JLM Couture, Inc. v. Gutman

21-2535(L)
JLM Couture, Inc. v. Gutman
United States Court of Appeals
for the Second Circuit
August Term 2023
Argued: September 19, 2023
Decided: January 17, 2024
Nos. 21-2535; 22-1694
JLM C OUTURE , INC.,
Plaintiff-Appellee,
v.
H AYLEY PAIGE GUTMAN,
Defendant-Appellant.*
On Appeal from the United States District Court
for the Southern District of New York
Before: C ALABRESI , PARK , and N ARDINI , Circuit Judges.
Fashion designer and social-media influencer Hayley Paige
Gutman challenges a preliminary injunction and contempt order
* The Clerk of Court is respectfully directed to amend the official caption
as set forth above.

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entered against her in litigation with her former employer, JLM
Couture, Inc. The district court (Swain, C.J.) issued a preliminary
injunction awarding JLM sole control of two social-media accounts—
an Instagram Account and a Pinterest Account (together, the
“Disputed Accounts”)—and preliminary enforcement of a five-year
restrictive covenant prohibiting Gutman from “identifying herself” as
a designer of certain goods. The district court also held Gutman in
civil contempt for a series of Instagram posts that it found to be
“marketing” in violation of an earlier version of the preliminary
injunction. Gutman argues on appeal that this was reversible error
and that the preliminary injunction should be dissolved.
We DISMISS Gutman’s appeal from the district court’s
interlocutory contempt order for lack of appellate jurisdiction. We
AFFIRM the district court’s refusal to dissolve its preliminary
injunction based on the law of the case. We VACATE in part the
district court’s order modifying its preliminary injunction because it
erred in determining ownership of the Disputed Accounts and failed
to assess the reasonableness of the five-year noncompete restraint on
Gutman. We thus REMAND for further proceedings consistent
with this opinion.
S ARAH M. MATZ , Adelman Matz P.C., New York, NY
(Gary Adelman, Adelman Matz P.C., New York, NY, on
the brief ), for Plaintiff-Appellee.
JOSEPH C. L AWLOR , Haynes & Boone, LLP, New York, NY
(Richard D. Rochford, Jr., Haynes & Boone, LLP, New
York, NY, on the brief ), for Defendant-Appellant.

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PARK , Circuit Judge:
Fashion designer and social-media influencer Hayley Paige
Gutman challenges a preliminary injunction and contempt order
entered against her in litigation with her former employer, JLM
Couture, Inc. The district court (Swain, C.J.) issued a preliminary
injunction awarding JLM sole control of two social-media accounts—
an Instagram Account and a Pinterest Account (together, the
“Disputed Accounts”)—and preliminary enforcement of a five-year
restrictive covenant prohibiting Gutman from “identifying herself” as
a designer of certain goods. The district court also held Gutman in
civil contempt for a series of Instagram posts that it found to be
“marketing” in violation of an earlier version of the preliminary
injunction. Gutman argues on appeal that this was reversible error
and that the preliminary injunction should be dissolved.
We dismiss Gutman’s appeal from the district court’s
interlocutory contempt order for lack of appellate jurisdiction. We
affirm the district court’s refusal to dissolve its preliminary injunction
based on the law of the case. We vacate in part the district court’s
order modifying its preliminary injunction because it erred in
determining ownership of the Disputed Accounts and failed to assess
the reasonableness of the five-year noncompete restraint on Gutman.
We thus remand for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Background
1. Employment History
In July 2011, Hayley Paige Gutman signed an employment
agreement with JLM (the “Contract”). See Appellant’s App’x at 376-

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94. Gutman agreed to design a line of bridal wear in exchange for a
salary plus “additional compensation” tied to the sales of the
products she designed. See Contract ¶ 4. The contract included
provisions to protect JLM’s investment in Gutman’s name and brand
association. Thus, among other terms, Gutman: (1) agreed not to use
her name (or any derivatives of her name) in commerce once JLM
registered a trademark thereof, id. ¶ 10(b)-(d); (2) agreed that various
categories of creative material she produced would be JLM’s
property, id. ¶¶ 11-12; and (3) agreed to certain noncompete,
nonsolicit, and nondisclosure restrictions, id. ¶ 9. The Contract
allowed JLM to fire Gutman at any time, with or without cause, but
included no provision for Gutman to terminate the arrangement.
Although the parties amended the Contract in 2014, and JLM later
exercised an option to extend it through August 1, 2022, the relevant
features remained the same throughout the term of the Contract.
In 2019, the parties attempted to negotiate amendments to the
Contract but were unable to reach agreement. That November,
Gutman changed the passwords to the Disputed Accounts and
refused to give JLM access. Although the accounts had been used to
post content advertising JLM’s products, Gutman informed JLM that
she would “not be posting any JLM related business.” JLM Couture,
Inc. v. Gutman, No. 20-cv-10575, 2021 WL 827749, at *6 (S.D.N.Y. Mar.
4, 2021). JLM then filed this lawsuit. Relevant here, JLM alleged
that Gutman had breached the Contract and that she was liable for
conversion and trespass to chattels for taking control of the Disputed
Accounts.

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2. The Disputed Accounts
Gutman created the Pinterest Account on November 3, 2011
and the Instagram Account on or about April 6, 2012. For both, she
used the handle “@misshayleypaige,” a derivative of her name that
she had used for other social-media profiles not in dispute, including
several that were created before her employment with JLM. The
Disputed Accounts were created using Gutman’s name, personal cell
phone number, and a personal email account that she also used for
work purposes. She created her own passwords.
JLM did not direct Gutman to open the accounts. Gutman
says she created them at the suggestion of a friend. JLM argues that
she must have created them to advertise for the company, as the
Contract required her to “perform such other duties and services
commensurate with her position . . . as may be assigned to her by an
officer of the Company, including . . . assisting with advertising
programs.” Contract ¶ 2.
Although the district court did not find that Gutman created
the Disputed Accounts for JLM, it did find that “the Instagram
Account was utilized to showcase JLM’s products almost
immediately after its creation.” Special App’x at 18. It also found
credible the testimony of JLM’s CEO that the creation of the Instagram
Account was “timed to coincide with the week of the Fall 2012 New
York bridal market.” Id. The district court further noted that JLM
products were featured in several of Gutman’s early posts to the
Instagram Account.
Gutman’s earliest posts include pictures of wedding dresses, as
well as pictures of the New York City skyline, chairs, dogs, a wine
bottle, and what appears to be a beach vacation.

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Over time, however, the Disputed Accounts came to serve as
“critical advertising platforms” for JLM’s products. JLM Couture,
Inc. v. Gutman, No. 20-cv-10575, 2023 WL 2503432, at *4 (S.D.N.Y. Mar.
14, 2023). In addition to posts depicting bridal gowns, the Disputed
Accounts provided information about JLM’s promotional events, and
Gutman used Instagram’s messaging function to respond to sales
inquiries. Promotional posts were interspersed with more personal
content, in a strategy that JLM referred to as the “personal glimpse.”
Special App’x at 26. Other JLM employees came to assist in
managing the Disputed Accounts and responding to customer
messages and, by 2019, at least two other employees had access to the
Instagram Account.
B. Procedural History
1. Preliminary Injunction and Contempt Order
On March 4, 2021, after discovery and an evidentiary hearing,
the district court entered a preliminary injunction against Gutman.
Gutman, 2021 WL 827749, at *1. As relevant here, the district court
enjoined Gutman from:
[b]reaching the employment Contract, dated July 13,
2011, together with the amendments and extensions
thereto, by . . . [d]irectly or indirectly, engaging in, or
being associated with . . . , any person, organization or
enterprise which engages in the design, manufacture,
marketing or sale of: (i) bridal apparel, including
bridesmaids’, mother of the bride and flower girls’
apparel and related items; (ii) bridal accessories and
related items; (iii) evening wear and related items; and/or
(iv) any other category of goods designed,
manufactured, marketed, licensed or sold by JLM.

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Id. at *23. The district court later denied Gutman’s request for
reconsideration but modified the preliminary injunction to expire on
August 1, 2022, when the Contract expired. See JLM Couture, Inc. v.
Gutman, No. 20-cv-10575, 2021 WL 2227205, at *8 (S.D.N.Y. June 2,
2021).
In a previous appeal, this Court affirmed the preliminary
injunction in part and vacated it in part. JLM Couture, Inc. v. Gutman,
24 F.4th 785, 801-02 (2d Cir. 2022). We affirmed with respect to (1)
Paragraph 3(a) of the preliminary injunction, which prohibited
Gutman from using her name or derivatives in trade or commerce, id.
at 796; (2) Paragraph 3(b) of the preliminary injunction, which
prohibited Gutman from competing with JLM through the expiration
of the Contract on August 1, 2022, id. at 795; and (3) the district court’s
ruling that JLM did not breach the Contract by failing to pay Gutman
after she stopped working, id. at 801.
We vacated the portion of the preliminary injunction that
awarded JLM control of the Disputed Accounts because the district
court had neither concluded that JLM was likely to succeed on the
merits of its conversion or trespass claims nor tied the injunctive relief
to JLM’s breach-of-contract claim. Id. at 797-800. We noted that, on
remand, the district court could either “choose to answer directly the
question of JLM’s likelihood of success on the merits of its conversion
and trespass claims, properly weigh the relevant injunction factors,
and grant or deny injunctive relief accordingly”; “decide that the
balance of equities favors denying any property-based injunction and
thereby avoid the merits question, leaving Gutman in control of the
Disputed Accounts”; or “modify the vacated portion of the injunction

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to provide JLM with relief for JLM’s breach-of-contract claims that
stems from Gutman’s obligations under the Contract.” Id. at 800.
While Gutman’s first appeal was pending, the district court
held her in contempt of the preliminary injunction based on a series
of Instagram posts teasing her return to the bridal industry. JLM
Couture, Inc. v. Gutman, No. 20-cv-10575, 2021 WL 4084573, at *1-3
(S.D.N.Y. Sept. 8, 2021). The district court reasoned that these posts
constituted marketing of competitive goods, and it ordered Gutman
to remove them within five days, not to post the same or similar
content, and not to announce the name of her new brand. Id. at *4-5,
*9. It further ordered Gutman to pay $5,000 for each day she
remained out of compliance with the injunction. Id. at *9. Gutman
filed a notice of appeal. Notice of Civil Appeal, JLM Couture, Inc. v.
Gutman, No. 21-2535 (2d Cir. Oct. 8, 2021), ECF No. 1.
2. Modified Preliminary Injunction
On remand, the district court concluded that the Disputed
Accounts were advertising platforms that JLM was contractually
entitled to access. See JLM Couture, Inc. v. Gutman, No. 20-cv-10575,
2022 WL 5176849, at *4 (S.D.N.Y. Feb. 14, 2022). The district court
thus modified the preliminary injunction to give both parties access
to the Disputed Accounts through the term of the Contract based on
JLM’s breach-of-contract claim. Id. at *7. The court further
enjoined Gutman from using the Disputed Accounts for any “non-
JLM promotional purposes.” Id. Gutman filed another notice of
appeal. Notice of Civil Appeal, JLM Couture, Inc. v. Gutman, No. 22-
549 (2d Cir. Mar. 17, 2022), ECF No. 1.
The preliminary injunction terms giving JLM control over the
Disputed Accounts and enjoining Gutman from competitive

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employment were based on JLM’s breach-of-contract claims, so they
were set to expire with the Contract on August 1, 2022. See Gutman,
2022 WL 5176849, at *7. The district court thus requested briefing on
any modifications that might be warranted in light of the approaching
expiration date. Order, JLM Couture, Inc. v. Gutman, No. 20-cv-10575
(S.D.N.Y. May 5, 2022), ECF No. 344. Both parties requested
modifications.
Gutman moved for dissolution of the preliminary injunction
based on JLM’s failure to pay her compensation allegedly due under
the Contract in March 2022. The district court rejected this
argument. It ruled that Gutman had already raised the same claim
in an earlier motion for dissolution and, construing her argument as
a motion for reconsideration, denied the motion. See JLM Couture,
Inc. v. Gutman, No. 20-cv-10575, 2022 WL 2916600, at *3-4 (S.D.N.Y.
July 25, 2022), reissued and amended No. 20-cv-10575, 2023 WL 2499581,
at *3-4 (S.D.N.Y. Mar. 14, 2023).
JLM moved for several modifications to the preliminary
injunction, two of which the district court granted. First, the district
court modified the preliminary injunction to give JLM exclusive
control over the Disputed Accounts based on JLM’s likelihood of
success on its claims for conversion and trespass to chattels. See JLM
Couture, Inc. v. Gutman, 616 F. Supp. 3d 359, 383 (S.D.N.Y. 2022),
reissued and amended No. 20-cv-10575, 2023 WL 2503432, at *9
(S.D.N.Y. Mar. 14, 2023). Second, the court prohibited Gutman from
“identifying herself” to the public as a designer of competing goods
for five years based on Paragraph 10(e) of the Contract, which it
interpreted as a post-employment restrictive covenant. See id. at 388.

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Gutman appealed from the district court’s denial of her request
for dissolution of the preliminary injunction and its grant of JLM’s
requested modifications. Notice of Civil Appeal, JLM Couture, Inc.
v. Gutman, No. 22-1694 (2d Cir. Aug. 4, 2022), ECF No. 1. These two
appeals and her appeal of the district court’s contempt order were
consolidated before this Court. Order, Gutman, No. 21-2535 (2d Cir.
Aug. 23, 2022), ECF No. 65.1
II. DISCUSSION
We review contempt orders for abuse of discretion. Chevron
Corp. v. Donziger, 990 F.3d 191, 202 (2d Cir. 2021). We also review for
abuse of discretion the grant, denial, or modification of a preliminary
injunction. Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154, 164 (2d Cir.
2011) (grant or denial); Weight Watchers Int'l, Inc. v. Luigino's, Inc., 423
F.3d 137, 141 (2d Cir. 2005) (modification).
A district court has abused its discretion if it “(1) based its
ruling on an erroneous view of the law, (2) made a clearly erroneous
assessment of the evidence, or (3) rendered a decision that cannot be
1 On February 21, 2023, this Court remanded Gutman’s appeal from
the district court’s orders of July 25, 2022 (Docket No. 22-1694) and
dismissed as moot her appeal from its order of February 14, 2022 (Docket
No. 22-549). Order, Gutman, No. 21-2535 (2d Cir. Feb. 21, 2023), ECF No.
183. Although moot, the appeal docketed at 22-549 had divested the
district court of jurisdiction to enter the July 25, 2022 orders, so an appeal
from those orders was not properly before this Court at that point. Id.
We therefore instructed the district court to reissue the July 25 orders, this
time with proper jurisdiction. Id. The district court did so, see Am. Mem.
Order, Gutman, No. 20-cv-10575 (S.D.N.Y. Mar. 14, 2023), ECF No. 430; Am.
Op. & Order Modifying Prelim. Inj., Gutman, No. 20-cv-10575 (S.D.N.Y.
Mar. 14, 2023), ECF No. 431, and this appeal was reinstated on March 30,
2023, Order, Gutman, No. 21-2535 (2d Cir. Mar. 30, 2023), ECF No. 191.

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located within the range of permissible decisions.” Oneida Nation of
N.Y., 645 F.3d at 164 (quoting Lynch v. City of New York, 589 F.3d 94,
99 (2d Cir. 2009)). Factual findings are reviewed for clear error;
conclusions of law are reviewed de novo. Id.
In this consolidated appeal, Gutman challenges three orders of
the district court. We address each in turn.
A. Contempt Order
First, Gutman challenges the district court’s September 8, 2021
contempt order. Before addressing the merits, however, we must
ensure that we have jurisdiction to hear Gutman’s appeal.
Uniformed Fire Officers Ass'n v. de Blasio, 973 F.3d 41, 46 (2d Cir. 2020).
Here, we do not.
An order of civil contempt may ordinarily be challenged on
appeal only after the entry of final judgment. Int’l Bus. Machs. Corp.
v. United States, 493 F.2d 112, 114-15 (2d Cir. 1973). But orders
“granting, continuing, modifying, refusing or dissolving injunctions”
are immediately appealable. 28 U.S.C. § 1292(a)(1). These
categories are narrowly drawn, and orders merely clarifying or
interpreting injunctions do not create appellate jurisdiction. Weight
Watchers Int’l, 423 F.3d at 141.
Clarifications and interpretations can look like modifications.
Indeed, an erroneous interpretation that extends an injunction
“beyond its original reach” can amount to a modification warranting
immediate review. In re Tronox Inc., 855 F.3d 84, 98 (2d Cir. 2017).
But district courts are entitled to deference when interpreting their
own injunctions, including an injunction’s “original reach.” Id. at

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98-99. Only an “obvious or blatant” misinterpretation rises to the
level of a modification permitting interlocutory review. Id. at 99.
Here, Gutman argues that we have jurisdiction because the
contempt order modifies Paragraph 3(b) of the preliminary
injunction. At the time of Gutman’s alleged violations, that
paragraph enjoined her from:
directly or indirectly, engaging in . . . the design,
manufacture, marketing or sale of: (i) bridal apparel . . . ;
(ii) bridal accessories and related items; (iii) evening
wear and related items; and/or (iv) any other category of
goods designed, manufactured, marketed, licensed or
sold by JLM.
Gutman, 2021 WL 4084573, at *1. Gutman argues that the contempt
order modified this paragraph by (1) prohibiting her from
announcing a new brand name for any venture that would compete
with JLM, and (2) prohibiting her from posting “any similar content”
to the Instagram Account and imposing a monetary fine for each day
she remains noncompliant. See id. at *8-9.
We disagree. The alleged modifications are merely
interpretations of the original preliminary injunction with which
Gutman disagrees. We thus lack appellate jurisdiction to review the
contempt order.
Competing Brand Name. In June 2021, Gutman posted a video
on Instagram announcing that she would launch a new bridal brand
in August 2022. In its contempt order, the district court reasonably
concluded that such behavior constituted “marketing” in violation of
the injunction. If advertising Gutman’s planned return to the
industry is “marketing,” so too is announcing the name under which

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she plans to compete. The district court’s instruction that Gutman
not announce that name merely interprets the injunction and thus
does not create appellate jurisdiction.
“Similar Content.” In its contempt order, the district court
identified six Instagram posts that violated the preliminary
injunction. It ordered Gutman to remove those posts within five
days and not to post the same or similar content on pain of a $5,000
penalty for each day she remained out of compliance with the order.
In context, then, “similar content” is content that violates the
preliminary injunction in a way that is similar to the posts at issue in
the contempt order. And only posts that would independently
violate Paragraph 3(b) of the injunction, at least as that provision was
interpreted in the contempt order, would qualify as “similar content.”
As a result, this instruction would constitute a modification only if the
district court misinterpreted Paragraph 3(b).
But the district court’s interpretation of Paragraph 3(b) is
reasonable. It explained at length why Gutman’s promotion of her
return to the bridal industry and various videos of her sketching dress
designs—including a design she had previously created for JLM—
constituted prohibited “marketing” under the preliminary injunction.
The contempt order did not grant, continue, modify, refuse, or
dissolve an injunction, so Gutman must await final judgment before
she can appeal it.2 We thus dismiss her appeal from the contempt
order.
2 To the extent that Gutman asks this Court to exercise pendent
jurisdiction, we decline to do so. Gutman identifies no “inextricably
intertwined” interlocutory order over which this Court has appellate

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B. Denial of Motion To Dissolve the Preliminary Injunction
Gutman next argues that JLM is not entitled to a preliminary
injunction because it chose to terminate the Contract as its remedy for
Gutman’s alleged breach. We disagree.
When one party breaches a contract, their counterparty must
ordinarily choose between “declaring a breach and terminating the
contract or, alternatively, . . . continuing to perform under the
contract.” Todd Eng. Enters. LLC v. Hudson Home Grp., LLC, 171
N.Y.S.3d 474, 476 (1st Dep’t 2022) (quoting Rebecca Broadway L.P. v.
Hotton, 143 37 N.Y.S.3d 72, 79 (1st Dep’t 2016)).
Gutman asserts that JLM is trying to have it both ways:
although JLM requested and received a preliminary injunction
enforcing certain contract terms, it has failed to pay her as required
under other parts of the Contract. But we rejected this argument in
Gutman’s prior appeal. The Contract provides that “[f]or the full,
prompt and faithful performance of all the duties and services to be
performed by [Gutman] hereunder, [JLM] agrees to pay, and
[Gutman] agrees to accept, the amounts set forth” as base and
additional compensation. Gutman, 24 F.4th at 801. “Faithful
performance is thus a condition precedent to payment of base and
additional compensation, so JLM had no duty to pay Gutman if she
did not work.” Id.
jurisdiction that might justify such a step. See Myers v. Hertz Corp., 624
F.3d 537, 552-53 (2d Cir. 2010). And in any event, pendent jurisdiction is a
discretionary doctrine applied only “rarely,” “sparingly,” and in
“exceptional circumstances,” “if ever.” Id. at 553; Jones v. Parmley, 465 F.3d
46, 65 (2d Cir. 2006).

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“When a court has ruled on an issue, that decision should
generally be adhered to by that court in subsequent stages in the same
case,” absent “cogent and compelling” reasons to the contrary.
United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) (cleaned
up). Here, Gutman identifies no material difference between JLM’s
refusal to pay “additional compensation” due in March 2022—the
“breach” Gutman now alleges—and the compensation allegedly due
in March 2021 that we considered previously. The district court thus
correctly denied Gutman’s motion for dissolution of the preliminary
injunction based on JLM’s alleged breach of the Contract.
C. Modification to the Preliminary Injunction
1. Social-Media Account Ownership
a. Ownership Analysis
Gutman next argues that the district court erred by modifying
its preliminary injunction to give JLM exclusive control over the
Disputed Accounts. We agree.
The district court revised its injunction before the Contract was
set to expire on August 1, 2022. In doing so, it evaluated JLM’s
likelihood of success on the merits of its claims for conversion and
trespass to chattels. As the court noted, “[t]he issue of ownership of
a social media account is novel, and few courts have examined the
question.” Gutman, 616 F. Supp. 3d at 375.
To resolve the issue, the district court identified six factors “at
the core of a proper social media account ownership inquiry.”

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Gutman, 2023 WL 2503432, at *10.3 Based on these factors, the district
court ruled that “JLM has established [a] clear likelihood of success in
demonstrating that it owns the Instagram Account and Pinterest
Account or (to the extent Ms. Gutman or the relevant platforms may
hold title to the Accounts) has a right to use and control the Accounts
vastly superior to any such right of Ms. Gutman.” Id. at *15.
The district court expressly declined to consider whether
Gutman owned the Disputed Accounts when they were created. See
id. at *11. It stated that such an approach would be “overly
simplistic, and the dynamics of social media warrant a much fuller
examination of how the accounts were held out to the public, the
purposes for which the accounts were used, and the methods by
which the accounts were managed.” Id.
We conclude that this approach was error. The law has long
accommodated new technologies within existing legal frameworks.
See, e.g., Kyllo v. United States, 533 U.S. 27, 33-40 (2001) (holding that
the use of thermal imaging technology can constitute a search under
the Fourth Amendment); Thyroff v. Nationwide Mut. Ins. Co., 8 N.Y.3d
283, 292-93 (2007) (treating electronic records as property equivalent
to physical records for the purposes of conversion). We see no
reason to depart from this traditional approach here. Determining
3 They are: “(1) whether the account handle reflects the business or
entity name; (2) how the account describes itself; (3) whether the account
was promoted on the entity’s advertisements or publicity materials;
(4) whether the account includes links to other internet platforms of the
entity; (5) the purpose for which the account was used, including whether
it was tied to promotional or mission-oriented activities of the entity; and
(6) whether employees or members of the entity had access to the account
and participated in its management.” Gutman, 2023 WL 2503432, at *10.

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the ownership of social-media accounts is indeed a relatively novel
exercise, but that novelty does not warrant a new six-factor test.4
The Disputed Accounts should be treated in the first instance
like any other form of property. This includes determining the
original owner. See Pierson v. Post, 3 Cai. 175 (N.Y. 1805)
(determining original owner of a fox); Lightfoot v. Davis, 198 N.Y. 261,
265 (1910) (discussing the principle of title by first possession); see also
Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev.
73, 73 (1985). When Gutman created the Disputed Accounts, any
associated property rights belonged to someone. And if she created
them using her personal information and for her personal use, then
those rights belonged to her, no matter how the Disputed Accounts
may have been used later.5 See 2 William Blackstone, Commentaries
*389.
If the district court concludes that Gutman owned the Disputed
Accounts at creation, it will then need to consider whether JLM
4 To be sure, the district court relied on two cases in adopting its
test—In re CTLI, LLC, 528 B.R. 359 (Bankr. S.D. Tex. 2015), and International
Brotherhood of Teamsters Local 651 v. Philbeck, 464 F. Supp. 3d 863 (E.D. Ky.
2020). But neither interprets New York law, which governs here. See
Gutman, 2023 WL 2503432, at *9-10.
5 In evaluating the initial ownership of the Disputed Accounts, we
note that Gutman’s use of the “@misshayleypaige” username does not
support a presumption that she created the account for business purposes.
First, Gutman had licensed her name and its derivatives to JLM for use only
in trade or commerce. Contract ¶ 10(b). She was entitled to continue
using her name for noncommercial purposes, including personal social-
media accounts. Second, even if Gutman created the Disputed Accounts
for commercial purposes, it remains possible that she did so on her own
behalf and in violation of the Contract.

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subsequently took ownership by operation of the Contract. 6
Traditional principles of property law guide this analysis. Thus, the
fact that Gutman transferred some or all of her rights in particular
content posted on the Disputed Accounts does not by itself support
an inference that she transferred ownership of the Disputed Accounts
themselves. 7 Nor should it ordinarily matter to the question of
ownership whether an account owner permits others to assist in
managing the account, or whether one or the other party holds itself
out as owning it. See, e.g., Meisels v. Meisels, 630 F. Supp. 3d 400, 411
(E.D.N.Y. 2022) (management of rental property not probative of
ownership); Porter v. Wertz, 53 N.Y.2d 696, 698 (1981) (permitting suit
for recovery of a painting purchased from a middleman who lacked
authority to sell the painting). Determining ownership by reference
6 It appears that ownership of the Disputed Accounts may depend
at least in part on the terms of service governing their creation and use.
See, e.g., Eagle v. Morgan, No. 11-cv-4303, 2013 WL 943350, at *11 (E.D. Pa.
2013) (discussing LinkedIn’s User Agreement). The district court may
thus consider on remand what rights are inherent in “ownership” of the
Disputed Accounts and whether they include the right to transfer or assign
those accounts.
7 Rights in the Disputed Accounts and rights in content posted on
them—including ancillary content like direct messages, captions, profile
pictures, and the like—need not be intertwined. See, e.g., Agence Fr. Presse
v. Morel, 934 F. Supp. 2d 547, 562-63 (S.D.N.Y.) (discussing Twitter’s terms
of service providing that “users retain their rights to the content they post”),
reconsideration granted in part on other grounds, 934 F. Supp. 2d 584 (S.D.N.Y.
2013); Sinclair v. Ziff Davis, LLC, 454 F. Supp. 3d 342, 345 (S.D.N.Y. 2020)
(discussing Instagram’s terms of service providing that the user grants to
Instagram “a non-exclusive, fully paid and royalty-free, transferable, sub-
licensable, worldwide license” to the content they post), reconsideration
granted in part on other grounds, 2020 WL 3450136 (S.D.N.Y. June 4, 2020).

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to such principles would promote transfer by surprise and complicate
contractual arrangements under which an account owner might agree
to advertise another’s goods on his or her platform.8
Moreover, the district court erred by concluding that JLM is
likely to succeed in demonstrating ownership of the Disputed
Accounts under Paragraph 11 of the Contract.9 See Gutman, 2023 WL
2503432, at *15. That paragraph provides that all “designs,
drawings, notes, patterns, sketches, prototypes, samples,
improvements to existing works, and any other works conceived of
or developed by [Gutman] in connection with her employment with
the Company involving bridal clothing, bridal accessories and related
bridal or wedding items,” are works for hire and the exclusive
property of JLM. Contract ¶ 11.
The district court ruled that the Disputed Accounts themselves
qualify as “any other works” conceived of or developed by Gutman
in connection with her employment. It thus concluded that Gutman
8 To the extent that the district court held that JLM has a superior
right to use and control the Disputed Accounts, it erred by relying on its
six-factor ownership test. If the district court concludes on remand that
Gutman owns the Disputed Accounts, it could still find that JLM has a
superior right of possession. But that conclusion would depend on
identifying the nature and source of any superior possessory interest. See,
e.g., Restatement (Second) of Torts § 225 (discussing persons entitled to
immediate possession); cf. Guiffrida v. Storico Dev., LLC, 876 N.Y.S.2d 793,
795 (4th Dep’t 2009) (holding that tenants could sue for conversion because
they had an immediate superior contractual right to possession).
9 We do not, however, disturb the district court’s application of that
provision as it relates to JLM’s likelihood of success in showing ownership
of particular content posted on the Disputed Accounts or compilations of
posted content. Gutman, 2023 WL 2503432, at *15.

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likely assigned them to JLM in the Contract. But the ordinary
meaning of general terms at the end of a list must be interpreted to
“embrace only objects similar in nature to those objects enumerated
by the preceding specific words.” Yates v. United States, 574 U.S. 528,
545 (2015) (quoting Wash. State Dep’t of Soc. & Health Servs. v.
Guardianship Est. of Keffeler, 537 U.S. 371, 384 (2003)) (applying ejusdem
generis). Otherwise, giving general terms an “all-encompassing”
meaning would render specifically enumerated terms surplusage.
See id. at 545-46 (quoting Begay v. United States, 553 U.S. 137, 142
(2008)).
Here, the specific terms—“designs, drawings, notes, patterns,
sketches, prototypes, samples, [and] improvements to existing
works”—are all closely related. Contract ¶ 11. They describe steps
in the process of fashion design and capture much (if not all) of the
creative output that Gutman might produce in her role as a designer.
Moreover, the enumerated terms are all items that JLM might
conceivably sell to the public and appear to be presumptively
copyrightable. See 17 U.S.C. § 102(a) et seq. The Disputed Accounts
by contrast share none of these core attributes, despite featuring
content that does, such as sketches and drawings of wedding
dresses.10 It would thus be inconsistent with ordinary principles of
10 Although the copyrightability of the Disputed Accounts is not
before us, we note that, at the very least, the functional portions of social-
media accounts are likely ineligible for protection. See Compendium of U.S.
Copyright Office Practices § 1006-07 (3d ed. 2021). Further, it is an open
question in this Circuit whether the overall “look and feel” of a website may
be copyrightable. See ID Tech LLC v. Toggle Web Media LLC, No. 20-cv-
5949, 2023 WL 2613625, at *6-7 & n.7 (E.D.N.Y. Mar. 23, 2023) (collecting
cases).

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contract interpretation to conclude that Paragraph 11 of the Contract
assigned the Disputed Accounts to JLM.
To summarize: the analysis of social-media-account ownership
begins where other property-ownership analyses usually begin—by
determining the account’s original owner. The next step is to
determine whether ownership ever transferred to another party. If
a claimant is not the original owner and cannot locate their claim in a
chain of valid transfers, they do not own the account.
We thus remand to the district court to analyze ownership of
the Disputed Accounts under the framework discussed above.
b. Standard for Granting Preliminary Injunctive Relief
The next question is what standard JLM must satisfy on
remand to obtain its requested preliminary injunctive relief. We
have recognized two different standards governing preliminary
injunctions. The first requires the party seeking a preliminary
injunction to demonstrate that “(1) absent injunctive relief, he will
suffer irreparable injury, and (2) there is a likelihood that he will
succeed on the merits of his claim.” Mastrovincenzo v. City of New
York, 435 F.3d 78, 89 (2d Cir. 2006) (cleaned up). We have applied
this standard to prohibitory injunctions, which simply bar a party
from taking action that disturbs the status quo, defined as “the last
peaceable uncontested status preceding the present controversy.”
Mastrio v. Sebelius, 768 F.3d 116, 121 (2d Cir. 2014). The second, and
more demanding, standard requires the movant, “in addition to
demonstrating irreparable harm,” to show that it has “a clear or
substantial likelihood of success on the merits.” Mastrovincenzo, 435
F.3d at 89 (emphasis added) (cleaned up). We have applied this
standard to mandatory injunctions, which “alter the status quo by

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commanding some positive act,” id. (emphasis omitted), as well as to
injunctions that “(1) would provide the plaintiff with all the relief that
is sought and (2) could not be undone by a judgment favorable to
defendants on the merits at trial,” id. at 90 (cleaned up).
JLM’s requested relief cannot be characterized as merely
maintaining the status quo ante or prohibiting Gutman from
disturbing it. The parties agree that “the last peaceable uncontested
status preceding the present controversy,” Mastrio, 768 F.3d at 121,
was a moment when both JLM and Gutman had access to the
Disputed Accounts. But JLM does not seek a return to shared access.
It asks instead that Gutman turn over the credentials to the Disputed
Accounts and give JLM exclusive control over them. As both parties
recognize, that relief would change the status quo, making the
injunction mandatory. JLM must therefore meet the more stringent
standard to succeed on remand.11
2. Restrictive Covenant
Finally, Gutman argues that the district court impermissibly
granted a preliminary injunction restricting her from identifying
herself as a designer of certain products based on Paragraph 10(e) of
the Contract. We agree.
11 JLM has not yet made such a showing. The district court
awarded exclusive control to JLM by characterizing Gutman’s prior access
as derivative of her role as JLM’s employee. But the question whether
Gutman had access to the Disputed Accounts because they were her
property or only because she was an employee goes to the crux of the
parties’ dispute. The district court, then, effectively assumed JLM’s
success on the merits. On remand, the burden is on JLM to demonstrate a
clear or substantial likelihood of success.

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As interpreted by the district court, Paragraph 10(e) is a
restrictive covenant that limits Gutman’s ability to work for five years
following the termination of her employment with JLM. But the
district court failed to consider whether the restrictive covenant was
likely to be enforceable under New York law, as it was required to do
before concluding that JLM was likely to succeed on its breach of
contract claim under Paragraph 10(e) of the Contract.12
In light of the “powerful considerations of public policy which
militate against sanctioning the loss of a man’s livelihood,” restrictive
covenants are disfavored in New York and will be enforced only after
careful analysis. Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp.,
42 N.Y.2d 496, 499 (1977) (quoting Purchasing Assocs., Inc. v. Weitz, 13
N.Y.2d 267, 272 (1963)). “[A] restrictive covenant will only be subject
to specific enforcement to the extent that it is reasonable in time and
area, necessary to protect the employer’s legitimate interests, not
harmful to the general public and not unreasonably burdensome to
the employee.” BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 389 (1999)
(quoting Reed, Roberts Assocs. v. Strauman, 40 N.Y.2d 303, 307 (1976)).
Although protection against competition by a former employee
whose services are “unique or extraordinary” may constitute a
12 We affirmed an earlier iteration of the district court’s preliminary
injunction that ordered Gutman not to compete with JLM. Gutman, 24
F.4th at 795. That provision, however, was premised on Paragraph 9 of
the Contract, which restricted Gutman’s ability to compete during the term
of her employment. See id. “[T]he availability of equitable relief against the
former employee diminishes appreciably” after the term of employment
ends. See Am. Broad. Cos. v. Wolf, 52 N.Y.2d 394, 403-04 & n.6 (1981). Our
previous ruling thus provides little guidance as to the restrictive covenant
before us now.

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legitimate employer interest, any such restrictions must still meet
BDO Seidman’s remaining criteria for enforcement.13 Id. Here, the
district court declined to consider those criteria. See Gutman, 2023
WL 2503432, at *19 n.13.
On remand, the district court should consider (1) whether
Paragraph 10(e)’s five-year term is reasonable in duration; 14
(2) whether JLM has made a sufficient showing that it has a legitimate
interest warranting enforcement of a restrictive covenant; 15 and
13 Nor is it clear that the mere label “unique or extraordinary” is
sufficient to constitute a legitimate interest after BDO Seidman. There, the
Court of Appeals was concerned with whether a former employee, alleged
to be “unique or extraordinary,” in fact “possessed any unique or
extraordinary ability . . . that would give him a competitive advantage”
over his former employer. BDO Seidman, 93 N.Y.2d at 390; see also Am.
Broad. Cos., 52 N.Y.2d at 403 n.6. But see Ticor Title Ins. Co. v. Cohen, 173
F.3d 63, 70-72 (2d Cir. 1999) (enforcing, pre-BDO Seidman, a restrictive
covenant against a unique or extraordinary employee subject only to an
overarching reasonableness requirement).
14 See, e.g., BDO Seidman, 93 N.Y.2d at 393; Pure Power Boot Camp, Inc.
v. Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d 489, 507 (S.D.N.Y. 2011)
(noting that ten-year restrictive covenants are consistently held
unenforceable and collecting cases); Maxon v. Franklin Traffic Serv., Inc., 689
N.Y.S.2d 559, 561 (4th Dep’t 1999) (holding five-year noncompete
unreasonable in duration); Greenwich Mills Co. v. Barrie House Coffee Co., Inc.,
459 N.Y.S.2d 454, 458 (2d Dep’t 1983) (collecting cases striking three- and
five-year restrictive covenants); Asness v. Nelson, 273 A.D.2d 165, 165 (N.Y.
App. Div., 1st Dep’t 2000) (holding a one-year noncompete reasonable in
duration).
15 See BDO Seidman, 93 N.Y.2d at 388-89, 391 (“[T]he only
justification for imposing an employee agreement not to compete is to
forestall unfair competition. It seems self-evident that a former employee
may be capable of fairly competing for an employer’s clients by refraining
from use of unfair means to compete. . . . [T]he employer’s interest in

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(3) whether its interpretation of the prohibition in Paragraph 10(e) is
reasonable in scope and not overly burdensome on Gutman.16
III. CONCLUSION
We have considered all of Gutman’s remaining arguments and
found them to be without merit. For the reasons set forth above, we
(1) dismiss Gutman’s appeal, No. 21-2535, from the district court’s
contempt order of September 8, 2021; (2) affirm the district court’s
March 14, 2023 order denying Gutman’s motion to dissolve the
preliminary injunction; and (3) affirm in part and vacate in part the
district court’s March 14, 2023 order modifying its preliminary
injunction and remand for further proceedings consistent with this
opinion.
preserving its client base against the competition of the former employee is
no more legitimate and worthy of contractual protection than when it vies
with unrelated competitors for those clients.”).
16 Specifically, the enforceability of a prohibition extending to
Gutman’s “tastes, voice, vision, face, and mannerisms,” Gutman, 2023 WL
2503432, at *20, is questionable, see BDO Seidman, 93 N.Y.2d at 389.

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