Back in 1997, Tom Peters wrote an article for Fast Company magazine titled “The Brand Called You”. It’s a good read and was the first time I recall hearing about personal branding. The logic being that companies build their business on brand reputation; individuals need to do the same.
In today’s technology driven world that means individuals have to consider their activities on social media as part of their brand. I’d like to think by now we all understand this.
A while ago, I was doing some training at a company where they had hired someone with 750,000 Twitter followers. It was part of the reason the employee was hired. The employee hadn’t bought the Twitter following. They had just worked very hard to get them and keep them engaged. It made me wonder – who owns those Twitter followers? And the bigger question of who owns your social brand?
So, I asked our friend Heather Bussing if she would share her expertise. Lucky for us, she said yes! Heather is an employment attorney and regular contributor at HR Examiner. She’s shared her expertise with us before. This post is one of my favorites. As always, please remember that Heather’s comments should not be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor attorney.
Heather, there’s a lot of talk about the importance of building a personal brand. In today’s business world that includes building a social brand. From a legal perspective, does an individual “own” their social brand?
[Heather] Your personal brand is generally your presence online and in the world. It includes your posts on social media, your personal blog, and the things that are easily find-outable about you. There are many approaches to thinking about ’brand,’ but the idea is to create a positive association when people see or mention you, and to develop a reputation that highlights your best work.
Who owns your personal brand depends on how you develop it, who signed up for the social accounts, whether you were paid to do the work, and whether you signed any agreements about it.
Generally, if you sign up for a social media account and it’s in your name, then you ’own’ it. You own the content you create, the things you do there, and you have control over your connections. Different platforms have different rules about whether you can download that information, whether you can copy it, and how you can use it outside of the platform.
The fundamental legal principal is ‘if you control it, it’s yours.’
(Editor’s Note: Please remember to refer to a social platform’s Terms of Service (TOS) for details.)
Let’s add a layer of complexity to this – if a person is employed by a company – does that change who owns the brand? What if the employee uses their company exposure to grow their social brand?
If an employee is being paid to use their own account for work, then the employer could end up owning the account, despite the fact that it’s in the employee’s name. Generally employers own the product of their employee’s work when the employees are paid to do it, especially when the employee uses company time and computers to perform the work. This is the work for hire doctrine.
When an employee is using their personal accounts to promote the employer’s brand or product, and that is part of the job, both sides are going to want the contacts and content when the employer and employee part ways. This is particularly true for recruiters who often develop relationships online with potential candidates.
The social media account terms and services won’t cover who owns what’s between the person who signed up for the account and a third party who benefits from it. So both employees and employers want to think through what happens when they part, and how to handle it. Having an agreement before there is a problem saves everyone time, money, and emotional distress.
What about individuals who are working as freelancers, consultants, contractors, etc.?
[Heather] Freelancers and independent contractors are also subject to the work for hire doctrine—generally if you pay for something to be created, the person who pays for the work will own it. But this can be affected by the terms of service for the individual accounts and any agreement between the company and the person providing the work.
Again, figuring it out ahead of time is the way to go.
If I’m a job seeker today, and I’ve built a social brand, should I address that during the interview process? And if the answer is yes, when is the best time and manner to do that?
[Heather] It depends on the job. If the work will involve the employee using their personal accounts for work, then definitely bring it up and figure out how both sides can have copies of all the content and contacts developed during the employment. The employee will want to make sure that they retain the password, access to, and control over any individual account in their name. The employer will want to have a complete copy of everything, along with the rights to use that information outside the account when the employee leaves.
I would bring up the issue after there is an offer. If you raise it before then, you risk being more concerned about your social media presence than the job.
If the job does not involve using a personal account for work, then there’s really nothing to bring up.
If I mention my social brand, am I opening myself up to the company wanting to check it out (and possibly make employment decisions based on it)?
[Heather] Most recruiters and companies will look at what is out there about you online anyway. Employment decisions are made based on what they find all the time, and you many never know it. The big exception is if the employer uses a third party to do a background check; then under the Fair Credit Reporting Act, they have to give you notice and let you know whether something they found online was a factor in not hiring you.
Last question – you’re very good at offering practical advice. What are the 1-2 things I need to remember when it comes to the legal responsibilities of my social brand?
[Heather] Whenever an employee is using personal social media accounts for work, both the employer and employee will want a written agreement that covers the following issues:
- The extent to which the employer has authority over what the employee posts on the account and whether any review or approval is required before things get posted. Be careful of NLRB protected, concerted activity issues here, as well as employer liability and employee discipline for the employee’s off-duty posts. See 8 Reasons Social Media Policies Backfire, and Social Media’s Real Legal Issues for more information.
- Who gets what when the relationship ends. The best approach is for the employee to retain all personal accounts, but the employer gets a copy of the content and the contact lists and a license to continue to use it after the employee leaves. The employee may also want a copy of the content and contacts she develops on the employer’s accounts, which may be great or not, depending on the position and concerns about how the information might be used later.
- Understand whether what you want to agree to will violate the social media platform’s terms of service. For example, LinkedIn is extremely fussy about what you can copy from their website (nothing) and how you can use it (you can’t), but Facebook allows the user to download everything there as a pdf and use specific content you create elsewhere.
A HUGE thanks to Heather for sharing her knowledge with us. Please be sure to check out her work on HR Examiner. It’s very good reading.
Individuals need to be aware of the brand they are building for themselves and not be afraid to protect it. We’re often reluctant to admit we have an extensive network or that we have influence, like we’re bragging. Our credibility is part of our personal and social brand. That’s worth standing up for and making sure clear expectations are established regarding ownership. Retaining proper control over your social brand is in the best interest of the candidate and the company.
Image from fabulous Key West by Sharlyn Lauby