Business Breakups 101: Who Owns the Socials?
In the many business breakups I’ve advised on over the last three years, control of social media accounts (“the socials”) has almost always been a central issue.
Since possession is nine tenths of the law, it is not uncommon for partners to hold company socials hostage, legally or illegally, in an effort to extract concessions from their partner(s) in a business breakup.
This is a difficult strategy to defeat if you are not in possession of the socials. Suing for ownership of the socials in court is a complex and uncertain process with multiple tests that are constantly changing across states.
Legal Standards for Ownership of Social Media Accounts
There are two standards for ownership of social media accounts:
The traditional chain of title test
The multi-factor subjective test
Traditional Chain of Title Test
Under the chain of title test, courts apply classic property-law principles: whoever originally created the account owns it, unless there’s a valid transfer or assignment to another party.
The Second Circuit appellate court’s 2024 decision in JLM Couture, Inc. v. Gutman, cemented this approach, holding that social-media accounts are no different from other intangible assets like domain names or trademarks.
Applying the traditional chain of title approach, the federal appellate court based in New York asked two simple questions: (1) who was the original owner, and (2) was ownership ever assigned?
If the founder, employee, or consultant created the account using their personal name, email, or phone and never signed an assignment, they likely own it, even if the company’s brand dominates the content.
Multi-Factor Subjective Test
Other courts, including those outside the Second Circuit (which covers New York, Connecticut and Vermont) still use a multi-factor test that examines control and use rather than merely chain of title.
Expect some courts to weigh some or all of the following factors, holistically, without clear guidance on the weights of each factor:
Who created and registered the account, and under whose name or credentials (e.g., company vs. personal email, phone, or business entity).
Whether the account was promoted as belonging to the company or to the individual (branding, handle, bio, and visual identity).
Who had access to and control over the login credentials during the relationship.
Whether the account was used primarily to market the company’s products or services versus the personal brand of the individual.
Who paid for the social-media management, advertising, or promotional activities tied to the account.
Whether there were any written agreements or policies addressing ownership or control (employment, consulting, partnership, or social-media policies).
What happened to the account after the relationship ended, i.e., whether it continued to represent the business or was rebranded as personal.
In In re Vital Pharmaceuticals, Inc., a Florida bankruptcy court weighed three elements: (1) documented ownership, (2) control over access, and (3) actual business use.
Earlier cases like PhoneDog v. Kravitz, in a California federal court, took a similar approach, treating followers, passwords, and business content as potential indicators of company ownership.
These fact-intensive, state-by-state, holistic methods produce unpredictable outcomes and leave businesses vulnerable to uncertain ownership of key assets when documentation is unclear.
Developing Case Law
In the United States, relatively few courts have weighed in on the question of social media ownership in the context of a business and its employees, consultants, founders, etc.
Among the few courts that have weighed the issue, the Second Circuit decision in JLM Couture stands out as the most prominent opinion on the matter. However, other appellate courts around the country could go the other way, rejecting the Second Circuit’s traditional property chain of title approach in favor of a holistic, multi-factor analysis embraced by other federal courts.
Therefore, it's difficult to predict how a court will rule on ownership of social media accounts in most jurisdictions. But remember that these confusing tests only need to come into play in situations where you have not clearly assigned all social media intangible assets to the company.
Pro Tip: Don’t rely on court-created legal standards to determine ownership of your company’s social media accounts. Instead, make ownership of the social media accounts clear as day in the company’s legal documents including employment and corporate documents.