TikTookay, YouTube, Snapchat, Instagram, Facebook, … these are all social networks which have sparked the event of a brand new type of promoting over the previous years: influencer advertising. (*5*), main brands not solely name on promoting companies to advertise their brands, but additionally depend on folks generally often known as “influencers” for his or her promotional campaigns. Influencers are people who’re lively on some or the entire above-mentioned social networks, are adopted by a big neighborhood of customers (often known as “followers”) and have constructed and maintained a type of credibility in sure sectors (akin to life-style, hobbies, tradition, enterprise, and so forth.).
Although the effectiveness of influencer advertising is now well-established, many brands are nonetheless confused about its authorized elements. The questions arising are wide-ranging and might be lined in additional particulars over the course of a number of blogposts to be revealed within the coming weeks. In this primary blogpost, we deal with the questions most usually asked by brands concerning mental property rights, for the reason that content material created by influencers within the context of their partnership with brands could be very usually protected by IP rights.
1. Do I personal the content material created by my influencer?
The content material created by influencers may be various, starting from photographs, to movies and weblog posts. If it’s unique – i.e. if the influencer has made free and artistic selections within the creation of his/her content material –, such content material is more likely to be protected by copyright.
Since the primary proprietor of copyright is at all times a pure individual, the influencer is essentially the proprietor of the copyright within the content material that he/she creates. Even if this content material has been created at your request, you don’t routinely personal the rights to it.
However, you’ll be able to purchase the rights by including a clause in your partnership settlement with the influencer that gives that the latter assigns (or grants you a license to) the copyright of the created content material. Note that on this case the obligatory statements supplied for by Article XI.167, §1 of the Belgian Code of Economic Law (concerning length, territory, exploitation and compensation) don’t in precept should be indicated for the reason that content material was created as a piece on fee. However, the task of rights should be expressly indicated.
We additionally advise you to incorporate a clause during which your influencer provides you permission to make use of his/her picture rights for particular situations, akin to after they seem within the created content material (e.g. in {a photograph}).
2. Can I reuse the content material created by my influencer for my very own advertising initiatives?
1. If the influencer has assigned or granted a license to his/her mental property within the partnership:
In this case, you’ll be able to reuse on your personal advertising initiatives the content material your influencer has created. The influencer, nevertheless, retains his/her unassignable ethical rights to the content material. These are the proper of paternity (the influencer’s identify needs to be acknowledged on the content material), the proper of integrity (solely the influencer is entitled to switch his/her content material) and the proper of disclosure (solely the influencer is entitled to reveal his/her content material for the primary time).
However, you’ll be able to add a clause within the settlement stating that the influencer waives his/her ethical rights. Please bear in mind that ethical rights can’t be waived for the longer term in a world means and that the influencer ought to no less than retain the proper to object to any modification to the content material that might be more likely to harm his/her honour or repute
2. If the influencer has not assigned or granted a license to his/her mental property within the partnership:
If no task or licence is supplied within the settlement, then you’re entitled to freely use the sharing instruments of the social networks on which your influencer has posted his/her content material. Indeed, by utilizing these networks, the influencer has accepted the final phrases of use that usually enable the sharing of his/her posts.
3. Can I examine and edit my influencer’s content material earlier than its publication on social networks?
You are completely free to incorporate within the settlement phrases that assist you to management the content material that the influencer will submit and to pressure him/her to make sure amendments. Since the content material is a “work on fee”, the influencer’s artistic freedom may be diminished (to an inexpensive extent) with out infringing his/her ethical rights.
4. What rights do I’ve to the content material if my influencer didn’t create it on his/her personal?
It is common for an influencer to make use of the providers of third events to create content material. This generally is a photographer, a graphic designer, a videographer, and so forth. Most of the time, these third events may even have rights to the content material.
Therefore, you must embody a clause in your settlement with the influencer during which he/she ought to warrant that the created content material doesn’t infringe the mental property rights and/or some other rights of any third occasion. You also needs to state on this clause that the influencer indemnifies you towards any declare which may be introduced by third events on this regard.
5. What if the influencer posts content material that damages the picture/repute of my commerce mark?
Generally, an influencer’s account on social networks shouldn’t be restricted to selling your commerce mark. The influencer is in fact entitled to advertise commerce marks of different brands (until the settlement incorporates an exclusivity clause) and to publish his/her personal content material. It is subsequently common to see influencers publishing content material that’s incompatible with the standing or values of your model on the identical account on which they promote your commerce mark.
Such content material may very well be related together with your commerce mark and, consequently, harm its picture and/or repute. To keep away from this situation, you’re entitled so as to add a “ethical clause” within the contract during which the influencer agrees to not publish any content material that might harm the picture/repute of your commerce mark and that, failing that, you’re entitled to terminate the settlement and declare for reputational harm.
