Guest column by Alexa Elder with Wyatt, Tarrant & Combs: Clarity for businesses using influencers – The Business Journals

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Young people today are turning to influencer marketing for proof that the products they want — or didn’t know they wanted — are worth buying. Influencers are paid by companies to promote their products and brands through social media. The growing use of influencers has become an important way for businesses to increase sales.
Businesses have come to accept that influencers know how to access social media to create personal connections and trust with their followers. This effort might seem little more than a fun enterprise, but social media influencers can make significant amounts of money in their efforts to get their followers to buy the products they promote.
In today’s world, social media accounts are business assets, and they should be treated as such. Businesses that hire influencers should have a clear agreement on the front end regarding the marketing of their brand or product and the ownership of any social media account or the content created for those accounts as it relates to that specific business. And, of course, that agreement should be in writing.
Take the federal case earlier this year in the Southern District of New York, which ruled that social media influencer and wedding dress designer Hayley Paige Gutman could keep exclusive control over the “misshayleypaige” TikTok account, but that she must share access to the “misshayleypaige” Instagram and Pinterest accounts with her former employer, JLM Couture Inc.
The bitter legal battle between Gutman and JLM began more than two years ago when Gutman resigned from JLM as the lead designer of “Hayley Paige” wedding dresses nearly two years before her employment contract expired. Gutman seized control of these three social media accounts, all of which had been used to advertise JLM’s Hayley Paige dress line. Gutman then used these accounts to promote herself as a dress designer and social media influencer to endorse third-party companies unrelated to JLM.
JLM sued Gutman alleging, among other issues, that Gutman’s use of the Hayley Page Gutman name constituted trademark infringement and violated the terms of an agreement in which Gutman gave JLM exclusive right to her name. JLM also argued it was the owner of these social media accounts.
The case made its way to the U.S. District Court where it found that JLM had produced credible evidence that the “misshayleypaige” Pinterest and Instagram accounts were frequently used for advertising programs by the company, and that JLM had given Gutman content and captions to post on the Instagram and Pinterest accounts before her resignation.
In the court’s view, JLM’s evidence sufficiently demonstrated that Gutman breached her duty to assist JLM with advertising programs when she took total control over the Instagram and Pinterest accounts for self-serving purposes and stopped advertising JLM’s content on the accounts prior to the agreement’s expiration.
However, the court determined that the “misshayleypaige” TikTok account did not serve as an advertising platform during Gutman’s employments. Thus, the court granted Gutman total access and control over that TikTok account.
Yet the court gave JLM exclusive control over the Instagram and Pinterest accounts and prohibited Gutman from using any of the social media accounts bearing the “misshayleypaige” name in trade or commerce.
This case doesn’t just apply to businesses that hire influencers, but also extends to employees and other independent contractors. Recently, a Virginia newspaper filed suit against a former employee — a reporter — over a Twitter account that the employee developed and used to report on football games while working for the newspaper company.
The moral of the story is that all businesses should make sure there is a provision in their employment contracts, including those with independent contractors and influencers, that clarify ownership over all social media accounts and content.
If the business is considered the owner, the agreement should say so. In the event the employee is terminated or the contractual relationship ends, the agreement also should state that the employee or independent contractor or influencer must promptly surrender all usernames and passwords to the company.
Alexa Elder is an associate with Wyatt, Tarrant & Combs LLP. As a member of the firm’s Litigation & Dispute Resolution team, she assists with the representation of a broad range of clients in a variety of cases, including appellate practice, constitutional law, and commercial litigation.
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