"Handle" With Care: Second Circuit Clarifies Ownership Test For Social Media Accounts

• Published date: 19 February 2024
• Law Firm: Wilson Elser Moskowitz Edelman & Dicker LLP
• Author: Stephen J. Barrett and Gabriella Rios

As businesses and content creators increasingly depend on innovative online marketing strategies, ownership of social media accounts has gained significant value. A well-known social media handle - and that handle's legion of followers - can be an invaluable component of a business's or creator's brand. Content creation is occurring across social media platforms, in many cases by influencers and brand employees.

Determining who owns a social media handle, and evaluating the question of how a business comes to own a handle, is critical for anyone engaged in online marketing. However, in tension are traditional property principles of ownership and a divergent analysis that would lean into considerations of "the dynamics of social media."¹

On January 17, 2024, the Second Circuit issued its second decision in JLM Couture, Inc. v. Gutman, bringing clarity to how courts around the country may strike that balance and articulating a standard that seeks to reconcile the unique dynamics of social media within the existing property law framework.

Background

JLM Couture specializes in luxury bridal apparel. Hayley Gutman is a fashion designer, social media influencer and former employee of JLM. In 2011, Gutman began to design bridal dresses for JLM and signed an employment agreement that included a noncompete clause. It also granted JLM exclusive rights to use and trademark the name Hailey Paige and variations thereof.

In her early years of employment, Gutman opened Pinterest and Instagram accounts under the handle "misshayleypaige," a derivative of her birth name. These accounts were created using her name, her personal cell phone number and a personal email that she used for work purposes. She was not directed by JLM to create the accounts.

Notably, Gutman used the social media accounts to...