UNFOLLOWED: EXAMINING THE PROPERTY RIGHTS OF SOCIAL MEDIA
INFLUENCE IN DIVORCE PROCEEDINGS
Hamilton Leiser1
I. SOCIAL MEDIA’S GLOBAL REACH
Imagine a picture of an egg being worth ten million dollars. At least one digital marketing
agency is estimating exactly that.2 In January 2019, a then-anonymous person created an account on Instagram with a single goal: make a photo of an egg the most liked post on Instagram.3 Within
days, the post passed the previously most-liked post on Instagram, which was a picture of Kylie
Jenner’s infant daughter.4 As of February 3, 2019, the egg post has over fifty-two million likes,
with the account having over ten million followers.5 The account began to post pictures of the egg
with cracks, eventually revealing a video promoting mental health.6 This account’s influence as a
1. Hamilton Leiser is a 2020 candidate for Juris Doctor from SMU Dedman School of Law. He received a Bachelor of Business Administration from the University of Texas at Austin in 2016. Hamilton would like to thank Professor Weaver for her help and guidance on this Comment.
2. See Taylor Lorenz, The World-Record Instagram Egg Is Going to Make Someone Very Rich, THE ATLANTIC (Jan. 31, 2019), https://www.theatlantic.com/technology/archive/2019/01/race- monetize-world-record-instagram-egg/581686/.
3. See Jonah Engel Bromwich & Sapna Maheshwari, Meet the Creator of the Egg that Broke Instagram, N.Y. TIMES (Feb. 3, 2019), https://www.nytimes.com/2019/02/03/style/world-record- egg-instagram.html.
4. See id.
5. See id.
6. See Ben Tobin, We Finally Know What That Mysterious Egg Instagram Account Is All About: Mental Health, USA TODAY (Feb. 4, 2019), https://www.usatoday.com/story/tech/2019/02/03/world-record-egg-instagram-mental-health- awareness-campaign/2765315002/.
result of those numbers of likes and followers makes it worth $10 million.7 As social media spreads throughout all facets of society, the impact of its influence will begin to raise legal questions regarding the nature of social media influence. One such question arises in the context of divorce proceedings. How should a court address a spouse’s social media influence when deciding how to divide property in an equitable manner? Should that social media influence even be considered
property?
This Comment addresses the issue of valuing social media influence, and how to divide
that value in a divorce in Texas. While no court has directly addressed this issue, this Comment
presents various ways that social media influence has been valued and applies those valuation
principles to marital property and divorce proceedings in Texas. Part II defines social media
influence and how it operates. Part III discusses social media influence as property and how to
value social media influence. Finally, Part IV addresses social media influence in relation to
marriage property rights and how to divide the value of social media influence in a divorce
proceeding.
II. SOCIAL MEDIA INFLUENCE
A. What Is Social Media Influence?
Social media presence consumes modern society. A recent study found that over seventy percent of adults use at least one social media platform.8 In one fictional example of the power social media can have, characters from the show Black Mirror live in a society dictated by a social
7. See Lorenz, supra note 2.
8. Social Media Fact Sheet, PEW RES. CTR. (June 12, 2019), http://www.pewinternet.org/fact- sheet/social-media/.
rating system, much like Uber’s driver rating system.9 In another Black Mirror episode, society
gets to choose who will die based on who is trending using a specific hashtag on Twitter.10
However, unbeknownst to those who tweeted using the specific hashtag, everyone who used that
hashtag ended up dying as well.11 While the show Black Mirror has presented extreme examples
of the control social media has in our lives, it does recognize how big of a role social media plays
in modern society.12 For example, the leading social media platform, Facebook, has over 2.2
billion active users.13 It is no surprise that individuals would seek to profit using social media.14
Social media influencers are individuals who use social media platforms to influence their
followers or fans in making certain decisions.15 While some high-profile celebrities act as social
media influencers, many individuals do not have prior celebrity status before becoming a social
9. See Erin Brodwin, What Psychology Actually Says About the Tragically Social-Media Obsessed Society in ‘Black Mirror,’ BUS. INSIDER (Oct. 26, 2016), https://www.businessinsider.com/psychology-black-mirror-nosedive-social-media-2016-10.
10. See Lizzie Plaugic, Black Mirror’s Hated in the Nation Creates a World Where Everyone is at Fault, THE VERGE (Oct. 28, 2016), https://www.theverge.com/2016/10/28/13440972/black- mirror-season-3-episode-6-hated-in-the-nation-recap.
11. See Emily Todd VanDerWerff, Black Mirror Season 3, Episode 6: “Hated in the Nation” Has One True Villain—Creator Charlie Brooker. (Also, Bees.), VOX (Oct. 30, 2016), https://www.vox.com/culture/2016/10/21/13341528/black-mirror-episode-6-hated-in-the-nation- recap-review.
12. See Brodwin, supra note 9.
13. See Most Popular Social Networks Worldwide as of January 2019, STATISTA, (Sept. 6, 2019), https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users/.
14. See What is an Influencer?, INFLUENCER MARKETING HUB, https://influencermarketinghub.com/what-is-an-influencer/ (last visited Feb. 17, 2019).
15. See id.
media influencer.16 These influencers are generally individuals who have shown expertise and
knowledge in a certain area.17 The influencers use that expertise to guide their audience in making
decisions, relying on trust from their audience that the influencer knows what they are doing.18
Companies and advertising firms reach out to social media influencers to promote their brands and
products.19 These firms are willing to pay thousands of dollars for a single promotion.20
Following scandals such as the infamous Fyre Festival where social media influencers
promoted the failed festival without revealing that they were being paid for their promotions, social
media users called out these influencers for deceiving them.21 The Federal Trade Commission
(FTC) sent out reminders to social media influencers of the rules related to advertisements and paid promotions.22 The FTC explained that any influencer paid to promote a product for a sponsor
or brand must clearly state that his promotion is an advertisement.23 However, the FTC noted that
if an individual simply buys a product himself and chooses to promote that product, that individual
16. See id.
17. See id.
18. See id.
19. See Paris Martineau, Inside the Pricey War to Influence Your Instagram Feed, WIRED (Nov. 18, 2018), https://www.wired.com/story/pricey-war-influence-your-instagram-feed/.
20. See id.
21. See Zoe Kleinman, Has Fyre Festival Burned Influencers?, BBC NEWS (Jan. 22, 2019), https://www.bbc.com/news/46945662.
22. See id.
23. See The FTC’s Endorsement Guides: What People Are Asking, FED. TRADE COMM’N (Sept. 2017), https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what- people-are-asking.
does not need to disclose his promotion as an advertisement.24 The FTC provided a guideline with
many hypotheticals to help clarify the rules for social media users.25 This enforcement decision to
apply these rules against social media influencers was a result of traditional media advertisement
companies calling out these ads on social media as misleading because the influencers were not
admitting that they were being paid to promote products.26
While celebrity status and social media influence are quite similar, this Comment
distinguishes the two, focusing on social media influence. Celebrity status focuses on the influence
that a person himself may have, whereas social media influence focuses on the value of the
influence a person has through his social media account.27 However, as social media influence has
rarely been addressed by the courts, this Comment will address celebrity status as analogous to
social media influence.
i. Platforms
While the platforms are collectively grouped as social media, each platform for social media has unique characteristics that differ in usage. Likewise, the number of social media
24. See id.
25. See id.
26. See FTC Staff Reminds Influencers and Brands to Clearly Disclose Relationship, FED. TRADE COMM’N (Apr. 19, 2017), https://www.ftc.gov/news-events/press-releases/2017/04/ftc-staff- reminds-influencers-brands-clearly-disclose.
27. See What is an Influencer?, supra note 14.
platforms ranges from LinkedIn’s business profiles to Taylor Swift’s own social media platform
called “The Swift Life.”28 The following are some of the most used social media platforms.
The majority of users use Facebook as a personal page where an individual creates a profile
with information about him or herself.29 The user can upload photos and videos, post updates, and engage with other users.30 Facebook users have a Newsfeed that shows the activity of other users
with whom the user is Facebook friends with or pages that the user has liked.31 Approximately
69% of the U.S. adult population uses Facebook, with 74% of those users saying they log on to
Facebook daily.32 Facebook also allows individuals or organizations to create a “Page” where that
individual or organization can promote nearly anything.33 Bands will use Pages to provide updates,
as well as create Events to which users can virtually RSVP.34 Companies create Pages to promote
28. See Beatrice Hazlehurst, Taylor Swift’s App ‘The Swift Life’ is Your New Social Network Destination, PAPER MAGAZINE (Dec. 18, 2017), http://www.papermag.com/taylor-swift-social- network-app-1-2518429837.html.
29. See Leslie Walker, How to Set Up Facebook, LIFEWIRE (June 24, 2019), https://www.lifewire.com/tutorial-how-facebook-works-2654610.
30. See id.
31. See id.
32. Social Media Fact Sheet, supra note 8.
33. See Facebook Pages, FACEBOOK, https://www.facebook.com/business/pages (last visited Mar. 10, 2019).
34. Id.
their products and engage with their audience.35 Facebook users can browse these Pages and
choose to ‘like’ the Page to receive updates on the user’s own Timeline.36
Facebook recently launched its Brand Collabs Manager, a search engine designed to
connect marketers to social media influencers.37 The search engine will allow brands to search for
specific audiences and connect with a social media influencer in that demographic.38 Additionally,
Brand Collabs Manager can break down key demographics of a social media influencer’s audience, allowing a brand to establish more specifically targeted ads.39 Beyond the Brand Collabs
Manager, Facebook also created a mobile application called Facebook Creator, designed to help
social media influencers.40 Facebook Creator allows users to edit videos, cross-post the videos to
other social media platforms, receive Facebook and Instagram messages, and use other features
that help social media influencers engage with their audiences.41 The launch of these features show
35. Id.
36. Id.
37. See Richard Wong, Influencer Marketing is Going Mainstream with Facebook’s Upcoming Tool, GEOMARKETING (June 21, 2018), https://geomarketing.com/influencer-marketing-is-going- mainstream-with-facebooks-upcoming-influencer-tool.
38. See id.
39. See id.
40. See Josh Constine, Facebook Launches Creator App for Influencers to Build Video Communities, TECHCRUNCH (Nov. 16, 2017), https://techcrunch.com/2017/11/16/facebook- creator-app/.
41. See id.
how Facebook understands the growing impact social media influencers have and seeks to be a
leader in hosting these influencers.42
While only 22% of U.S. adults report using Twitter, this platform remains very
influential.43 The President of the United States uses Twitter regularly to address the nation.44
Likewise, many reporters share breaking news via Twitter.45 Even terrorist organizations have
used Twitter for recruiting.46 Twitter is considered a micro-blog where users can ‘tweet’ using up
to 280 characters per post.47 Users can also share links, photos, or videos.48 One major feature of
Twitter is the use of hashtags.49 Users can post these using the # symbol, along with a word or phrase.50 The more users that post a certain hashtag, the more that hashtag starts to trend on the
42. See Wong, supra note 37.
43. Social Media Fact Sheet, supra note 8.
44. See Donald Trump (@realDonaldTrump), TWITTER, https://twitter.com/realDonaldTrump (last visited Sept. 29, 2019).
45. See Jack Coyle, Is Twitter the News Outlet for the 21st Century?, ABC NEWS (Jul. 1, 2009), https://abcnews.go.com/Technology/story?id=7979891&page=1.
46. See Don Reisinger, Twitter Has Suspended 1.2 Million Terrorist Accounts Since 2015, FORTUNE (Apr. 5, 2018), http://fortune.com/2018/04/05/twitter-terrorist-account-suspensions/.
47. See How to Use Twitter: Critical Steps for New Users, WIRED (Aug. 29, 2018), https://www.wired.com/story/how-to-setup-twitter-search-hashtag-and-login-help/.
48. See id.
49. See How to Use Hashtags, TWITTER, https://help.twitter.com/en/using-twitter/how-to-use- hashtags (last visited Sept. 29, 2019).
50. Id.
platform.51 Users can follow certain trends by searching for a specific hashtag.52 Social media
influencers have taken advantage of hashtags to influence others and promote themselves.53
Snapchat
Snapchat is a unique social media platform where users can send a photo or video to other
users that disappears after the receiving user opens the photo or video.54 A user can set a time limit up to ten seconds, or allow the other user to keep the photo open for as long as he likes.55 However, once the user clicks out of the photo or video, it is gone forever.56 Snapchat also allows users to
post photos or videos as their story, where it remains visible for twenty-four hours.57 In response
to declining popularity, Snapchat began adding featured stories tailored to a user’s interests. 58 One
recent feature is the ability to choose between different topics to find relevant stories.59 A user can
choose to subscribe to certain story publishers or can choose to hide certain story publishers if the
51. Id.
52. See id.
53. See id.
54. See Kailla Coomes & Brie Barbee, How to Use Snapchat, DIGITAL TRENDS (Sept. 14, 2018), https://www.digitaltrends.com/social-media/how-to-use-snapchat/.
55. See id.
56. See id.
57. See id.
58. See Nicolas Miachon, What Snapchat Teaches Us About Influencer Marketing, FORBES (Apr. 27, 2018,), https://www.forbes.com/sites/forbescommunicationscouncil/2018/04/27/what- snapchat-teaches-us-about-influencer-marketing/#7162f45c635c.
59. See William Sattelberg, How to Use the New Discover Tab in the Redesigned Snapchat App, TECH JUNKIE (Jan. 11, 2018), https://www.techjunkie.com/use-new-discover-tab-redesigned- snapchat-app/.
user does not wish to see that content on his Discover page.60 Social media influencers can choose
to post promotions or personal content on their public story where any follower can then view.61
Rising in popularity the past few years, Instagram has become one of the most-used social media platforms in 2018 with 35% of the U.S. adult population using it.62 Instagram operates
around the sharing of photos and videos.63 Users can upload photos, edit those photos using
Instagram’s own filters and editing tools, and then share the photos with their followers.64 Like
Twitter, Instagram users can add hashtags that allow those posts to show up when a user searches
a certain hashtag.65 Companies and other organizations have begun using Instagram as a method
to connect with their audiences.66 A recently-added feature to Instagram is the Stories feature
where a user can post a photo that lasts twenty-four hours and then disappears, much like
60. See id.
61. See Miachon, supra note 58.
62. See Social Media Fact Sheet, supra note 8.
63. See Elise Moreau, What is Instagram, Anyway?, LIFEWIRE (Nov. 19, 2018), https://www.lifewire.com/what-is-instagram-3486316.
64. See id.
65. See Elise Moreau, Popular Tags for Instagram That You Should Be Using, LIFEWIRE (Jan. 30, 2019), https://www.lifewire.com/popular-tags-for-instagram-3486313.
66. See Sujan Patel, 25 Fantastic Examples of Brands Using Instagram, ENTREPRENEUR (Oct. 24, 2016), https://www.entrepreneur.com/article/283615.
Snapchat’s Story feature.67 Instagram added features such as polling and adding comments that
allows users to interact with a story.68
Instagram cultivates a large social media influencer presence.69 Many influencers focus on
advertising certain products in their posts on Instagram.70 Some influencers charge up to $100,000
per post.71 Instagram includes a feature to indicate whether a post is an advertisement by allowing the user creating the post to include a note at the top of the post stating that it is a paid partnership and can include the brand paying the user to create that post.72
YouTube
Although not as socially interactive as most platforms, YouTube ranks as the most-used social media platform by U.S. adults at 73% in 2018.73 YouTube allows users to upload videos
that other people can then view and share.74 The most-viewed YouTube video, Luis Fonsi -
67. See Moreau, supra note 63.
68. See Introducing Polls in Instagram Stories, INSTAGRAM (Oct. 3, 2017), https://instagram- press.com/blog/2017/10/03/introducing-polls-in-instagram-stories/.
69. See Martineau, supra note 19.
70. See id.
71. See Chavie Lieber, How and Why Do Influencers Make So Much Money? The Head of an Influencer Agency Explains, VOX (Nov. 28, 2018), https://www.vox.com/the- goods/2018/11/28/18116875/influencer-marketing-social-media-engagement-instagram-youtube.
72. See Elise Hoggard, How To… Use Instagram’s New Paid Partnership Tool, COLLABARY (Oct. 6, 2017), https://www.collabary.com/blog/use-instagrams-new-paid-partnership-tool/.
73. See Social Media Fact Sheet, supra note 8.
74. See Jerri Collins, What is YouTube? How Do I Use It?, LIFEWIRE (Dec. 18, 2018), https://www.lifewire.com/youtube-101-3481847.
Despacito ft. Daddy Yankee, has over six billion views.75 YouTube influencers generally choose
to sponsor certain products in their videos for payment.76 Similarly, these influencers will
collaborate to create their own brands and sell clothing or other products that their followers will
buy simply because of the influencer’s name behind the product.77 Finally, using Google’s
AdSense platform, users can include ads in their videos that earn money based on engagement of
those ads, adding yet another way YouTube influencers make money using the platform.78
ii. Types
While the range of social media platforms appears large, the types of social media influence
are even greater.79 One of the most prevalent types of social media influence involves advertising
products.80 Within this category, many subcategories exist depending on the type of product.81 For
75. See Luis Fonsi, Luis Fonsi – Despacito ft. Daddy Yankee, YOUTUBE (Jan. 12, 2017), https://www.youtube.com/watch?v=kJQP7kiw5Fk&t=0s&index=2&list=PLirAqAtl_h2r5g8xGaj EwdXd3x1sZh8hC.
76. See Martineau, supra note 19.
77. See Natalie Robehmed & Madeline Berg, Highest-Paid YouTube Stars 2018: Markiplier, Jake Paul, PewDiePie, and More, FORBES (Dec. 3, 2018), https://www.forbes.com/sites/natalierobehmed/2018/12/03/highest-paid-youtube-stars-2018- markiplier-jake-paul-pewdiepie-and-more/#723fee2d909a.
78. See Eric Rosenberg, How YouTube Ad Revenue Works, INVESTOPEDIA (Oct. 7, 2018), https://www.investopedia.com/articles/personal-finance/032615/how-youtube-ad-revenue- works.asp.
79. See Audrey Schomer, The Influencer Marketing Report: Research, Strategy & Platforms for Leveraging Social Media Influencers, BUS. INSIDER (Sept. 24, 2018), https://www.businessinsider.com/the-influencer-marketing-report-2018-1.
80. See id.
81. See id.
example, many Instagram influencers will promote beauty or fashion products.82 In addition, many
Instagram influencers will promote hotels or other travel destinations.83 This category has been
criticized for being overcrowded with many individuals seeking to become influencers simply by
traveling.84 Another major category, promoting restaurants by posting photos of food, has been
the end of many jokes of those critical of Instagram.85 However, these promotions prove very
valuable for restaurant owners.86
Although the primary monetary value of social media influence comes from promoting products through advertising payments, social media has allowed individuals to grow influence
through other means as well.87 For example, an individual who goes by PewDiePie, posts videos
on YouTube generally related to commenting on video games.88 Rather than promoting products,
his rise in influence came from entertaining commentary that propelled him to over fifty million
82. See Catherine Claire, How Social Media Has Changed Fashion, ADWEEK (Dec. 22, 2017), https://www.adweek.com/digital/catherine-claire-guest-post-how-social-media-has-changed- fashion/.
83. See Michelle Baran, Under the Influence, TRAVEL WEEKLY, https://www.travelweekly.com/Travel-News/Travel-Technology/social-media-influencers (last visited Mar. 10, 2019).
84. See Taylor Lorenz, Instagram’s Wannabe-Stars Are Driving Luxury Hotels Crazy, THE ATLANTIC (June 13, 2018), https://www.theatlantic.com/technology/archive/2018/06/instagram- influencers-are-driving-luxury-hotels-crazy/562679/.
85. See Lizzie Saxe, How Are Food Influencers Changing the Restaurant World, FORBES (Dec. 7, 2018), https://www.forbes.com/sites/lizzysaxe/2018/12/07/are-food-influencers-the-restaurant- world/#646027226ce1.
86. See id.
87. See Robehmed & Berg, supra note 77.
88. See id.
followers.89 Like PewDiePie, many individuals such as Tyler Blevins, who goes by Ninja on social
media, established their fame through a streaming service called Twitch.90 Twitch allows users to
stream themselves playing video games and allows other users to watch live.91 Twitch has millions
of users who will watch the top players stream themselves playing video games.92 These top
players will generally include advertisements in their videos as a way to make money using their
influence.93 Because the categories of social media influence ranges so greatly, it is no surprise
that the influencer market is worth billions of dollars.94
III. SOCIAL MEDIA INFLUENCE & PROPERTY RIGHTS
A. Establishing Social Media Influence as Property
Black’s Law Dictionary defines property as “the rights in a valued resource.”95 Property
interests can include both tangible and intangible property, such as physical objects like a home,
to copyrights and goodwill.96 Although no court has addressed social media influence as a property
right, courts have recognized rights in similar forms of property to social media influence.97
89. See id.
90. See id.
91. See Steven Asarch, What is Twitch? Understanding the Explosive Live-Streaming Service, NEWSWEEK (May 3, 2018), https://www.newsweek.com/2018/05/11/twitch-909594.html.
92. See id.
93. See id.; see also Robehmed & Berg, supra note 77.
94. See Schomer, supra note 79.
95. Property, Black’s Law Dictionary (10th ed. 2014).
96. See id.
97. See In re CTLI, LLC, 528 B.R. 359, 367 (Bankr. S.D. Tex. 2015).
i. Social media influence as property
Because no court has specifically addressed social media influence as property, this section addresses property rights with similar characteristics to social media influence.
a. Persona
Most states recognize a property interest in the persona.98 The persona is “the interest of
the individual in the exclusive use of his own identity, in so far as it is represented by his name or
likeness, and in so far as the use may be of benefit to him or to others.”99 The persona is similar to
social media influence in that a social media influencer is using his own identity for the benefit to
himself or others.100 Courts have found individuals liable when they use another’s persona for their
own gain.101 One court noted that the liability is intended to protect the value to that person’s name.102
In White v. Samsung, the Ninth Circuit looked at whether a celebrity has rights to his or her
persona.103 In that case, Samsung posted an advertisement for its VCR using a robot dressed and
standing similarly to Vanna White’s appearance.104 The ad also featured a board similar to the
98. See id.
99. Brown v. Ames, 201 F.3d 654, 658 (5th Cir. 2000).
100. See In re CTLI, LLC, 528 B.R. at 367.
101. See Matthews v. Wozencraft, 15 F.3d 432, 437 (5th Cir. 1994).
102. See id.
103. See White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992).
104. Id. at 1396.
Wheel of Fortune board.105 White argued that the ad used her likeness without her consent and
exploited her persona.106 The court held that the district court had erred in granting summary
judgement for Samsung and remanded the case to be heard before a jury.107 In its opinion, the court noted that “[t]elevision and other media create marketable celebrity identity value” that only the celebrity has the right to use.108 However, the court then shifted its focus on whether Samsung
violated that right in its advertisement.109 The court did not conclude one way or the other, but did
require the case to be heard by a jury.110 Similar to White, a social media influencer has a persona
he uses for his own gain. That persona contributes to his success as an influencer.
b. Goodwill
Another approach to treating social media influence as property comes in the form of
goodwill. Black’s Law Dictionary defines goodwill as an intangible form of property that includes
a business’s “reputation, patronage, and other intangible assets.”111 As an intangible form of
property, courts have struggled with how to treat goodwill. Courts generally distinguish goodwill
105. Id.
106. Id. at 1397.
107. Id. at 1402.
108. Id. at 1399.
109. White, 971 F.2d at 1399.
110. Id. at 1402.
111. Goodwill, Black’s Law Dictionary (10th ed. 2014).
in four categories: commercial versus professional and personal versus enterprise.112 Commercial
goodwill is simply the goodwill “from a commercial establishment” while professional goodwill
is “attached to the individual.”113 Personal goodwill focuses on the “relationships, knowledge, and skill of the individual” and that individual’s “reputation” while enterprise goodwill is associated with the business separate from the owners.114 However, both New York and New Jersey have
recognized a unique form of goodwill called celebrity goodwill.115 Celebrity goodwill focuses on
an “enhanced earning capacity of an individual based on his or her status or fame.”116 Celebrity
goodwill essentially treats the business and individual as one in terms of goodwill.117
Celebrity goodwill and social media influence are strongly analogous in their
characteristics.118 As a social media influencer, that individual uses his connections through
followers and his knowledge and skill to influence others to make certain decisions or purchases.119
Treating the account as the business and the influencer who owns the account as the individual,
112. See Ericka Evans, A “Little Ditty About Jack and Diane”: Why Jackie’s Good Name Should be Considered Community Property in California Under the Concept of “Celebrity Goodwill”, 17 CHAP. L. REV. 633, 636 (2014).
113. Id.
114. Id.
115. See id. at 634.
116. Id.
117. Id. at 637.
118. See id.
119. See Schomer, supra note 79.
the two are intertwined and depend on each other to produce value.120 Without the personal
goodwill aspect of celebrity goodwill, the business would not have any value.121 Because the social
media account is directly linked to the person who owns the account, that person’s character traits
that add value to the account create value for the influencer’s business of making money through
advertisements and promotions. Since the social media influencer’s personal characteristics add
direct value to his business, that influence should be treated as celebrity goodwill.122
ii. Social media accounts as property
One of the leading cases discussing social media accounts and property rights, In re CTLI,
LLC, held that social media accounts are property in the context of a bankruptcy estate.123 In this case, a business owner gave a minority interest of his business to a friend.124 The business then
filed for bankruptcy, and the bankruptcy court granted a Chapter 11 plan that gave the friend full
ownership of the business.125 The court ordered the former owner to transfer the passwords of the
social media accounts operated for the business.126 However, the former business owner refused,
forcing the court to find him in contempt.127 The former owner alleged that turning over the social
120. See In re CTLI, LLC, 528 B.R. at 367.
121. See Evans, supra note 112.
122. See id.
123. See In re CTLI, LLC, 528 B.R. at 359.
124. Id. at 362.
125. Id.
126. Id.
127. Id. at 363.
media accounts would violate his privacy.128 The court held that the social media accounts belong to the company’s estate, so the business, run by the friend, is entitled to the social media accounts.129
The court first recognized that no Texas court has addressed “whether social media
accounts are property interests.”130 The court then determined that given the broad scope of § 541 of the Bankruptcy Code’s definition of property, social media accounts are property interests.131
The court reasoned that social media accounts function similarly to subscriber lists that “provide
valuable access to customers and potential customers.”132 However, the court then distinguished
personal social media accounts from business social media accounts.133 The court recognized
personal social media accounts as related to the interest of a persona.134 The court defined a persona
as “the interest of the individual in the exclusive use of his own identity, in so far as it is represented
by his name or likeness, and in so far as the use may be of benefit to him or others.”135 However, the court associated the persona as belonging to that of a celebrity or other public figure.136 The
128. Id.
129. In re CTLI, LLC, 528 B.R. at 363.
130. Id. at 366.
131. Id.
132. Id. at 367.
133. Id.
134. Id.
135. In re CTLI, LLC, 528 B.R. at 367.
136. Id.
court did not address social media influencers who may not be considered celebrities or other
public figures. The court then focused its attention on business social media accounts applying to
the facts of the case.137
In PhoneDog v. Kravitz, another case addressing ownership of social media accounts, the
court allowed claims from an employer to go forward against a former employee’s use of a social
media account.138 While working for PhoneDog, the employee, Noah Kravitz, created a Twitter
account with the username @PhoneDog_Noah, which he used to provide written and video content
to PhoneDog’s users.139 During his time at PhoneDog, the Twitter account acquired over 17,000
followers.140 Once the employee left PhoneDog, the company requested that he turn over his
Twitter account and password.141 However, Kravitz changed the username to @noahkravitz and
continued to operate the account for his personal use.142 PhoneDog alleged that the account
belonged to the company and that the followers of the Twitter account were trade secrets that also
belonged to the company.143 Kravitz sought to have the claims dismissed, arguing that there is no
precedent for a former employee not being allowed to change his Twitter username.144 However,
137. See id.
138. See PhoneDog v. Kravitz, No. C 11-03474, 2011 WL 5415612, at *1 (N.D. Cal. Nov. 8, 2011).
139. Id.
140. Id.
141. Id.
142. Id.
143. Id.
144. PhoneDog, 2011 WL 5415612 at *4.
the court rejected most of Kravitz’s motions to dismiss PhoneDog’s claims.145 The court did note
that it could not resolve whether PhoneDog had any property interest in the Twitter account at that
point in the case.146 Ultimately, PhoneDog and Kravitz settled the case without addressing whether
PhoneDog had any property right to the Twitter account.147 Interestingly, the settlement allowed
Kravitz to continue using the Twitter account.148 While this case did not reach a conclusion
regarding a property right to the Twitter account, the court was willing to acknowledge the
potential ownership in a business setting.149 Because social media accounts have ownership through the social media platforms, it is clear that social media accounts should be treated as property.150
iii. Issues with social media influence as property
While social media influence should be treated as property, there are valid arguments against social media influence as property.151 First, it can be very difficult to identify actual
influence.152 For example, a social media influencer may have 100,000 followers but how many
of those followers does the influencer actually “influence”? Likewise, a social media influencer
145. Id. at *10.
146. Id. at *5.
147. David A. Bell, Social Media Accounts and Ownership Rights, CORP. COUNS. REV., May 2014, at 1, 10.
148. Id.
149. Id.
150. In re CTLI, LLC, 528 B.R. at 365.
151. Lieber, supra note 71.
152. Id.
may have one Instagram post or YouTube video that influences hundreds of thousands of people
but then have another post that influences much fewer people.153 Marketing agencies attempt to
overcome this issue using algorithms that examine factors such as “views, likes, engagement rates,
watch times, click-through rates, comments” and others.154 The agencies then use this data to
create an engagement percentage assigned to a social media influencer.155 Agencies use this
percentage to roughly estimate the value of a social media influencer.156 Thus, because the social
media influence can be valued using physical metrics, the influence should be considered property
even if the value is a rough estimate.
B. Valuation of Social Media Influence
Once social media has been established as property, the issue then arises of how to value social media influence. While the value provided from marketing agencies and brands paid to the social media influencer is straight-forward, the actual influence that an individual’s social media
presence possesses must also be factored in.157 The marketing agency approach looks at how
agencies value social media influencers by how they actually pay an influencer to promote their
153. Id.
154. Id.
155. See id.
156. See id.
157. Lieber, supra note 71.
product or brand.158 The valuation proposal examines other methods of valuing social media influence through cost, market, and income approaches.159
While social media influence collectively has value, two distinct property rights can be
derived from social media influence.160 First, the social media account itself has value as property, according to In re CTLI, LLC.161 The intangible influence has property value as well.162 However, for purposes of valuation of social media influence, these distinctions are unnecessary in the case of the average social media influencer.
i. Marketing agency approach
Because social media influence has grown tremendously as an industry, agencies have become dedicated to connecting these social media influencers with brands.163 These marketing
agencies will work with brands to find social media influencers in a particular niche to advertise
their products.164 In an interview with Business Insider, Brittany Hennessy, senior director of
influencer strategy and talent partnerships at Hearst Digital Media, described her formula for
158. Myelle Lansat, A Woman Who Pays Instagrammers and YouTubers $500 to $30,000 Per Post on Behalf of Brands Like Cosmo and Esquire Has a Go-To Formula for Calculating What They’re Worth, BUS. INSIDER (Aug. 9, 2018), https://www.businessinsider.com/how-instagram-youtube- influencers-are-paid-2018-8.
159. John G. Loughnane, David Plastino, & Evan Altman, Valuation of Social Media Assets, AM. BANKR. INST. J., Dec. 2015, at 36.
160. Id.
161. In re CTLI, LLC, 528 B.R. at 366.
162. See, e.g., Golub v. Golub, 527 N.Y.S.2d 946, 949 (Sup. Ct. 1988).
163. See Martineau, supra note 19.
164. See id.
paying social media influencers.165 First, she pays influencers based on the production costs, which include an hourly rate for meeting with a talent agent, going over the campaign goals, as well as the actual photo shoot.166 Secondly, she pays influencers based on their engagement with their audience, including the number of followers and the skills related to posting and engaging with their audience.167 Like Hennessy, many other agencies value social media influence on metrics such as audience engagement, follower count, and photo and video talent.168 However, these methods for valuing social media influence focus only on a single post or particular marketing campaign and do not consider the future potential of a social media influencer.169 Because social media influencers tend to grow in popularity, valuing an influencer based on the earnings from one marketing campaign or ad may not recognize the potential earnings that an influencer may receive if his popularity increases.170
ii. Valuation proposal
While the marketing agency approach to valuing social media influence appears straightforward, that approach looks at the value for a single advertisement.171 This approach does not apply well in divorce proceedings where a court must look at future earnings to determine an
165. See Lansat, supra note 158.
166. See id.
167. See id.
168. See id.
169. See id.
170. Lieber, supra note 71.
171. Id.
equitable division of property.172 Valuation of Social Media Assets presents three valuation
approaches for social media assets: the cost approach, market approach, and income approach.173
The cost approach for valuing intangible assets like social media influence focuses on the
idea that one would not pay more for an asset than the cost to create that asset.174 The cost approach
follows three different types of costs: historical, replacement, and reproduction costs.175 First, historical costs look at the cost originally spent acquiring the asset.176 Next, replacement costs look at the cost to replace the asset with an equivalent in value.177 Lastly, reproduction costs look at the
cost to create an exact replica of the asset.178 Observers note that while the cost approach has its
advantage in simplicity, it does not include any future projections in its valuation, limiting its
accuracy in capturing the true value of the asset.179 This valuation method will likely not produce
accurate value, as social media influence tends to grow over time.180
172. Id.
173. Loughnane, Plastino, & Altman, supra note 159, at 36.
174. Id.
175. Id. at 37.
176. Id.
177. Id.
178. Id.
179. Loughnane, Plastino, & Altman, supra note 159, at 37.
180. Id.
The market approach for valuing intangible assets focuses on the value of an equivalent
asset in the market.181 However, this approach is difficult because it is rare to find an equivalent
intangible asset that has already been valued.182 As a practical application for social media
influence, one could look to see whether an influential social media account has been sold and then
apply the value of that transaction to other social media accounts, proportionately adjusting the
value based on the number of followers.183 However, public records of the sale of social media
accounts are scarce, and at least one social media platform bans the selling of accounts in its Terms
of Service.184
The income approach for valuing an intangible asset calculates future cash flows and then
discounts them to present-day values.185 Using analytical data, this approach provides the most accurate value of social media influence because it looks to the future to predict value based on estimated growth.186 However, even this approach could prove unreliable with today’s volatility
in social media influence. One tweet could skyrocket an account’s influence, or even crush it.187
181. Id.
182. Id.
183. Id.
184. See The Twitter Rules, TWITTER, https://help.twitter.com/en/rules-and-policies/twitter- username-squatting (last visited Mar. 13, 2019).
185. See Loughnane, Plastino, & Altman, supra note 159, at 37.
186. Id.
187. Id. at 99; see, e.g., Tucker Higgins & Kevin Breuninger, ABC Cancels ‘Roseanne’ After Roseanne Barr Compares Black Obama Aide Valerie Jarrett to an Ape, CNBC (May 30, 2018,), https://www.cnbc.com/2018/05/29/abc-cancels-roseanne-barrs-sitcom-after-her-tweet-about- black-obama-aide-valerie-jarrett.html.
Even less direct acts can affect an influencer’s career. For example, as a result of the college
admissions scandal involving celebrity Lori Loughlin, Sephora cut ties with her daughter Olivia
Jade Giannulli, a social media influencer with over three million followers.188 While it was her mom who actually orchestrated the bribery scheme, Giannulli was negatively impacted as an
influencer.189 Ultimately, as discussed later in this comment, a valuation expert should be retained to determine an appropriate value for the social media influence.
IV. SOCIAL MEDIA INFLUENCE WITHIN MARRIAGE AND DIVORCE
A. Types of Property Rights in Marriage
States generally follow two different principles for marriage.190 Most states are common
law states that grant property interests based on who has title to the property.191 Nine states follow
community property rights stemming from Spanish laws.192 The community property states hold
that any property acquired during marriage belongs to both spouses equally.193 However, some
188. See Matthew Kazin, College Admissions Scandal: Sephora Cuts Ties with Loughlin Daughter Olivia Jade, FOX BUS. (Mar. 14, 2019), https://www.foxbusiness.com/retail/college-admissions- scandal-sephora-cuts-ties-with-loughlin-daughter-olivia-jade.
189. See id.
190. See James Chen, Common Law Property, INVESTOPEDIA (May 12, 2018), https://www.investopedia.com/personal-finance/which-states-are-community-property-states/.
191. See id.
192. See Will Kenton, Community Property, INVESTOPEDIA (Aug. 24, 2018), https://www.investopedia.com/terms/c/communityproperty.asp.
193. See e.g., TEX. FAM. CODE ANN. § 3.002 (West 2006).
exceptions apply when one spouse receives property as a gift during the marriage.194 In that case,
the gift is generally considered separate property owned solely by the spouse who received it.195
i. Common law property states
Common law states follow the rationale that property belongs to the person who holds title
to that property, regardless of when it was obtained.196 Thus, during marriage, if one spouse
acquires property, it is considered the property of that spouse only.197 The title theory states that
whoever has title to the property owns it, regardless of whether that person has a spouse or acquired
the property during marriage.198
ii. Community property states
Texas and eight other states have community property laws for marriage.199 Community
property states follow the rationale that any property acquired during marriage is treated as
property of both spouses equally, regardless of which spouse acquired the property.200 However,
any property acquired prior to marriage is considered separate property.201 Furthermore,
community property states generally consider property received as a gift or inheritance to one
194. See Chen, supra note 190.
195. See id.
196. See id.
197. See id.
198. See id.
199. See Tim Parker, Community Property State, INVESTOPEDIA (July 13, 2017), https://www.investopedia.com/personal-finance/which-states-are-community- property-states/.
200. See e.g., TEX. FAM. CODE ANN. § 3.002 (West 2006).
201. See e.g., id. § 3.001.
spouse as separate property belonging to that spouse, even if obtained during marriage.202
Community property states also include ways in which separate property can become community property.203 For example, if a spouse mixes separate property with community property to generate income, that income becomes community property.204
B. How Property is Split in Divorces
Common law property states and community property law states divide property differently during a divorce.205 However, nearly all states have statutes that allow divorce courts to have some flexibility in their authority to divide property.206 Some states follow an approach where all property, even if acquired prior to marriage, can be divided by the court.207 Other states, including both common law and community property states, follow an approach where the court determines what is separate property and marital property (community property in community property states), and then only divide the marital property.208 However, courts do not have a consensus on how to divide the marital property.209 Some courts divide the marital property evenly, while others divide
202. See id.
203. See Can Separate Property Become Community Property?, MY FAMILY LAW, http://myfamilylaw.com/library/faq-can-separate-property-become-community- property/?more=yes (last visited Mar. 18, 2019).
204. See id.
205. See HARRY D. KRAUSE & DAVID D. MEYER, FAMILY LAW IN A NUTSHELL 315-16 (5th ed. 2007).
206. See id.
207. Id. at 316.
208. Id. at 316–17.
209. Id.
the property equitably.210 For example, Texas, a community property state, gives the court authority to divide property in an equitable manner.211
C. Dividing Social Media Influence in Divorces
Because there are no cases examining social media influence in divorces, this section examines cases regarding similar forms of property such as celebrity status, licenses, goodwill, and other types of divorce cases and then provides a recommendation on how to value social media influence in divorces and what factors should be considered in the division of social media influence. This section examines cases with analogous characteristics as to how courts should treat social media influence. Licenses, celebrity status, and goodwill all provide unique similarities to social media influence as it relates to marital property and division of that property in divorce proceedings.212
i. Licenses & celebrity status
While no court has specifically addressed social media influence as property, some courts have established that celebrity status can be marital property.213 In O’Brien v. O’Brien, the New
York Court of Appeals established the groundwork for celebrity status treated as marital property.214 In that case, the husband obtained a medical degree during his marriage while the wife gave up opportunities to obtain her own certification while working jobs to support their
210. Id. at 317.
211. See TEX. FAM. CODE ANN. § 7.001 (West 2006).
212. See generally Evans, supra note 110, at 634.
213. See id.
214. See O'Brien v. O'Brien, 489 N.E.2d 712, 713 (N.Y. 1985).
expenses.215 The court held that the license was marital property because it was acquired during
marriage, and that each partner deserves an equitable distribution of marital assets.216 The court
determined that the license had value because it represented the “money, effort, and lost
opportunity for employment” by the wife and gave the husband an “enhanced earning capacity.”217
The court treated the license as similar to goodwill and then determined that it had marital value
that should be split in a divorce.218
Following that decision, the New York Supreme Court applied the reasoning in O’Brien to
Golub v. Golub where the court held that celebrity status is marital property.219 The court reasoned that celebrities have an enhanced earning capacity because they have “tremendous potential for financial gain from the commercial exploitation of famous personalities” and that because the other spouse contributed to the celebrity spouse’s career, the other spouse deserved a fair portion of the value of the celebrity spouse’s future earnings.220 Later on, in Elkus v. Elkus, a New York court
held that a husband’s contributions to the value of his wife’s career deserve equitable distribution
in a divorce.221 However, ten years later in Sterling v. Sterling, a New York Supreme Court shifted
direction and determined that celebrity status as marital property only applies to individuals who
215. Id. at 713–14.
216. Id. at 713.
217. Id. at 717.
218. Id. at 718.
219. See Golub v. Golub, 527 N.Y.S.2d 946, 950 (N.Y. Sup. Ct. 1988).
220. Id. at 949.
221. See Elkus v. Elkus, 572 N.Y.S.2d 901, 901 (N.Y. App. Div. 1991).
become famous celebrities.222 In that case, the wife became merely an “average entertainer.”223
The court reasoned that because she did not become more successful in her acting career, she did
not have an enhanced earning capacity.224 Because she did not have the enhanced earning capacity,
she did not have the celebrity status that the husband would have been entitled to a portion of as marital property.225 While celebrity status and social media influence have many similarities, the
reasoning made by New York courts indicates that most social media influencers who are not
considered famous celebrities would likely not be considered to have an enhanced earning
capacity.226 Thus, those social media influencers would not have a marital property right in their influence that would otherwise have been divided in a divorce.227
ii. Goodwill
While courts have had trouble simply defining goodwill as property, courts have had even
more trouble determining whether goodwill should be treated as marital property that can be
divided in a divorce proceeding.228 The Supreme Court of Kentucky acknowledged that valuing
goodwill of a business “has been a source of contention for many years.”229 The Supreme Court
222. See Sterling v. Sterling, 2001 WL 968262, at *1 (N.Y. Sup. Ct. July 31, 2001), aff'd as modified, 757 N.Y.S.2d 530 (2003).
223. Id. at *5.
224. Id. at *6.
225. See id.
226. See id.
227. See id.
228. See Gaskill v. Robbins, 282 S.W.3d 306, 312 (Ky. 2009).
229. See id.
of Appeals of West Virginia addressed the issue of how to treat enterprise goodwill and personal
goodwill in the marriage context.230 That court recognized three different approaches to how courts
have treated the two types of goodwill.231 The first approach is to not distinguish between enterprise and personal goodwill, treating them both as marital property.232 The court quotes Poore
v. Poore, where a North Carolina court described goodwill in depth.233 In Poore, the court focused
on the issue of valuing the goodwill of the husband’s dental practice.234 The lower court did not
take into consideration the value of goodwill.235 The Court of Appeals recognized that goodwill
“is an intangible asset which defies precise definition and valuation” but that “it has value.”236 The
court then sent the case back to the lower court to include the value of goodwill.237
The Supreme Court of Appeals of West Virginia later recognized that a small minority of
states have determined that neither enterprise nor personal goodwill should be marital property.238
230. See May v. May, 589 S.E.2d 536, 540 (W.Va. 2003).
231. Id. at 542.
232. Id. at 543.
233. See Poore v. Poore, 331 S.E.2d 266, 271 (N.C. Ct. App. 1985).
234. See id at 268.
235. See id. at 269.
236. Id. at 271.
237. Id. at 422.
238. May v. May, 589 S.E.2d 536, 544 (W. Va. 2003).
The Mississippi Supreme Court rejected including goodwill in the valuation of a professional
business in divorce settings.239
Finally, The Supreme Court of Appeals of West Virginia acknowledged that the majority
of states treat enterprise goodwill as marital property but personal goodwill as non-marital property.240 The court quotes Yoon v. Yoon, where the Indiana Supreme Court discusses why
enterprise goodwill should be treated as marital property while personal goodwill should not.241 In that case, the husband had appealed the valuation of goodwill in his medical practice.242 The
Supreme Court of Indiana held that enterprise goodwill is “divisible property” but personal
goodwill “is not divisible.”243 The court defines enterprise goodwill as value that “contribute[s] to
the anticipated future profitability of the business.”244 The court distinguishes this from personal
goodwill, which “represents nothing more than the future earning capacity of the individual.”245
The court rejects Yoon’s argument that goodwill should not be included at all because of its
difficulty to calculate accurately.246 The court determined that it is up to the legislature to provide
a solution to the difficulty of valuing goodwill, while it is up to the court to provide an equitable
239. Id. at 544–45.
240. Id. at 545.
241. See Yoon v. Yoon, 711 N.E.2d 1265, 1267 (Ind. 1999).
242. Id. at 1268.
243. Id. at 1267.
244. Id. at 1268.
245. Id. at 1269.
246. Id. at 1270.
division of property.247 Ultimately, the Supreme Court of West Virginia adopted the majority
approach of treating enterprise goodwill as marital property while treating personal goodwill as
non-marital property.248 The court did note that while personal goodwill is not treated as marital
property, it still is an enhanced earning capacity, which could affect alimony.249
iii. Other analogous cases
While celebrity status and goodwill offer the strongest analogous arguments to social
media influence, other forms of marital property interests similar to social media influence are
considered.250 For example, in Canisius v. Morgenstern, the wife had authored a book during her
marriage.251 Upon divorce, the trial court ordered a single payment to the husband as an equitable payment for the opportunities given up by the husband to help his wife write her book.252 The trial
judge did not allow the husband to receive any future payments from the book because sales were
declining and the future earnings from the book were too speculative to calculate.253 The husband
appealed, arguing that he should receive a portion of any future earnings from the book’s sales.254
The court sided with the husband, agreeing that the trial judge should have considered the future
247. Yoon, 711 N.E.2d at 1270.
248. May v. May, 589 S.E.2d 536, 547 (W. Va. 2003).
249. Id.
250. See Evans, supra note 112, at 637.
251. See Canisius v. Morgenstern, 35 N.E.3d 385, 387 (Mass. App. Ct. 2015).
252. Id. at 389.
253. Id. at 388.
254. Id. at 386.
royalty payments that the wife was contractually owed from the book when determining how much money the husband was owed.255 The court acknowledged that issues may arise such as the
duration of royalty payments may exceed the life of one of the spouses, so the court would allow
the trial judge’s discretion to limit the term that royalty payments would be made.256 This case presents a similar solution to the royalty payments as social media influence because the payments are future payments based on estimates of future earnings.257 However, the main issue with this
case and social media influence is that in this case, the author signed a contract that guaranteed
royalty payments while social media influencers do not have contracts that will guarantee future
payments.258
iv. Recommendation
Courts should adopt a uniform principle of treating social media influence as a combination
of enterprise and personal goodwill. Social media influencers use their social media accounts to
generate income, creating enterprise goodwill.259 At the same time, the social media accounts
require the personal characteristics of the social media influencer in order to have any increased
255. Id. at 393–94.
256. Id. at 395–96.
257. See Canisius, 35 N.E.3d, at 392.
258. Id.
259. See Zameena Mejia, Kylie Jenner reportedly makes $1 million per paid Instagram post, CNBC MONEY (Aug. 1, 2018), https://www.cnbc.com/2018/07/31/kylie-jenner-makes-1-million- per-paid-instagram-post-hopper-hq-says.html.
value.260 Therefore, the social media influencer’s business consists of both enterprise goodwill of
the social media account and the personal goodwill of the social media influencer.261 Because
social media influence has both enterprise and personal goodwill, courts should treat the forms of goodwill as one combined asset treated as marital property depending upon the circumstances of
the marriage.262 In general, if the non-influencer spouse sacrificed time and opportunities in order
to support the influencer spouse, then the social media influence should be treated as marital
property divisible in a divorce.263
Unlike most businesses, valuing social media influence is much more difficult.264 As
discussed earlier, social media influence is difficult to value because of the inconsistencies in
income and the volatility of a social media influencer’s career.265 However, the income approach
to valuation will likely produce the most accurate estimate of social media influence’s value.266
This value should be determined by accountants who work with experts in social media influence
and can project the value of a social media influencer’s career.267 Again, this estimated value using
260. See Katie Sehl, The Complete Guide to Instagram Influencer Rates in 2019, HOOTSUITE BLOG (Mar. 4, 2019), https://blog.hootsuite.com/instagram-influencer-rates.
261. See id.
262. See Canisius, 35 N.E.3d at 393.
263. Id.
264. Sehl, supra note 260.
265. See Loughnane, Plastino, & Altman, supra note 173, at 37.
266. Id.
267. See Shanice Naidu, What’s Love Got to Do with It? The Value of Celebrity Status in Divorce Proceedings, 33 CARDOZO ARTS & ENT. L.J. 573, at 599 (2015).
the income approach does not factor in the large volatility that social media influencers can face
in their careers.268
One proposal to fix the issue of volatility comes from Shanice Naidu’s article, What’s Love
Got to Do with It? The Value of Celebrity Status in Divorce Proceedings.269 Although the article
focuses on celebrity status rather than social media influence, as determined earlier, social media
influence should be treated like celebrity goodwill, so the valuation proposal would apply to social media influence.270 The proposal calls for a reversed jurisdiction approach.271 This approach would call for the court to retain jurisdiction over the parties and order small payments over a projected period of time until the present-day value of the influence is paid off.272 This approach protects the
spouses from the volatility of being a social media influencer.273 Rather than make one single
payment that could be inaccurate as to the actual value of the social media influence, the influencer
would make small payments throughout his career that can be adjusted based on that volatility.274
Should the influencer become much more valuable, then the payments should increase to reflect
that value.275 Likewise, if the influencer loses his influence, then the payments could be decreased
268. See id.
269. See id.
270. See id. at 573–75.
271. Id. at 598.
272. Id. at 599.
273. See Naidu, supra note 267.
274. Id.
275. See id. at 598–99.
or cease altogether.276 Finally, the author proposes allowing the parties to agree to modify or
terminate the payments.277
One major issue with this approach would be the required involvement of the court
throughout the entire period of payments which could last dozens of years.278 Similarly, it is
possible that the social media influencer’s career fails and never achieves the present-day value of
his projected influence, leaving the non-influencer spouse without receiving full payment.279
Furthermore, it may be much more expensive to bring in experts to value the social media
influence.280 However, the author notes that achieving an accurate and equitable result outweighs
these concerns.281 Additionally, the author offers proposals to prevent costly time spent in court
by limiting the times that a spouse may claim a change in their influencer status that affects the
payments as well as allow the parties to modify or settle the payments.282
The income approach with reverse jurisdiction provides the most appropriate solution for
valuing social media influence in the context of divorce proceedings.283 While the court should allow the spouse who owns the social media account to retain sole ownership of the account, the court should adopt an income approach to value that account’s influence and divide the monetary
276. Id.
277. Id.
278. Id. at 600.
279. Naidu, supra note 267, at 600.
280. Id.
281. Id.
282. Id. at 600–01.
283. See id. value of the influence between the spouses in an equitable manner through small payments to the non-influencer spouse over the span of the influencer spouse’s career. Despite having a general system in place to value and divide social media influence, the court should have discretion when looking at the factors of each case to ensure fairness to both spouses. In addition, the court should adopt general policies regarding certain factors of the social media influence in relation to the spouses.
v. Factors to consider
a. Jointly-operated versus separately-operated accounts
One factor the court should consider is whether one spouse or both spouses manage the social media account. Although less common, there are influential social media accounts operated by both spouses.284 One approach for jointly-operated accounts that provides equitable value is to allow one of the spouses to continue operating the account but split the monetary value of the influence equally for each spouse.285 Applying the reverse jurisdiction approach, the court could simply order payments equal to half of the money made from the social media account to each spouse.286 However, circumstances under this approach may require another method in order to provide equitable value. For example, if the spouses operated a joint account that posted videos of the couple together, then giving the account to one of the spouses in a divorce would likely
284. See Janna Ehrhardt, 5 Must-Follow Influencer Couples, INFLUENCER DB (Apr. 18, 2017), https://blog.influencerdb.com/5-must-follow-instagram-influencer-couples.
285. See Naidu, supra note 267, at 603.
286. Id.
decrease the value of that account greatly.287 However, in that case, it is likely that the account’s
influence would decline regardless.288
On the other hand, if only one spouse operates the social media account, then the income
approach with reverse jurisdiction would be the most appropriate solution.289 The reverse
jurisdiction would factor in any time or labor given by the non-influencer spouse to the influencer
spouse.290 The court should examine the length of the marriage as well as testimony about the time and money spent by the non-influencer spouse in helping the influencer spouse advance his career.
b. Timing
Another factor is whether the spouse created the account prior to or during marriage.291 If created during marriage, under community property status, that account becomes jointly-owned marital property.292 In this case, the court should look at the jointly-operated account approach,
but give ownership of the social media account to the spouse who created the account.293 If the spouse created the account prior to marriage, the account itself should be treated as separate property belonging to that spouse, but the court should apply the income with reverse jurisdiction approach to account for the growth of the social media influence during the marriage if the non-
287. See Ehrhardt, supra note 284.
288. See Naidu, supra note 267, at 603.
289. See id.
290. See id.
291. See id. at 603–04.
292. See id.
293. See id.
influencer spouse contributed or gave up opportunities to help support the influencer spouse.294
However, if there is no evidence that the non-influencer spouse gave up any opportunities or did
not provide any extra support to the influencer spouse, the court should not treat the social media
influence as marital property that can be divided.295
c. Other equitable considerations
While these approaches for various factors provide guidelines that the courts should
generally follow, each case will have unique facts that may require the court to apply a different
approach to reach an equitable solution. For example, courts should consider a proper method of
distributing the payments from one spouse to the other, such as through annual payments or based
on each time the influencer spouse generates revenue.296 While annual or semi-annual payments
based on earnings during that year or half-year period would be easier than making payments after any income is received, some circumstances may call for the latter option.297 For example, if a social media influencer is working on a single ad campaign that lasts for over a year, that influencer may receive very little income from the marketing agency prior to the completion of the ad campaign, so a yearly or monthly payment would not suffice.298 Similarly, courts should adopt a
uniform system of enforceability of payments. Although each circumstance can have unique facts,
294. See Naidu, supra note 267.
295. See id.
296. See id. at 598–99.
297. See id.
298. See id.
courts should adopt a uniform method to simplify divorce proceedings when social media
influence is involved.299
V. CONCLUSION
Although the rise of social media influence is relatively new, the size of the industry along
with the rapid growth indicate a need for the courts to recognize this quickly-expanding trend. As
more and more individuals become social media influencers, it is inevitable that one of these
influencers will file for divorce, and the court will have to examine if and how the social media
influence should be divided.
However, social media influence will play a large role in the legal system overall. Issues
have already arisen regarding the FTC requirements about promotions and advertising.300
Similarly, tax issues may arise as individuals generate income as influencers with no clear
definition of their employment. While these issues are still relatively rare and unaddressed by
courts, federal and state legislatures should begin creating new statutes and regulations defining
how social media influence should be regarded in all aspects of the law. As society grows more dependent on connections through social media, the law must keep up its pace.
299. See id.
300. See The FTC’s Endorsement Guides: What People Are Asking, supra note 20.