Fight Over Virginia Tech Sportswriter's Twitter Account: Who Owns Employees' Social Media Accounts?

Andy Bitter was a sportswriter for the Roanoke Times covering Virginia Tech football.  He recently announced on Twitter that he was leaving the Roanoke Times and would become the VT beat writer for The Athletic, a subscription-based, online sports website.  He pinned a tweet on his Twitter feed urging followers to subscribe to The Athletic and continue reading his sports journalism. 

The problem?  The Roanoke Times claims that it owns his Twitter account and that Bitter's refusal to turn over the account constitutes misappropriation of trade secrets.

On August 6, 2018, BH Media, the owner of the Roanoke Times, filed a lawsuit in the U.S. District Court for the Western District of Virginia against Andy Bitter accusing him of misappropriating its trade secrets.  The Complaint includes counts under the Defend Trade Secrets Act, 18 U.S.C. 1836, the Uniform Trade Secrets Act, Va. Code 59.1-336, the Computer Fraud and Abuse Act, 18 U.S.C. 1030, the Stored Communications Act, 18 U.S.C. 2070, and the Virginia Computer Crimes Act, Va. Code 18.2-15.2, as well as common law conversion and breach of fiduciary duty.

The Twitter account at issue is not clearly identified in the Complaint.  It is simply described as an "account" that was originally created in August 2010 by Kyle Tucker, formerly a staff writer covering VT athletics for the Virginia Pilot, another newspaper that used to share the same ownership as the Roanoke Times.  BH Media, the current owner of the Roanoke Times, claims that it obtained ownership of this "account" and its list of followers.  BH Media alleges that it provided Bitter with access to the account when he was hired to replace Tucker in 2011.

Based on the description in the Complaint, the Twitter account at issue appears to be @AndyBitterVT.  Presumably the name of the Twitter handle has changed over the years, which is easy to do on Twitter.

Who Owns a Twitter Account? 

It is common for a businesses to promote itself through social media and encourage its employees to do the same.  So when does a social media account  belong to the employer and when does it belong to the employee?  The answer to this question is not as clear as you might think.

One of the first and most notable cases addressing this question is PhoneDog v. Noah Kravitz.  Kravitz worked for PhoneDog, a technology news website, and created the account @PhoneDog_Noah as part of his job.  When he left his job, he changed the Twitter handle to @noahkravitz and took his 17,000 followers with him.  PhoneDog sued him for misappropriation of trade secrets, which resulted in an out-of-court settlement before the court could address the merits of the case.

One of the interesting aspects of cases like this is whether a public Twitter feed and list of followers (which is also public) can constitute a trade secret.

In the law review article, Who Owns Your Friends?: PhoneDog v. Kravitz and Business Claims of Trade Secret in Social Media Information, Jasmine McNealy writes:

"Unless a [social network site] user takes steps to protect their profile information, all of their postings and connections are available to public scrutiny.  But secrecy is one of the main factors in evaluating the existence of a valid trade secret.  A question arises, then, as to whether the use of social media to make connections for business purposes can be the subject of a trade secret."

What Can Businesses Do?  Develop a Social Media Policy.

So what can a business do to make sure that it retains the benefits of the social media marketing performed by its employees?

Ownership of social media accounts should be agreed to up front, before becoming an issue in post-employment litigation.  These issues can be addressed in an employee handbook or a more comprehensive social media policy. 

In this helpful article, Orla O'Hannaidh, a Womble Bond Dickinson attorney, discusses what should be included in a social media policy.  If a particular social media account is especially important to your business, then the ownership of that account definitely should be specified in writing.

The importance of a clear social media policy is evident in the case Eagle v. Morgan, 2013 WL 943350 (E.D. Pa. 2013).  In that case, the founder of a business that was sold to another company created a LinkedIn account to promote the business.  She shared the login and password with other employees who helped manage the account.  When she was fired, the company changed the passwords and locked her out of her LinkedIn account.  She then sued her former employer under a number of different theories, including unauthorized use of name, invasion of privacy and misappropriation of publicity.  The court ruled in her favor on several claims, but suggested that the employer may have prevailed if there had been a clearly written social media account that covered ownership of such accounts.

While most businesses do not want to own their employee's personal LinkedIn accounts, there are other types of social media accounts that are much more beneficial to employers -- as demonstrated by the recent lawsuit filed by the Roanoke Times. 

Having graduated from the University of Virginia, I am no fan of Virginia Tech football; nevertheless, I am interested in seeing how this case develops.  Perhaps it will establish some clarity in this developing area of the law.

Should you need any assistance in matters related to trade secrets or social media policies, please contact Jason Hicks or the Womble Bond Dickinson attorney with whom you regularly work. 

Roanoke Is Back On The Map

Politico Magazine has published a very good story about the rebirth of Roanoke's downtown and its transformation from a railroad ghost town to a vibrant, outdoorsy, high-tech city.

I have commented before about how the changing economy in cities like Charlottesville and Roanoke would change the legal community as well as the reputation and docket in the Western District of Virginia.  Just as UVa has played a large role in Charlottesville's "innovation" economy, Roanoke's economic growth is fueled in large part by nearby Virginia Tech and its investment in the new medical school and neuroscience institute.  This technology driven growth means that the Western District of Virginia will continue to see more complex business litigation and intellectual property related disputes.

On a personal note, this sentence in the article's lede took me by surprise: "A decade ago, the U.S. Census counted 15 people living in Roanoke's downtown."  It seems I was one of those 15 people.  Actually, it was more than a decade ago, while clerking for Judge Wilson, I lived in a small apartment a couple blocks away from the federal courthouse, close to Center on the Square.  Back then, most people thought I was crazy to live downtown, but now I look like a trendsetter!  

Conversation on the Impact Economy at Live Arts on May 25

For all my Central Virginia friends, you are invited to a discussion about the "Impact Economy" and a follow-on happy hour on May 25 at the Live Arts Center. This topic seems ideally suited for the Charlottesville community.  Click here to register for this free event.

Purpose + Profit: An Impact Conversation The Impact Economy is a new market force underpinned by public and private companies, entrepreneurs and investors striving to achieve a deep connection between profit and purpose. Impact is often called “the intersection of doing good and doing well.” With an increasing number of participants, the idea of "Impact" as an economic force has hit the mainstream.  Charlottesville, with its deep sense of history, its firm eye toward the future, and its tremendous sense of community, is the perfect place for the Impact Economy to take hold. So whether you're an entrepreneur or an academic, an investor or a student, or just interested in learning more about Impact in Charlottesville (and what we can do with it), join us for good coffee, a great conversation, and a follow-on happy hour! DATE: Wednesday, May 25, 2016 TIME:  3:00 p.m. - 5:00 p.m. WHERE:  Live Arts Third Floor Lounge 123 East Water Street Charlottesville, VA 22902 Phone: 434.977.4177 QUESTIONS:  Please contact Amanda Ames at AAmes@wcsr.com

Lawsuits Continue Against Central Virginia Regional Jail

Two federal lawsuits are proceeding against the Central Virginia Regional Jail for civil rights violations of inmates.  One case is brought by the mother of an inmate who died in CVRJ custody allegedly due to lack of medical care.  Thornhill v. Aylor, et al., Case No. 3:15-cv-00024, (WD.Va.) The other case is brought by a former inmate who claims she had medication withheld while at jail that resulted in a psychotic break and hospitalization at Western State Hospital in Staunton.  Jenkins v. Aylor, et al., Case No. 3:15-cv-00046 (W.D.Va.).  Both cases are pending before Judge Conrad in the Charlottesville Division of the United States District Court for the Western District of Virginia.  The jail, located in the Town of Orange, serves the surrounding counties of Fluvanna, Greene, Louisa, Madison and Orange.

In February 2016, Judge Conrad granted in part and denied in part the defendants' motions to dismiss the Thornhill case.  The Court dismissed the class action claim after finding there was insufficient "commonality" among the proposed class members.  The Court dismissed the individual claims against some of the defendants, but allowed others to go forward after finding that there was "sufficient factual allegations to support the claim that there was an official policy of deliberate indifference at CVRJ, specifically based on [the Superintendent's] inactions as its policy maker."  The Court determined that arguments as to sovereign immunity and qualified immunity would be heard at a later stage of the litigation.

Similarly, in the Jenkins case, the plaintiff brought the suit as a class action, but the defendants have filed motions to dismiss the class action claim and portions of other claims.  Those motions were heard by the Court on March 23, 2016.  An interesting issue that was argued at the hearing was whether the Central Virginia Regional Jail Authority is entitled to sovereign immunity.  Defense attorney argued that the five counties that comprise the authority each have sovereign immunity and would retain sovereign immunity if they operated their own separate jails; therefore, there should be immunity for the regional jail authority.  Plaintiff's counsel, however, argued that the authority itself does not meet the all of the standards for sovereign immunity, even thought its constituent members would have immunity.  The Court reserved judgment and will issue rulings on the motions at a later date.

You can read more about the lawsuits here and here.

Virginia GOP Settles Copyright Lawsuit Brought By On-Line Publisher

Valerie Garner, publisher of the Roanoke Free Press website, has settled her copyright lawsuit against the Virginia Republican Party related to the unauthorized use of a photograph she took of Delegate Sam Rasoul.  This photograph was the subject of prior litigation between Garner and a political blogger who used the same photograph on his website.  In 2015, Judge Conrad issued an opinion denying the blogger's motion to dismiss based on the fair use doctrine.  The case settled shortly thereafter.  In the most recent case against the Virginia Republican Party, Garner alleged that the GOP use the same photograph in a campaign mailer, without her permission.  The GOP had filed a partial motion for summary judgment arguing that Garner was not entitled to statutory damages or attorney fees under the Copyright Act.  While that summary judgment motion was pending, the parties settled the case, for $9,000 and a promise not to use the photograph again, according to news reports.

New Website for Womble Carlyle's Charlottesville Office

Womble Carlyle's Charlottesville Office has a new website.  We're still trying to find the perfect photograph to represent Charlottesville's spirit.  Something that captures both Charlottesville's rich history and bright future; its pastoral landscapes and burgeoning economic development; its small town feel and world-class research and development.  The current picture is the view outside our offices on the Downtown Mall.

Womble Carlyle and Charlottesville are a good fit for many reasons.  One of which is our focus on the Impact Economy -- the concept of doing good while doing well.  This new market force is underpinned by public institutions and private companies, entrepreneurs and investors, who combine the desire to achieve financial success with social responsibility.  Womble Carlyle is the first law firm in the country to launch an integrated, full-service Impact Economy practice that covers virtually all Impact sectors, including housing, environment, education, economic development, healthcare and energy.

The concept of an Impact Economy is readily apparent in Charlottesville's innovation community.  The National Venture Capital Association recently ranked Charlottesville as the fastest-growing venture capital market in the United States.  Academic research at the University of Virginia is the driving force behind much of this growth.  Sean Carr, Executive Director of the Batten Institute for Entrepreneurship and Innovation at UVa explained that "this latest news about growth in funding opportunities in our area provides some early evidence that Charlottesville has the potential to be one of the nation's best environments for starting and developing high-impact and high-growth ventures."

By their very nature, many of these start-ups begin as a good idea to addresses a need or social problem.  That idea, often created within an academic environment, is then developed and spun off into a money making venture.  The academic or social goal that served as a genesis for the new company need not be abandoned.  To the contrary, profit and social responsibility can work together.  This is a perfect example of the Impact Economy at work.

Womble Carlyle's Impact Team strives to provide strategic and advisory services to our clients in addition to legal services.  We believe that impact-focused businesses can be most effective when they engage trusted advisors to help them creatively respond to the unique challenges presented by the business of addressing and solving social problems.  You can read more about Impact issues here and learn more about Womble Carlyle's Charlottesville office here.

Malicious Prosecution Case to Continue Against Patrick Henry Community College Athletic Director

Historic Henry County Courthouse

An affair between a college coach and a basketball player, a disputed confrontation between parents and a college administrator, accusations of assault and kidnapping, fifteen days in jail, claims of false arrest and malicious prosecution, and a mystery video tape: this case sounds more like a soap opera than a federal lawsuit.

A new opinion from Judge Kiser involving salacious accusations against the Patrick Henry Community College women's basketball team and athletic director is anything but boring.  See Robinson v. Davis, Case No. 4:15-cv-00040 (Dec. 30, 2015).

The plaintiffs are the parents of a former female student and basketball player at Patrick Henry Community College.  During the 2012 season, the plaintiffs learned that the coach of the women's basketball team was having an affair with another one of the players.  As a result, they removed their daughter from the team and confronted the Athletic Director in a meeting at his office.  The complaint alleges that the AD became upset, belligerent and verbally aggressive towards the parents--yelling at them to get out of his office and threatening to call the police.  

The parents claim they did nothing to physically threaten the AD or basketball coach, but apparently the AD has a different version of the facts because he swore out a warrant against the father for felony abduction, kidnapping and assault, and against the mother for assault.  The parents were arrested after their return to their Virginia Beach home.  The father was held in jail for fifteen days before being released and the charges against him dropped by the prosecutor.  The mother, who was also incarcerated for a time, was found not guilty of the assault charge.

The parents then filed a malicious prosecution and false arrest lawsuit against the Athletic Director and the sheriff's deputy who agreed to file the charges despite, according to the parents, a video tape of the incident "showing no criminal actions."  The case was transferred from Virginia Beach to Henry County, where it was then removed to the Western District of Virginia after the parent's filed an amended complaint adding federal question claims under Section 1983.

The case then came before Judge Kiser on a motion to dismiss.  The Court denied the motion as to the malicious prosecution and false imprisonment claims because, taking the facts alleged in the complaint to be true, there was no probable cause for the arrests.  The Court could not infer, as defendants' requested, that there was more to the altercation than alleged in the complaint because all facts and inferences must be view in the light most favorable to plaintiff on a motion to dismiss.  

Similarly, the Court declined to consider the video of the incident -- which defendants claim shows that the parents became irate, blocked the AD in his office and had to be dragged away by their daughter.  Although the video was referenced in the complaint, the Court determined that its contents should not be considered on a motion to dismiss because the complaint itself did not rely on what was in the video.  (The video will however be considered on any summary judgment motion).

The Court, however, granted the motion to dismiss with respect to the Section 1983 claim against the Athletic Director because his actions were not "under color of state law."  Although he was a state employee, nothing suggested that his alleged conduct (trumping up charges against the parents) was made possible because he was a state employee.  The Court explained:

To put it another way, anyone can lie to the police  Because the [Athletic Director's] actions were no more than what any private citizen could do, there is not a sufficient nexus between [his] actions and the state to convert this private tort into a federal wrong.

The case will now proceed in federal court in Danville, unless somehow the 1983 claim against the sheriff's deputy is dismissed, in which case the case may be remanded back to state court.