The Original Instagram – Whose Property is it?

When a worker creates a personal social media account and then uses it to promote their employer, courts differ as to whether subsequent use for the employer can operate as an implied transfer of the account to the employer when the employment relationship ends. Allowing an implied transfer flies in the face of traditional contract and property law principles, and results in workers unknowingly giving up their right to a valuable asset they created. The better rule in determining ownership of a social media account is to first determine who owned the account at the time of original creation, and then determine whether a transfer occurred via a valid, express contract. This rule was recently adopted for the first time in JLM Couture, Inc. v. Gutman, 91 F.4th 91, 104 (2d Cir. 2024). This paper examines why this “Original Creation and Control” test is the better approach. The Original Creation and Control test promotes judicial economy, clarity and predictability. It also has the advantages of a property rule, namely encouraging investment, reducing litigation, and allowing employee mobility. This test achieves the proper balance between worker and employer rights and yields fair results in test cases. Additionally, a uniform law should be created based on the Original Creation and Control test to help promote uniformity across jurisdictions.