New social media has changed the way consumers interact with retailers, fashion designers, and each other. As Victoria Beckham, Marc Jacobs and Michael Kors battled over the most mentioned New York Fashion Week Label earlier this month at Fashion Week in New York, “Twitter Dress” caught some attention not only for its unique design, but also for revealing some truths about the future of branding and collaboration with online resources like Twitter. Microsoft and Bloomingdales embraced the reality of the new social media landscape with an emblematic statement: fashion and social media have only just begun their exciting future together. (Though as both a Twitter enthusiast and fan of high fashion, seeing that interesting looking dress was…bittertweet.)
As more companies look to Twitter and seek out talent experienced in social media marketing strategies, a lawsuit currently being decided in the Northern District of California has some interesting ramifications about the scope of the rights associated with a Twitter account and the real value of having thousands of followers.
In PhoneDog v. Kravitz, Case Number C 11-03474, 2011 WL 5415612 (N.D.Cal. Nov. 8, 2011) plaintiff PhoneDog brought an action against former employee Noah Kravitz for his continued use of Twitter account that it believes belongs to PhoneDog. Kravitz worked as a product reviewer for PhoneDog and generated approximately 17,000 Twitter followers during his years there for the handle “@PhoneDog_Noah” which he changed to “@noahkravitz” upon ending his employment with PhoneDog. Naturally, Kravitz did not wish to relinquish the popular account at PhoneDog’s request, and the lawsuit ensued. (Of course “popular is relative; Karl Lagerfeld’s cat Choupette boasts over 19,000 followers of its own). PhoneDog asserted claims for misappropriation of trade secret, intentional interference with prospective economic advantage, negligent interference with prospective economic advantage, and conversion. Interestingly, PhoneDog sought to value each follower at $2.50 each, “according to industry standards” claiming the account has a value of approximately $42,500 per month as a result. PhoneDog maintains that the Twitter list of followers is a customer list, and seeks damages of $2.50 per follower per month for eight months, totaling $340,000.
How will the court answer the question of who has ownership rights to user accounts? To followers? Twitter’s own Terms of Service explain that “[a]ll right, title, and interest in and to the Services (excluding Content provided by users) are and will remain the exclusive property of Twitter and its licensors.” Further, as to user-posted content (the essence of a tweet) Twitter explains that “[y]ou retain your rights to any content you submit, post, or display on or through the services. By submitting, posting or displaying Content on or through the services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).” Whether PhoneDog will be able to prove it is the rightful owner of the services, specifically for its conversion claim, will inevitably depend on the court’s understanding of Twitter’s Terms of Service as they relate to its Users. Twitter’s reserved right “to remove or refuse to distribute content” demonstrates the control it exercises over user accounts, and begs the question, can a follower ever be “owned” since all followers are account holders, and Twitter owns all rights to all accounts? Surely the Terms of Service will have to contend with PhoneDog’s argument that the followers “were and are the sole property of PhoneDog.” Kravitz countered in his unsuccessful motion to dismiss, arguing “a Twitter account and its human followers are not property”. Yet the question remains at the forefront of the dispute. The evidence for PhoneDog’s follower valuation will also be interesting for the court to consider as it weighs the conversion claim.
We will be watching this case closely as it works its way through litigation, as branding on services like Twitter and Facebook becomes ever more important. Rights are still being defined in this realm and the forthcoming decision has the potential to add some color to the landscape. Facebook “likes” and Twitter followers have truly replaced many traditional measures of popularity and success in fashion, and as Bloomingdale’s revealed, hashtags can even replace needle and thread. Now what about the matching #pumps?