Social Media Ownership Could Be Your Biggest Risk, Here’s Why

In today’s digital-first property market, a real estate agent’s social media presence is often just as valuable as their listings.

A strong personal brand, built through Instagram, LinkedIn, TikTok or Facebook, can drive engagement, attract vendors, and even generate leads long after the initial post.

But amidst the success stories and sold stickers, a pressing legal question often arises: who actually owns the agent’s social media account, the agent or the agency?

The answer isn’t always straightforward. From copyright laws to employment agreements, understanding the legal landscape is critical for both agents and principals.

Copyright and Content Creation

At the core of this issue lies the Copyright Act 1968 (Cth), which governs ownership of original literary, artistic, photographic and audiovisual works in Australia.

By default, the creator of the work owns the copyright.

However, Section 35(6) of the Act provides that where a work is created by an employee in the course of employment, copyright vests in the employer, unless there is an agreement to the contrary.

This includes marketing materials, listing descriptions, promotional videos, and social media content generated during employment.

Where an agent operates as an independent contractor, the default position is reversed: copyright remains with the contractor, unless explicitly assigned under contract.

Therefore, absent a properly drafted agreement, a real estate agency may have no legal rights over content posted on an independent contractor agent’s social media account, even where that content promotes the agency’s listings or brand.

Ownership of Social Media Accounts

The legal status of social media accounts themselves (as distinct from the content within them) is less settled.

Australian courts have not yet definitively ruled on whether social media accounts constitute personal property capable of legal ownership, although international jurisprudence, particularly in the UK and US, suggests that accounts may be treated as business assets in certain contexts.

In practice, determining account ownership involves consideration of factors such as:

• Who created and registered the account;

• The use of agency branding or intellectual property;

• Whether the agency paid for content production or account management;

• The account’s stated purpose (e.g., promotion of the agency’s listings);

• Whether access was shared with administrative or marketing personnel.

In the absence of express contractual terms assigning or restricting rights to the account, disputes often arise when agents seek to retain control over their follower base and content upon departure.

Practical Takeaways For Agencies: 

• Ensure employment and contractor agreements expressly assign IP rights and social media ownership to the agency.

• Create and enforce a clear, written social media policy.

• If social media is critical to your brand, consider registering key accounts in the agency’s name.

Practical Takeaways For Agents:

• Clarify ownership of your social media presence before you build it

• If you are a contractor and developing your own brand, retain rights to your content and accounts through express contractual terms.

• Be cautious when posting using agency branding, as it may create a claim of joint or agency ownership.

Final Word

In an industry where personality and trust drive success, your social media is more than just marketing, it’s intellectual property.

Whether you’re an agency principal trying to protect your brand, or an agent building your own following, clarity on ownership is essential.

Don’t wait for a dispute to arise. Review your contracts and policies today.