TikTok, YouTube, Snapchat, Instagram, Facebook, ... these are all social networks that have sparked the development of a new form of advertising over the past years: influencer marketing. Nowadays, major brands not only call on advertising agencies to promote their brands, but also rely on people commonly known as “influencers” for their promotional campaigns. Influencers are individuals who are active on some or all of the above-mentioned social networks, are followed by a large community of users (also known as “followers”) and have built and maintained a form of credibility in certain sectors (such as lifestyle, hobbies, culture, business, etc.).
Although the effectiveness of influencer marketing is now well-established, many brands are still confused about its legal aspects. The questions arising are wide-ranging and will be covered in more details over the course of several blogposts to be published in the coming weeks. In this first blogpost, we focus on the questions most often asked by brands regarding intellectual property rights, since the content created by influencers in the context of their partnership with brands is very often protected by IP rights.
1. Do I own the content created by my influencer?
The content created by influencers can be diverse, ranging from photos, to videos and blog posts. If it is original – i.e. if the influencer has made free and creative choices in the creation of his/her content –, such content is likely to be protected by copyright.
Since the first owner of copyright is always a natural person, the influencer is necessarily the owner of the copyright in the content that he/she creates. Even if this content has been created at your request, you do not automatically own the rights to it.
However, you can acquire the rights by adding a clause in your partnership agreement with the influencer that provides that the latter assigns (or grants you a license to) the copyright of the created content. Note that in this case the compulsory statements provided for by Article XI.167, §1 of the Belgian Code of Economic Law (regarding duration, territory, exploitation and compensation) do not in principle have to be indicated since the content was created as a work on commission. However, the assignment of rights must be expressly indicated.
We also advise you to include a clause in which your influencer gives you permission to use his/her image rights for specific instances, such as when they appear in the created content (e.g. in a photograph).
2. Can I reuse the content created by my influencer for my own marketing initiatives?
1. If the influencer has assigned or granted a license to his/her intellectual property in the partnership:
In this case, you can reuse for your own marketing initiatives the content your influencer has created. The influencer, however, retains his/her unassignable moral rights to the content. These are the right of paternity (the influencer’s name should be stated on the content), the right of integrity (only the influencer is entitled to modify his/her content) and the right of disclosure (only the influencer is entitled to disclose his/her content for the first time).
However, you can add a clause in the agreement stating that the influencer waives his/her moral rights. Please be aware that moral rights cannot be waived for the future in a global way and that the influencer should at least retain the right to object to any amendment to the content that would be likely to damage his/her honour or reputation
2. If the influencer has not assigned or granted a license to his/her intellectual property in the partnership:
If no assignment or licence is provided in the agreement, then you are entitled to freely use the sharing tools of the social networks on which your influencer has posted his/her content. Indeed, by using these networks, the influencer has accepted the general terms of use that generally allow the sharing of his/her posts.
3. Can I check and edit my influencer's content before its publication on social networks?
You are entirely free to include in the agreement terms that allow you to control the content that the influencer will post and to force him/her to make certain amendments. Since the content is a “work on commission”, the influencer's creative freedom can be diminished (to a reasonable extent) without infringing his/her moral rights.
4. What rights do I have to the content if my influencer did not create it on his/her own?
It is usual for an influencer to use the services of third parties to create content. This can be a photographer, a graphic designer, a videographer, etc. Most of the time, these third parties will also have rights to the content.
Therefore, you should include a clause in your agreement with the influencer in which he/she should warrant that the created content does not infringe the intellectual property rights and/or any other rights of any third party. You should also state in this clause that the influencer indemnifies you against any claim that may be brought by third parties in this regard.
5. What if the influencer posts content that damages the image/reputation of my trade mark?
Generally, an influencer's account on social networks is not limited to promoting your trade mark. The influencer is of course entitled to promote trade marks of other brands (unless the agreement contains an exclusivity clause) and to publish his/her own content. It is therefore not unusual to see influencers publishing content that is incompatible with the standing or values of your brand on the same account on which they promote your trade mark.
Such content could be associated with your trade mark and, consequently, damage its image and/or reputation. To avoid this issue, you are entitled to add a “moral clause” in the contract in which the influencer agrees to not publish any content that would damage the image/reputation of your trade mark and that, failing that, you are entitled to terminate the agreement and claim for reputational damage.
