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Intellectual property law is notoriously bad at keeping up with the technology it is supposed to govern, particularly where the internet is concerned. As a result, business people (and the lawyers who advise them) must be especially careful to cover every possible contingency in agreements governing their online intellectual property or risk falling into the gaps in the protection offered by existing law. Recently, these issues have begun to surface in cases involving the ownership of social media content, which traditional intellectual property law struggles to address.

For example, Facebook updates and Twitter postings (Tweets) are generally too short to be subject to copyright -- Tweets are limited to 140 characters of plain text and the copyright law generally does not protect short phrases or titles. But such postings are typically collected together in a "stream" that might be deemed a protectable compilation, and to the extent a posting contains protectable elements, such as photographs, New York courts have held that the creator retains rights in those elements, despite the fundamentally public and "shared" nature of the social media environment.[FOOTNOTE 1]

These statutory copyright issues, however, are only part of the ownership story. Fundamentally, a business must develop strategies to protect its entire social media "presence." This content typically is not within the direct control of the business -- it resides on the servers of the third-party provider such as Facebook or Twitter -- and it may have been developed and managed by an independent contractor or outside marketing firm. In such complex cases, ownership should be established by contract, but even when contractual relationships exist, enforcement is not always straightforward. These issues were at the heart of a recent decision in the U.S. District Court for the Southern District of New York, Ardis Health, LLC et al. v. Nankivell,[FOOTNOTE 2] which provides some insight into the best practices for parties contracting in the social media space.

THE 'ARDIS' CASE

"Social media," broadly speaking, refers to any online media that includes community features such as user-generated content, the ability to form groups (by "following" or "friending" other users), and the ability to recommend, comment on, and share the content of others. Facebook and Twitter are currently the most familiar social media tools, but many others exist either competing directly with the giants (as in the case of Google's Google+ network) or attempting to create communities focused on more limited information such as restaurant reviews, music, shared photos, or even simply the user's current location.

Stephen M. Kramarsky

New York Law Journal

Hirecentrix Footnote, CASE info - Ardis Health, LLC v. Nankivell, 2011 WL 4965172 (S.D.N.Y. October 19, 2011)

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