Heather Bussing | Founding Member of the HRExaminer Editorial Advisory Board

Heather Bussing is a returning contributor to our HRExaminer Editorial Advisory Board. Heather has practiced employment and business law for over 20 years. She has represented employers, unions and employees in every aspect of employment and labor law including contract negotiations, discrimination and wage hour issues. While the courtroom is a place she’s very familiar with, her preferred approach to employment law is to prevent problems through early intervention and good policies and agreements. Full bio…

Copyright and Work for Hire

Generally, when you create something, you own it.  One major exception is if someone hires you to create it– the Work for Hire doctrine.

The specific rights then depend on whether you are an employee or an independent contractor.

If you are an employee and blog, tweet and promote your company in social media as part of your job duties, then the content you create belongs to the company.  It is considered “Work for hire” and you don’t own it.  The employer does.

That means the employer gets the accounts, content, contacts and user names on those accounts when you leave.  If you are an employee, this is a very good reason not to use your personal accounts for work and vice-versa.

If you are an independent contractor and are hired to create content for a blog, twitter or Facebook, then the content technically belongs to you unless there is a specific agreement otherwise and the work qualifies under copyright law as “commissioned” or work for hire.

As an independent contractor, the content you write would become the property of the company if:  a) the creation of the content is what you are specifically hired to do—as opposed to posting something you previously wrote; b) before you create the work, you and the company sign an agreement that the work is “for hire” and belongs to the company; and c) the work is one of the seven types of projects that can be “work for hire” under the copyright law.  The only one of the seven types of work that could arguably apply to blogging or social media would be as a “contribution to a collective work” such as a magazine.  My sense is that blogging would likely qualify.  Tweets and posting links probably would not be work for hire.

If the work does not qualify as work for hire, either because there is no agreement or it is not the type of work covered, then it is technically owned by you, the author.

However, and this is a big however, since the company paid for the work to be performed, it would have rights to use it.  These rights are generally licenses.

Licenses

A license is when you let someone use your stuff.  Licenses can be given or sold.  They can be exclusive or nonexclusive, expire after a certain time or have restrictions attached about how the material is used.  For example, when you buy software, you don’t actually buy the computer program; you buy a license to use it.

Social media sites are set up based on licenses.  Under the user agreements for Facebook, Twitter and Ning you own the content you create, but you grant a license to the website owner to use and publish the content you put there.  You can revoke that license by deleting your page, notes or comments.

An interesting question is whether you can grant Facebook a license to content that you don’t own because it is work for hire.  You would probably be considered an agent for the company authorized to grant the license as long as creating the content was within your job duties.

If you are a rogue blogger and creating social media content about your company without its knowledge or permission—you may have other problems—like how long you will have a job.

But the bottom line is if you are an employee, the content belongs to the company.  If you are an independent contractor, you may own the actual content of the material you write, but the company that hired you to write it will have a license to use it.

This is where contracts come in.

Contracts

Whether you are an employee or an independent contractor, you can agree in a contract about who owns the content, how it will be used and who gets to use it after the relationship ends.  A contract is the simplest way to decide who owns the content—both sides agree ahead of time.

Things to think about:

What is the User Name? If the account is in your personal name and the account belongs to the company, you may have to get a new user name when you leave and the company may not be able to change the name to something that will be relevant to them either.  You can change Twitter account names.  You can’t change Facebook names.  So keep personal accounts in your own name and set up Company accounts in a name that will live past your tenure

What About Contacts? The courts have determined that contacts, followers and friends in social media are not protected trade secrets or confidential customer lists.  The reason is that they come and go and change frequently.  If your account is work for hire, the contacts would stay with the company.  So if you want to “keep” them, make them personal contacts on your personal accounts too.

What About Content? What level of control do you have and does the company have over the content you write?  Does everything have to be approved before it gets posted?  Do you have complete discretion?  Or is it somewhere in between?  The best articulation of a social media policy is by an airline company who encourages their employees to use social media.  They monitor what gets posted and allow “the good, the bad and the ugly, but not the mean.”  When they find something that’s mean, they ask the author to delete it.

Does it Matter?

At the end of the day, it may not really matter who owns what.  Companies have no use for your personal Facebook page and twitter accounts in your own name.  You won’t really care about using or maintaining a company blog once you leave.  If the content stays online, you can always point to it with a link later.  If not, keep a copy so that you can use it as a resource for later articles you write elsewhere.

Social media contents come and go often by whim.  A social media contact is just a username attached to an email address– not a real relationship.  If you have a genuine working or real time relationship with someone, you know how to find them even after you leave your company.

But if there is something important to you that you are creating for a company in social media, the best way to deal with it is to create a contract that says who owns what and what the rights to use it are after you leave.