Seriously, is this a real question? Isn’t this like asking who owns rights to your friends? Or … who owns rights to Grateful Dead fans? And doesn’t the very question present its own obvious answer? I mean, isn’t it a bizarre question? How can you “own” your fans?
Bizarre, perhaps, but data companies own all sorts of lists of people, so isn’t this just the same thing? To be clear, data companies never really argue that competitors cannot make their own competing lists and sublists of Democratic voters or whatever. The companies would just argue that others cannot copy their lists of such people.
Or is it more like last year’s Craigslist fight with Padmapper over Craigslist’s claimed exclusive rights to use Craigslist’s apartment listings: Can anyone “own” apartment listings? See my previous discussion of this case, here.
Or is it more like the fight over baseball statistics: Can anyone “own” rights to how many RBIs I have when batting left-handed with 2 outs during night games against West Coast teams? That was actually a real case, which ArsTechnica wrote about here. EA Sports basically gave up its claims on rights to use NCAA players in its sports video games, choosing instead not to “go to bat” on a fight questioning a long-standing practice banning amateur student athletes from profiting from their status or fame. This ban prohibited the use of player identities in EA’s popular NCAA football video game. While EA did not use the players’ names, it did use jersey numbers, positions, physical likenesses and attributes many of which were strikingly similar to the real players. When faced with lawsuits from former college athletes seeking payment from the use of their likenesses in a game, the NCAA withdrew its license to EA, and EA settled with the former student athletes and discontinued the game.
Back to my original question about Twitter: Maybe the question itself is the wrong question. Maybe the question should be something different, like: Who owns the Twitter handle, as distinct from the followers? Technically, noone really owns the followers, which (if it were possible) would be kind of like me claiming to own you because you read my blog. But certainly someone owns the identity of a handle. It may be a property right under contract with Twitter – see https://twitter.com/tos and https://support.twitter.com/groups/56-policies-violations – or it may be protected by copyright the same as a comic book character like Superman. It may even be protected by trademark. In any event, the followers go along with the handle the same (I suppose) as the goodwill associated with any brand. But still, and to be clear, noone really owns the followers.
In an interview published with Forbes, Renee Jackson speaks of employer disputes with former employees involving rights to successful Twitter and other social media accounts. Jackson points out the following factors in evaluating these cases:
who set up the accounts and directed the content, when the accounts were set up (during or before employment), who had access to the accounts and passwords, whether and how the handle or account was associated with the employer’s name or brand, and the value of the followers, fans, or connections.
In a story about recent New York Times layoffs, Paid Content discussed ownership claims of former Times editor Jim Roberts to his Twitter account under the handle “@nytjim”. Roberts apparently tweeted at the time that “my feed is my own”, although Paid Content also quoted Times spokespeople as saying that they expected Roberts to change the handle, particularly because of the “nyt” included in the handle. Paid Content then quotes Venkat Balasubramani saying:
The account does not fit into any of the established buckets of property. (It’s not totally a brand, it’s not purely content. It’s a mix of everything.) Often the account is a mix of personal and business. In this case the account handle incorporates the employer’s mark, so this is something the Times would point to in the event of a dispute. They would also argue that they helped promote the mark and thus should get the benefit of the following.
On the other hand, the departing employees would argue that they really added value by the dint of their efforts and the branding in the account name is something that is easily changed (and one that departing employees would likely change). All of these highlight the benefit of spelling things out clearly in an agreement.
Interestingly, a spokesperson for the Times’ also stated that “the followers are [Roberts’] and will choose to continue to follow him … or not.” Well there you have it, that clears everything up!
No, not really, because it still avoids answering this question: What if you did in fact “own” a Twitter handle under copyright, what would that in fact get under copyright law? Well, first and foremost, you get anything that goes along with copyright. You get derivative works. You get reproduction rights. You get goodwill. Under Section 106 of the US Copyright Act, the copyright owner gets exclusive rights to these things and more, including exclusive distribution rights. But none of that means that you “own” the followers.
Can someone else create a competing Twitter handle and go after the same audience? Sure, why not? Well, that is, unless that person is restricted by a contract of some kind, such as a noncompete. Or unless the competing Twitter handle infringes someone’s existing rights under copyright or under contract. The competing Twitter handle might, for example, violate Twitter’s terms of service to create something that causes confusion in the marketplace. In fact, Twitter’s “Twitter Rules” state, “We reserve the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames. Accounts using business names and/or logos to mislead others may be permanently suspended.”
And as noted above, it might also infringe trademark rights. A brand can be trademarked as much as an individual character can be copyright-protected.
But … who owns the trademark? (All of this does seem to go round and round.) If the brand is built under an employment arrangement, then typically the employer would the own the by default. But if not, then really you’re looking at the same claims to copyright and trademark ownership that the New York Times might or might not pursue against @NYTJim … I mean Jim Roberts.
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