Social media accounts are important commercial assets because they reach a loyal consumer base committed to the brand, frequently with low, if any, associated marketing cost. The ownership of these accounts has become fodder for litigation when business relationships break down. Whether in the context of employer/employee, franchisor/franchisee or influencer/brand relationships, who owns and controls the social media accounts and associated goodwill sometimes comes into dispute.
This article provides guidance on the standards courts apply in determining ownership rights over social media accounts, as well as best practices to head off such disputes before they occur.
Ownership of Social Media Accounts Is a Matter of State Law
It is helpful at the outset to understand what is at issue in disputes over ownership of social media accounts. When courts adjudicate ownership of social media accounts, they are generally referring to a user's right "to access and use a social media account." In re Vital Pharm., 652 B.R. 392, 396 (Bankr. S.D. Fla. 2023). This may be a distinct analysis from rights in the content posted on the account. See JLM Couture v. Gutman, 91 F.4th 91, 103 (2d Cir. 2024) ("[T]he fact that Gutman transferred some or all of her rights in particular content posted on the Disputed Accounts does not by itself support an inference that she transferred ownership of the Disputed Accounts themselves.").
Among other things, access to and use of a social media account provides a direct conduit to its followers (i.e., to consumers), as well as an ability to monetize that access. For instance, in a recent high-profile dispute between bridal designer and influencer Hayley Paige Gutman and her former employer JLM Couture Inc., the disputed "Miss Hayley Paige" Instagram account had over 1 million followers, and a single post on the account was, by one expert's appraisal, worth nearly $30,000. SeeJLM Couture v. Gutman, 24 F.4th 785, 789 (2d Cir. 2022). Like other valuable assets of a business that may serve as manifestations of its goodwill, such as customer lists, ownership of social media accounts is determined by state law. SeeIn re Vital Pharm., 652 B.R. at 406 (citing In re CTLI,528 B.R. 359, 366 (Bankr. S.D. Tex. 2015)); JLM Couture, 91 F.4th at 104.
In the litigation context, disputes over social media account ownership often give rise to state law claims, such as conversion. Because these are state law claims, it is important to determine which state's...
