Your Boss May Own Your Facebook Wall Posts
Both employers and employees may be surprised to find that employee created blog posts, YouTube, LinkedIn profiles, Facebook profiles, and even tweets may be owned by companies. Yes, even those personal pictures you took last Friday with your loved ones, or direct messages in Twitter could belong to your employer. Why is this? Employees sign employment contracts that may indicate that all intellectual property created during employment may be owned by the company, let’s dive into what you should know:
Work, Online, and Life Mix
As employees check personal websites at work (and likely on work computers) they are indeed using corporate infrastructure. Similarly, as employees do work from home in the evening on personal or work computers the lines continue to blur. It can become even more blurry, as the work and lifestyle content share on social networks becomes one in the same. For example, a LinkedIn account that describes an individual’s career goals which she uses to network with prospects is both personal and work related. Secondly, a product manager who announces new features using his Twitter account is discussing work-related content.
Social Accounts Created At Work, Who Owns Them?
What becomes even more dizzying is the thousands of professionals that have career-related blogs that attract companies in the first place. Who owns their blog posts during their tenure at a company? If an employee generated revenue from those blog posts should the revenue go back to the employer? What if a career blog is launched during employment at a company and discusses information related to the company, or a LinkedIn profile during employment, who owns them?
Case Example: Cisco’s CTO on Twitter and Her Million+ Followers
The real question is: Would a company even want this information? I discussed this on Twitter and many scoffed at the ideas that a company would want bits of 140 characters at a time. Take for example the Twitter account of Padmasree of Cisco. She created this account during her employment at Cisco, and talks about both personal and Cisco related content. Her Twitter account, as the CTO of Cisco is on the suggested users list by Twitter and she has over 1,200,000 followers. This is clearly an asset to her and Cisco, and if she leaves would be a loss to Cisco. I’ve spoken in public with Jeanette Gibson of Cisco communications, and they make it clear it is an account owned by Padmasree, she owns it if she decides to leave Cisco.
Guest Post: Perspective From A Lawyer
I’m not a lawyer, so I’ve asked one to comment on this topic. I recently moderated a panel at Blog World Expo on the topic of sponsored conversations, and I was delighted to meet Attorney Lisa J Borodkin, (her blog, Twitter) who specializes in federal court litigation and the resolution of complex commercial disputes. Her substantive expertise is copyright, trademark and new media law. She commented on this post draft post, and gave me permission to publish the following, which are completely in Lisa’s words, she writes:
“There are several dimensions to this issue.
First, the contract law aspect.
It’s important in the age of the blog and Twitter that people understand that a clause claiming all “intellectual property” created during the term of employment would be property of the company would cover tweets and blog posts. This provision would also cover anything else creative the person did on the side, as a hobby, such as writing a screenplay, or creating a comic strip, even purely for fun.
For this reason, when I represent entertainment executives who are presented with this type of clause in an employment contract, I ask that it be restricted only to intellectual property created within the scope of their job duties under the agreement. The rationale is that if you are not being paid to create something, then the company shouldn’t own your output simply because it is created during the term of employment. That would be a windfall for the company. So it’s a new twist on an issue that has been around for a while. The twist is that when these provisions were first written, I doubt anyone ever thought of blogging or Twitter. So this ownership should be only tied if possible to the type of job the person is hired for.
Second, the copyright law aspect.
Most terms of service for blog hosting sites and Twitter provide that the user is the author and owns the copyright in the blog post or Tweets. (Here’s a link to a blog post I wrote on the subject: http://lisaborodkin.com/ip-protection-for-blog-posts/ ) They also provide that, by using the blog hosting provided by the site, the user grants a perpetual free license to the blog host for using the content. This is a pretty fair distribution of rights. Everyone wins.
The point here is that company “ownership” of the blog or tweet content is not the only option. For most company purposes, a shared license or joint copyright would probably also be just as beneficial. For the blogger, ensuring that the blogger is always credited as the author of the work with a credit and trackback or link is probably the key condition.
Third, the policy aspect.
The larger question is whether the job or industry the person is in is of the type that a company would find it beneficial for the person to be blogging during work hours or using work equipment. There is a good online database of social media policies from a variety of companies at http://socialmediagovernance.com/policies.php They vary wildly, from PR firm Porter Novelli’s “Never comment anonymously” rule, to the EFF’s detailed advice on “How to blog anonymously.” As you state, the reality is that people will blog, Tweet and use social networks, and it is healthier for companies to embrace that and recognize the value in such individual activities, where it is beneficial to the company’s mission.
By now I hope everyone realizes that thousands of lawyers every day are fully employed in reviewing millions of company emails that have been subpoenaed in lawsuits all over the world. As long as a company reminds everyone that they have no right of privacy in anything that goes through the company’s computer systems, and that this extends beyond email to social networks, then employers and employees can undertake these activities mutually aware of the risks and rewards. The hope is that both will find shared value in mixing social media with work and allocate the potential economic rewards in an equitable manner.”
Jeremiah: Thanks Lisa for your insight, it’s interesting that many employees probably don’t realize that content that goes through the company’s systems is owned by the employer –even their personal Facebook messages.
Key Takeaways
- Companies are attracted to potential employees with the ability to communicate online, and those that have a built-in following, yet the rights over the content created aren’t entirely clear.
- Both personal and work lives are mixing online and off, creating blurry lines between ownership of content. In many cases, legacy employment contracts give ownership to the company –even personal created content on company systems.
- Employees are creating social content that relates to work often on company-owned property, or during work hours.
Recommendations:
- Employees should get educated on this topic and find out what it means in your existing employment contract. Get a lawyer that understands the language of the contract, and can advise and protect you.
- Employees should carefully review their existing employee contract to know the boundaries, risks, and liability for their online activity.
- Employees should understand how to create a “carve out” in the employment contract for personal created media.
- Companies should understand benefits and risks, then evaluate their social media policy and update it to reflect the changing world of social as personal and work lives collide.
- Companies and employees should setup training, policies, and a dedicated group within a company to help employees to understand best practices in the new world where personal and work content collide in the workplace and at home.
Updated: Someone tweeted this related cartoon out.
This is incredibly fascinating, and to be honest, kind of scary. As someone who is in the social media space full-time, I’m actually borderline speechless as I take this all in.
Let’s start at the beginning as I sort this all out right here.
Obviously my employer owns what I create for them. I get that. But as someone who is constantly tapping onto my social network to find ideas, locate potential people for partnerships and just get an idea of what my audience is thinking, where is the line for me? You mentioned as we work from home that things get blurry. I’m not a huge fan of the gray area and I feel like in this aspect of my life, it’s very, very gray. I tweet personal and professionally, but never on behalf of my company, just professional-related conversation.
Is this something we should ask our bosses about? Is this something that could be a deal breaker for future employees that now have a heads up? Or is this something that’s good to keep in mind, but probably won’t affect us?
The last thing I want to see is a dumbed-down platform where everyone is increasingly “vanilla” because they fear that their boss will someday own this content.
Hi Jeremiah –
Great analysis.
Here’s a video of Jeanette Gibson discussing this very issue:
http://vimeo.com/5387719
Here’s a toolkit we put together to help companies create a policy on this issue:
http://www.socialmedia.org/disclosure/
Cheers,
Andy
Sydney, yes, you need to review your existing employment contract.
I like Lisa’s line the best, she sets the tone in good spirit that could help both parties:
“The hope is that both will find shared value in mixing social media with work and allocate the potential economic rewards in an equitable manner.
Andy, thanks, Jeanette is great on camera, I appreciate Cisco’s effort to really be open and share what they’re going through.
Great article, it opened my eyes for sure. Gonna check my contract just in case.
Jeremiah & Lisa,
You raise some very good points here. I have spent over 20 years in enterprise security and through the thousands of legal battles and forensic audits I have done at the network and system level, it amazes me how many people still do not realize that everything inside of the employer IDN (Internal Data Network) is 100% company property, even if it is not explicitly defined in any agreements, employee manuals, etc.
As new media/brand equity consultants we always focus on why companies and employees should be blogging, twittering, etc. but we never stop to focus on business integration (WHY should your company be blogging, what is the goal and how does it tie to your actual business mission) and the potential legal positions we put ourselves in.
REMEMBER: The employer writes policies, procedures and manuals to protect the employer, not the employee, make sure you read everything you sign, cla1rify the things you do not understand and ask for the company position on the things that are omitted.
Erik Boles
http://ErikBoles.com
http://twitter.com/ErikBoles
This can become even more interesting for companies that hire freelancers. The freelancer may be allowed to use the company infrastructure even while not charging for the time onsite – especially in situations where the freelancer is awaiting work. What happens to anything created in that “non-billable” time? Perhaps the only thing the freelancer is using is bandwidth, air, and electricity. Does this mean the company gets to keep any intellectual property generated without paying?
Interesting point of view. Here’s two additional points. One, a caveat. And, two, a respectful disagreement.
First, any employment agreement with such broad language as “…any and all IP…” should never be signed. As you clearly pointed out, that would include anything produced in any context of one’s personal life as fair game, should an employer decide it has value and claim it. Your examples such as hobbies, crafts, anything: work related or not. Lisa Borodkin’s recommendation is spot on. Any such clause should be limited to work product that is being compensated for by the employer and is directly related to the job function of the employee. This could relate to side projects that could be spun off and used to compete with the current employer. But that would be a reasonable claim of the employer that the product was the result of resources and opportunity created by employment so therefore the output would be owned by the employer.
Second, implicit in Ms. Borodkin’s analysis is this. Because of the broad nature of such a clause, I think the point is potentially moot. I’m not aware of precedent where such broad language was enforceable. Again, undeer this argument, an employer’s claim could extend to any and all personal activities prior to web 2.0 – photos of your kids, crafts, music, artistic scribbles, sidewalk chalk creations, diaries, personal journals, etc.
Good food for thought. Thanks!
This topic really hits home with me personally due to experiences I had prior to starting my own company. What a great article!
Never underestimate the power of social media, a blog, or an employment contract.
Thanks Jeremiah for bringing to light something many of us wouldn’t think about until it is too late. While we assume people have the best intentions, I will be sure to spell these items out very carefully in my next contract. As one commenter mentioned, as a freelancer there is even more gray area on what is “on behalf of the client.”
Wow. Once again you’re sharing leading edge information that affects us in very impactful ways. Thank you for connecting the dots on this and for bringing in legal expertise on how work with the implications of creating intellectual property that a company may inadvertently own.
It’s empowering to understand how this works going forward with employment contracts.
Wow, this is kind of disturbing. I guess we all need to be a bit more careful how we use company computers. Even if they keep your information, can it be used against you after you leave the company? Should it be against the law in some way?
This is very scary. This is too fine a line and a major lawsuit waiting to happen. I can totally see this being a huge problem in the future.
Barry
Thanks for the insight. You’ve raised an important set of questions: 1) Does the company even care about personal information that’s on Facebook? 2) Is it even enforceable? It sounds like Lisa said there’s multiple cases where private emails become surfaced in a court of law.
Interesting to see how many people are leaving comments with their first name only –that’s rare.
Also, I’m getting DMs and private emails from people that are going through this.
Touchy topic.
Hi Jeremiah,
Very timely topic, and thanks for bringing in an attorney to clarify things.
I had talked with my own corporate counsel about this very same topic but from the perspective of a hotel who has a concierge, and uses her position and social networking tools like Facebook or Twitter. The hotel’s concern is that should the concierge decide to walk out the door, the cumulative relationships don’t leave as well.
As an employee, you should not presume any form of ownership that is not spelled out in writing. Laws and statutes vary greatly from place to place and an oral contract with your boss may not be binding. Most laws are going to take years to hash out, and in many cases I suspect the courts will first attempt to adopt the same precedents set over email use. So whatever you do, get it in writing.
As a practical matter, it is not easy to march into your boss’ office and ask for something that doesn’t even exist. But you should feel confident in asking for what’s fair.
GaryVee had some awesome comments in this vein in a conversation with Peter Kim. If it were me I wouldn’t be afraid of my company “owning” whatever social media ideas I come up with. I’d be more concerned whether my company allowed me to pursue my passions, and whether the tradeoffs continue to be worth it.
http://www.dachisgroup.com/2009/10/conversation-with-garyvee/
Interesting read. Thankfully I doubt any company would be interested in my blog posts…
But what happens when you have built your network, blogs, etc… thanks to your position in the company? You wouldn’t have all those followers if you weren’t working for them, or get access to all that juicy information for posts if you didn’t work there… Does the company have any right to complain about that?
And also, what happens with people who work for several employers? Maybe you read/work on something for an employer, use it on a different project with somebody else.
It would be great if all those grey areas got made clear somehow, but I guess it’s a bit too young for that.
As you said, this “mix” is making intellectual property ownership more complex between employees and employers as they both engage within social media. Depending on your job, it can be even less clear how you separate all of your online aspects of work and life.
I’ve worked with Denise Howell (http://www.bagandbaggage.com/about/) in the past and I couldn’t recommend her more if you’re looking for someone in the Bay Area to give advice on an employment agreement you’re wanting to sign.
Thanks for sharing about this topic. This is a powerful subject and one that can have a huge impact on every marketer. I freely use my personal accounts to gain exposure for my company and clients and have felt entitled to ownership of them regardless of where or how they were published. I may be naively optimistic.
This raises a valuable question of ownership despite authorship. I’m going to look into my own existing contract and submit an addendum to the company that will protect both myself and them.
Good call. True and really happening, although this is case to case basis. For sure, not here. Cheers!
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This is outstanding. Thanks Jeremiah (and Lisa) for such a thorough and succinct post. Bookmarked and printed for future use.
This is outstanding. Thanks Jeremiah (and Lisa) for such a thorough and succinct post. Bookmarked and printed for future use.
The thing that bothers…scares me…is not my company owning what I do on the job. It seems obvious to me that if I am writing a blog entry during normal work hours (which I'm being paid for) that my company would have claim to the content. They're actively paying me for my output at that moment. I am using their equipment. Etc.
What does bother me intensely is the idea that my company could ever claim ownership to a Facebook account I had prior to my employment there, to art I create in the evenings or on weekends, or to vacation photographs. Granted, I doubt they'd want the vacation photographs.
But simply because a company pays me to work 40 hours a week does not mean the company has claim to every thing I do at all times in all places. Rather, it should not. That's tantamount to claiming ownership of *me.* My company does not facilitate me maintaining a blog at home in any fashion. My time and the results of my efforts belong to my employer for the 8 hours a day my employer pays me. Not for the 16 hours my employer does not pay me.
If this becomes an issue in our society I will know we've finally progressed to the societal equivalent of terminal illness. It shocks me how much the private individual citizen gets the short end of the stick…
The thing that bothers…scares me…is not my company owning what I do on the job. It seems obvious to me that if I am writing a blog entry during normal work hours (which I'm being paid for) that my company would have claim to the content. They're actively paying me for my output at that moment. I am using their equipment. Etc.
What does bother me intensely is the idea that my company could ever claim ownership to a Facebook account I had prior to my employment there, to art I create in the evenings or on weekends, or to vacation photographs. Granted, I doubt they'd want the vacation photographs.
But simply because a company pays me to work 40 hours a week does not mean everything I do, say, and create anywhere at any time belongs to my employer. Rather, it should not. That's tantamount to claiming ownership of *me.* My company does not facilitate me maintaining a blog at home in any fashion. My time and the results of my efforts belong to my employer for the 8 hours a day my employer pays me. Not for the 16 hours my employer does not pay me.
If this becomes an issue in our society I will know we've finally progressed to the societal equivalent of terminal illness. It shocks me how much the private individual citizen gets the short end of the stick… The mere idea that a company could ever claim the fruits of an employee's labor from the 16 hours a day the employee isn't working! If that were the case I'd want far more money and perks.
the company™s computer systems, and that this extends beyond email to social networks, then employers and employees can undertake these activities mutually aware of the risks and rewards. The hope is that both will find shared value in mixing social media with work and allocate the potential economic rewards in an equitable manner.