_150x150.png

rubin_aaron_common_640x280.jpg

rubin_aaron_heroretina_2700x1160.jpg

rubin_aaron_mobileretina_750x1040.jpg

rubin_aaron_social_600x600.jpg

Partner

technology-industries-thumb.jpg

Our technology transactions and information technology lawyers advise on issues relating to the acquisition and commercialization of new technologies and IP assets.

Technology Transactions

Technology Transactions Lawyers

Outsourcing

Intellectual Property Patent 

Spotlight: Global-Wide (Global Market Leaders) Commercial Contracts

Spotlight: Global-Wide (Global Market Leaders) Artificial Intelligence

USA: Technology Sector (International & Cross-Border)

Recommended for Transactions

California: Recommended for Transactions

UK: England & Wales: Bronze for Transactions

Media, Technology and Telecoms: Technology Transactions

Japan: Highly Recommended for Transactions

Top Ranked (Band 1) Nationwide: Technology

Top Ranked (Band 1) California: Technology Transactions

Nationwide: Outsourcing

Top Ranked (Band 1) New York: Outsourcing

Top Ranked (Band 1) China: TMT: International Firms

Top Ranked (Band 1) in Japan: Technology, Media, Telecoms

Top Ranked (Band 1) USA: Technology Sector (International & Cross-Border)

Singapore TMT: Foreign Firms

Germany: Telecommunications

Germany: Media

London: Information Technology

Global: Outsourcing

Global: TMT

USA: Outsourcing

Asia-Pacific: TMT

Top Ranked (Band 1) Asia-Pacific Region: Technology, Media, Telecoms

Nationwide: Technology Transactions

Technology, Media & Telecoms: IT & Telecoms

China: TMT: Foreign Firms

Hong Kong: TMT

Top Ranked (Band 1) Japan: TMT: International Firms and Joint Ventures 

Aaron is the chair of our Technology Transactions Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals. Aaron’s practice focuses on advising both established and emerging companies in a variety of data– and technology–intensive sectors, including software, SaaS, cloud computing, AR/VR, AI, gaming, healthcare, consumer electronics, social media, e–commerce, other online business models, and mobile applications. He also maintains an active practice counseling companies on the intellectual property aspects of mergers, acquisitions, asset spin–offs, and private equity investments.

Aaron P. Rubin

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.Lawrence focuses his practice on technology transactions and licensing matters. His diverse experience includes advising on SaaS agreements, cross-licensing agreements, research and collaboration agreements, development agreements, and distribution agreements. He counsels a broad range of companies across the software, hardware, life sciences, biotech and FinTech spaces, as well as other entities including universities.He advises clients in connection with general corporate matters including contract negotiations, and leasing and technology placement agreements.Lawrence also serves as co-editor of <a href="https://www.sociallyawareblog.com/" target="_blank">Socially Aware</a>, the firm’s award-winning newsletter and blog devoted to the law and business of social media, and regularly publishes on various IP and technology-related topics.Prior to joining the firm, Lawrence was counsel at another major law firm. Before earning his law degree, Lawrence was a web consultant, project manager, and web developer in Portland, Oregon, where he managed and consulted on projects using industry methodologies and performed custom development and integration of content management systems.Lawrence was named a Super Lawyers “Rising Star” in 2015 and 2018–2022, and is licensed in both California and New York. Lawrence earned his J.D. from the University at Buffalo School of Law, where he was the electronic systems editor for the Buffalo Law Review and awarded the ABA-BNA Award for Excellence in the Study of Intellectual Property Law.

gallick_lawrence_blog_150x150.png

gallick_lawrence_common_640x280.jpg

gallick_lawrence_heroretina_2700x1160.jpg

gallick_lawrence_mobileretina_750x1040.jpg

gallick_lawrence_social_600x600.jpg

Of Counsel

Lawrence Gallick

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster.Anthony advises clients on general commercial and transactional matters. He regularly advises companies on the IP aspects of their M&A transactions. His clients include technology, digital media and content for television and music, financial services, and communications companies with diverse intellectual property assets and issues.His practice focuses on the legal aspects of developing, licensing, and commercializing technology and intellectual property, as well as negotiating general commercial contracts, including outsourcing transactions, as well as content and data licenses. He regularly assists clients with legal issues relating to licensing and commercialization of digital media and content, digital content that is distributed over the Internet or streamed, mobile applications and social media, as well as the licensing of recorded music for distribution via digital platforms. Anthony is also experienced with issues relating to open-source software, software development, artificial intelligence and machine learning, cloud-based technology, and protection of proprietary information.Anthony has extensive experience working on matters involving disruptive technologies, such as blockchain. He has helped fintech clients with general intellectual property issues in connection with terms of service for online financial products and services.Anthony is an integral part of the outside pro bono legal team for nonprofit organizations based in New York, including advising clients on legal issues regarding entertainment, social media, privacy rights, and the negotiation of outsourcing and service agreements. Anthony received his J.D. from the University of Michigan Law School in 2009. He received his B.S. from Cornell University in 2004.

ramirez_anthony_blog_150x150.png

ramirez_anthony_common_640x280.jpg

ramirez_anthony_heroretina_2700x1160.jpg

ramirez_anthony_mobileretina_750x1040.jpg

ramirez_anthony_social_600x600.jpg

Anthony Ramirez is a partner in the Technology Transactions Group in the New York office of Morrison Foerster. He advises clients on general commercial and transactional matters. His clients include technology, media, and communications companies with considerable intellectual property assets. His practice focuses on the legal aspects of licensing and commercializing technology and intellectual property, as well as negotiating general commercial contracts. He also regularly assists clients with legal issues relating to mobile applications and social media.

Anthony M. Ramirez

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

Welcome to Socially Aware

240920-socially-aware-header.jpg

Welcome to Socially Aware

240920-socially-aware-header

Socially Aware is devoted to the law and business of social media, proactively addressing emerging issues and keeping our clients informed of new developments. We cover fields such as artificial intelligence, privacy and data security, Section 230, intellectual property, and much more.

News and Announcements

Blog - Terms of Use

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides a data-driven look at the Federal Circuit.

Federal Circuitry

Brings together legal insights and in-depth analyses on trends and complex issues shaping the global technology industry.

MoFo Tech

Mofo Tech

Equips our clients with the most up-to-date and relevant information on employment and labor law issues.

Employment Law Commentary

In-depth analysis of developments and trends impacting government contracting.

Government Contracts Insight

Government Contracts Insights

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

MoFo’s Socially Aware blog provides timely updates and analysis of the many complex and cutting-edge legal and business issues arising out of social media.

Socially Aware

  Linkedin

MoFo LinkedIN

Socially Aware Blog - RSS

Stay Connected

Never miss a post from Socially Aware. Enter your email below to stay up-to-date.

Subscribe

The Law and Business of Social Media

Morrison Foerster - Footer

Blogs -  Home Button

Home

Blog - Topics

Web Scraping

Advertising

Antitrust

Arbitration

Artificial Intelligence

Asia

Autonomous Vehicles

Bankruptcy

Big Data

Blockchain

Class Actions

Cloud Computing

Compliance

Contracts

COPPA

Copyright

Crowdsourcing

Cyberbullying

Cybersecurity

Data Security

Defamation

Digital Content

Disappearing Content

Discovery

DMCA

E-Commerce

E-Discovery

E-Personation

Electronic Contracts

Employment Law

Endorsement Guides

Ephemeral Messaging

Ethics

European Union

Event

Fair Use

FDA Regulations

Financial Institutions

First Amendment

Fraud

Free Speech

GDPR

Hacking

Influencer Marketing

Infographic

Internet of Things

Investment Management Law

JOBS Act

Labor Law

Litigation

Live streaming

Marketing

Mobile

Online Contracts

Online Endorsements

Online Promotions

Online Reviews

Patent

Privacy

Product Liability

Protected Speech

Right of Publicity

Right To Be Forgotten

Section 230 Safe Harbor

Securities Law

Social Media Policy

Statistics

Status Updates

Stored Communications Act

Supreme Court

Terms of Use

Trademark

UK High Court

User-Generated Content

Wearable Computers

Topics

Blog - Editors

Editors

Blog - About

About

Blog - Subscribe

More

Lawrence W. Gallick

The Bipartisan TAKE IT DOWN Act Is Now Federal Law

Social Links: AI, Age-Gating, and the COPPA Cabana

Social Links: Statehouse v. Smartphone

Federal Court Enjoins California Teen Privacy Law . . . Again

All Your Sale Are Belong to Us - Mitigating IP and Payments Risk in In-Game Economies (Part II – User-Generated Content and In-Game Payment Models)

LinkedIN

Here at Socially Aware, we <a href="/topics/social-links-social-media-account-ownership-once-again-in-the-spotlight" target="_self">have been discussing</a> issues around ownership of social media accounts since the beginning of social media. Just last July, we reported on how a bankruptcy court in Florida forced the founder and former CEO of Bang Energy to delete disparaging comments from his Instagram account and ultimately <a href="https://caselaw.findlaw.com/court/us-ban-crt-s-d-flo-for-lau-div/2289548.html" target="_blank">ruled</a> that the company owned the Instagram, TikTok, and X (formerly Twitter) accounts at issue. Prior to the Bang case, a number of other cases addressed these issues, with varying results, which is unsurprising given the varying facts around creation and use of social media accounts by businesses and business professionals. See some of our other <a href="/topics/which-side-are-you-on-employers-and-employees-battle-over-ownership-of-social-media-accounts" target="_self">coverage of social media ownership litigation</a>.Today, we are looking at a recent Second Circuit case, <a href="https://law.justia.com/cases/federal/appellate-courts/ca2/21-2535/21-2535-2024-01-17.html" target="_blank" dir="ltr">JLM Couture, Inc. v. Hayley Paige Gutman</a>, where a fashion designer and her former employer wrestled over ownership of Instagram and Pinterest accounts that the fashion designer created and used for both business and personal brand purposes.BackgroundIn July 2011, JLM Couture, Inc. engaged Hayley Paige Gutman to design a line of bridal wear. The employment contract included several restrictions on Gutman, including that: (a) Gutman would not use her name in commerce once JLM registered it as a trademark; (b) certain broad categories of Gutman’s work would be JLM’s property as works for hire; and (c) she would abide by certain noncompete, nonsolicit, and nondisclosure obligations during the term of the contract and for five years thereafter. JLM and Gutman agreed to extend the contract through August 1, 2022 but, following further negotiations in 2019, failed to agree on any further extensions. Following the breakdown in negotiations, Gutman changed the passwords to her Instagram and Pinterest accounts, refused to give JLM access to the accounts, and notified JLM that she would no longer post JLM-related content to the accounts. JLM then sued Gutman for, among other things, breach of contract, conversion, and trespass to chattels based on Gutman’s taking control of the accounts.Gutman personally created both accounts in 2011 and 2012, using her own name as a handle and with her personal contact information. JLM did not require Gutman to open the accounts, although JLM argued that she had created them within the scope of her employment. The district court agreed that Gutman created the accounts to showcase JLM’s products, which she featured in her earliest posts, interspersed with posts of a more personal nature. Over time, the accounts became more JLM-focused, featuring product pictures and JLM event information. In addition, the accounts’ messaging features were used to respond to sales inquiries. Notably, other JLM employees had access to manage the accounts.Prior to this appeal, the case had already gone through a series of decisions and appeals, resulting in a preliminary injunction that, among other things, gave JLM control of the accounts and enjoined Gutman from competing with JLM until the end of the contract term in 2022. When Gutman posted teasers to the Instagram account about her new bridal brand, the district court held her in contempt, ordered her not to post any “similar content,” and assessed a $5,000/day penalty while she remained out of compliance. In this appeal, the Second Circuit reviewed that contempt order.Second Circuit DecisionGutman argued, and the Second Circuit agreed, that the district court was in error to give JLM control of the accounts. The district court had used a six-factor test to determine the proper owner of a social media account, as follows:<ol><li dir="ltr">whether the account handle reflects the business or entity name;</li><li dir="ltr">how the account describes itself;</li><li dir="ltr">whether the account was promoted on the entity’s 	advertisements or publicity materials;</li><li dir="ltr">whether the account includes links to other internet platforms of the entity;</li><li dir="ltr">for what purpose the account was used, including whether it was tied to promotional or mission-oriented activities of the entity; and</li><li dir="ltr">whether employees or members of the entity had access to the account and participated in its management.</li></ol>Based on this analysis, the district court determined that JLM had a “clear likelihood” of success on demonstrating that it owned the accounts or, even if Gutman had title to the accounts, that JLM had a “vastly superior” right to control the accounts.The Second Circuit concluded that the district court’s use of the six-factor test was an error. Despite social media being a relatively new technology in the eyes of the law, the Second Circuit determined that there was no reason here to deviate from traditional principles of property law. The Second Circuit noted that the district court’s failure to start its analysis by looking at who owned the accounts at their creation was one problematic result of this error. The court went all the way back to a case that most law students read in their first-year property law class, <a href="https://history.nycourts.gov/case/pierson-v-post/" target="_blank" dir="ltr">Pierson v. Post</a> (a case from 1805 deciding the ownership of a fox), among other venerable precedents, to spell out the principle that the proper ownership analysis consists of determining (a) who owned the property originally; and (b) whether those rights were later transferred to someone else.The Second Circuit then went on to hold that Gutman clearly owned the accounts at their creation if she originally created them using her personal information and for her personal use (a factual issue for the district court to decide on remand). If Gutman did own the accounts at their creation, the next question is whether JLM later acquired the accounts by operation of the contract. The Second Circuit makes clear that this question does not turn on whether Gutman assigned specific content to JLM under the contract, or whether others were permitted to assist in managing the accounts. In a rebuke to the district court, the Second Circuit said:Determining ownership by reference to such principles would promote transfer by surprise and complicate contractual arrangements under which an account owner might agree to advertise another’s goods on his or her platform.The contract allocated ownership of the following materials to JLM as works for hire: “designs, drawings, notes, patterns, sketches, prototypes, samples, improvements to existing works, and any other works conceived of or developed by [Gutman] in connection with her employment with [JLM] involving bridal clothing, bridal accessories and related bridal or wedding items.” (Emphasis added.) The district court interpreted the accounts to be “other works” under this language, and therefore held that Gutman had transferred ownership of the accounts to JLM.The Second Circuit rejected the district court’s analysis based on ejusdem generis, a general principle of contract construction that requires that general terms at the end of a list include only objects similar to the specific items in the list. The Second Circuit noted that the listed items were all creative materials that Gutman might produce in her work as a designer, consisting primarily of copyrightable subject matter. A social media account, in contrast, does not share any of those attributes. Therefore, the Second Circuit instructed the district court to reassess the ownership question using the proper ownership test and the foregoing principles, with the strong inference that it might then conclude that Gutman is the legal owner of the accounts.ConclusionIn Gutman, the Second Circuit endorsed a test of social media account ownership that is perhaps not as simple as it seems. In broad terms, the Gutman analysis requires us to look at who owned the account when it was created, and then see if it was later transferred or assigned to someone else. Given the court’s reference to determination of initial ownership by the circumstances of its creation, including whether it was created for personal use, this analysis is inherently fact-driven and will likely not have a clean answer in a world where influencers tend to leverage their personal lives for business gains.Notably, the Second Circuit’s approach implicitly accepts that a social media account is property in the first instance, a proposition that prior courts have not always been sure about, even though they generally accept the principle as a matter of convenience. For example, in <a href="https://caselaw.findlaw.com/court/us-ban-crt-s-d-flo-for-lau-div/2289548.html">In re: Vital Pharmaceutical</a> (the Florida bankruptcy case mentioned above), the bankruptcy court noted:<blockquote dir="ltr">Describing a user’s interest in a social media account is difficult. With respect to some sites, such as TikTok and Twitter, a social media user’s right to use the platform is defined as a “license.” But, in some cases, such as Instagram, that right is not defined at all. For ease of reference, the Court will refer to “ownership of the rights to social media accounts” to encompass whatever rights a user has—whether it be a license or otherwise—to access and use a social media account.</blockquote>Despite these issues, Gutman may enable other courts to streamline their analysis of these issues. While it is not necessarily easy to determine whether an account was owned by an employee or a company at creation, knowing that a court will ultimately rule on ownership of the account according to traditional principles of property law should enable both employees and companies to enter into employment contracts that make ownership of social media accounts more predictable, by, for example, expressly assigning social media accounts used for any company business to the company (note that it would be fairly simple for a company to include language in its employment contract eliminating the ejusdem generis issue described above), implementing strict procedures for creation of such social media accounts, and/or requiring the employee to promise to use company-related social media accounts only in certain ways.

Lawrence Gallick is of counsel in the firm’s Austin office and a member of the Technology Transactions Group.

Aaron is the chair of the firm’s Technology Transactions Group and co-chair of the Interactive + Digital Media Group. He advises clients on a wide range of complex transactions involving intellectual property and technology, including structuring and negotiating strategic licensing, development, collaboration, procurement, and distribution deals.

Aaron Rubin

Owned: Second Circuit Holds That Traditional Principles of Property Law Apply to Social Media Accounts