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Here, founder and senior lawyer at Social Law Co. and chair of the Australian Influencer Marketing Council (AiMCO) Guiding Council, Tegan Boorman, gives us the lay of the land when it comes to influencers and IP.
As more money is funnelled into influencer marketing, the risks of a significant dispute arising between influencers, brands and/or third-party intellectual property rights holders increase. Putting an influencer agreement in place for each campaign is crucial to enable both parties to minimise their risk. Where there is no influencer agreement in place, the facts of the scenario will need to be considered to determine the liability of each party when loss arises. This is high risk for both parties and will likely end in significant legal costs for both sides.
One of the key points of negotiation for any influencer agreement is always intellectual property rights, but what are the rights of the parties, and how are these rights commonly varied through influencer agreements?
Copyright
Under Australian law, copyright subsists in original literary, dramatic, musical or artistic work if the first publication of the work took place in Australia, or the author was an Australian citizen or a person resident in Australia. Assuming a brand engages an individual Australian influencer to personally create original video or photographic content as an independent contractor, copyright will automatically subsist in that video or photographic content and will generally belong to the influencer as the author of that content.
If, however, the influencer is engaged by the brand as an employee under an employment agreement, copyright in the content the influencer creates in the course of their employment duties will generally vest in the employer, unless otherwise agreed.
Brand’s use of an influencer’s content
For a brand to obtain rights to use content created by an independent contractor influencer, the influencer will generally provide the brand with either a licence or a full assignment of the influencer’s intellectual property rights in the specific piece of content.
Whether a licence or full assignment is provided by the influencer largely depends on the budget for the campaign, as a full assignment of rights usually attracts a much higher fee charged by the influencer. If the brand only requires use of the content for a limited purpose and for a short period of time, often a licence is the more cost-effective option.
If rights are provided by way of a licence, the terms of the licence in the influencer agreement will set out how the brand can use that content during the relevant licence period.
Moral rights
The influencer will also have moral rights in relation to the content, including the right to be identified and named as the author of the content, the right to stop someone else being credited as the author of the content and the right to ensure that the work is not subjected to derogatory treatment.
Influencers can provide consent in the influencer agreement for the brand to perform acts or omissions which might otherwise infringe on those moral rights, but for that consent. For example, consent for the brand to edit and reformat the content, or to use the content without crediting the influencer as the author.
Music in influencer content
If an influencer uses music in their content, such as adding music to a Reel uploaded to Instagram, and that Reel constitutes commercial advertising for the brand, the parties will need to ensure that the influencer and the brand have suitable rights to use that music for commercial advertising purposes. A failure to do so may expose both the influencer and the brand to claims from the relevant rights holder and will also usually constitute a breach of the social media platform’s terms and conditions, depending on the platform.
Obligations in relation to music rights would ordinarily be set out in the influencer agreement, as well as relevant warranties and indemnities in relation to those obligations.
Rights holders are increasingly taking legal action in response to infringements on their rights in relation to use of music in social media advertising, particularly in the US.
Trade marks
It is becoming more common practice for influencers to register their name and personal brand marks as trade marks. A trade mark distinguishes a trader’s unique brand, product or service from other competitors in the market. Trade marks can be used to protect a logo, phrase, word, letter, colour, sound, smell, picture, movement, aspect of packaging or any combination of these.
All parties involved in influencer marketing campaigns intending to provide other parties with rights to use their trade marks should ensure that those trade marks have first been registered and that appropriate licences are set out in the influencer agreement.
Confidential information
Influencers and brands often share confidential information during an influencer marketing campaign. The influencer agreement usually sets out how confidential information should be dealt with by the parties during each stage of the campaign.
Insurance
Policies of insurance are available to be taken out by the parties to protect them from loss arising out of civil liability for unintentional infringement by the insured of any intellectual property right.
Looking to the future
As the influencer marketing industry continues to grow and mature, careful attention should be given to intellectual property rights and any possible infringement on intellectual property rights arising out of a campaign. Steps can be taken to minimise each party’s risk, such as by obtaining professional advice, ensuring appropriate influencer agreements are in place and ensuring that the parties are supported by relevant policies of insurance.
