Christopher A. Moore
39 Campbell L. Rev. 493 (2017)
Renowned ESPN NFL reporter Adam Schefter has nearly 6 million Twitter followers.1 Schefter has certainly worked hard to cultivate such a large following. He has spent his entire professional career earning the trust of valuable sources and works tirelessly to exchange information with NFL insiders who provide the substance of his reports.2 The preeminent NFL reporter frequently communicates on two phones at once and rarely, if ever, takes vacation.3 Yet, it is a near-certainty that Schefter would have far fewer followers without the ESPN name in his biography. Other significant NFL reporters such as FOX’s Jay Glazer and Sports Illustrated’s Peter King, for example, have 1.09 million4 and 1.82 million5 followers, respectively.
Now, suppose Schefter leaves ESPN and signs with a competing news outlet when his contract expires. Who retains access to those followers?6 Both ESPN and Schefter have substantial interests in the account. For ESPN, the account represents direct access to 6 million football fans who may click on links to its website7 or tune into ESPN programming after seeing a post promoting the network.8 ESPN would be justified in believing that the Twitter account was part of the employee’s work created within the scope of his employment. This could give it the superior claim under the copyright work-made-for-hire doctrine.9 On the other side of the coin, Schefter’s large following allows him to negotiate for a higher wage or even send out endorsements for sponsors,10 rendering the account potentially lucrative. Schefter also has a compelling claim to the account—it is an extension of his personality and the fruits of his labor, not all of which his employment necessarily requires.
This hypothetical conflict is becoming reality in offices across the country. In the modern workplace, employers are encouraging or expecting their employees to maintain social media presences.11 The chief executive officers of companies use LinkedIn to foster relationships with clients12or Twitter to keep the public abreast of their developments.13 Further down the chain of command, salesmen pitch products on Facebook accounts, and public relations directors carefully groom corporate Twitter profiles. More and more companies are hiring employees for the exclusive purpose of running their social media accounts from behind the curtain.14 Yet, some things about the employment relationship never change. Employers and employees will always split for sundry reasons. The only difference is that now, the fight over the rolodex becomes the fight over the password.
Disputes over the rights to use social media accounts are beginning to creep into caselaw.15 But, so far, the outcomes have been inconsistent, if not entirely contradictory. This Comment explores the property interests that employers and employees have in professional social media accounts and suggests one framework for resolving the conflicts surrounding those interests. Part I explains three of the most prominent social media platforms that professionals frequently use, the value of a social media connection, and why this issue is so disputed. Part II discusses the body of caselaw that is beginning to form in this area and explains the need for consistency moving forward. Part III proposes a framework that courts should adopt when addressing disputes over the access to social media accounts.