Influencer & Celebrity Marketing: How influencers, brands, marketing agencies and talent agents get it wrong.

Enrico Schaefer - March 3, 2021 - Content Licensing, Right of Publicity- Name & Likeness


Welcome to Tech Law Radio. My name is Enrico Schaefer. Today we are going to have dive into legal issues in the influencer space. There is an increasing number of brands, talent agencies, and influencers looking to leverage influencer marketing. Each stakeholder in this game has its own point of view and distinct legal issues.

Celebrities, Influencers, Talent Agents, Marketing Agencies & Brands.

We represent some of the top influencers and celebrities in the world. We represent agencies, marketing agencies trying to line up influencer campaigns for their clients, for brands. We represent brands that are trying to protect themselves in the influencer game.

Risks for all stakeholders include FTC Part 255 regulations for endorsements and influencer contract drafting and, in this game, one of the things we’re going to be talking about is, you know, intellectual property. There’s a photo or a video. That means there’s a copyright, and someone will own that copyright, and the person who is going to use it or distribute it or otherwise is going to have to have some license –license means permission– for that copyright. Then there’s going to be publicity rights: name and likeness. If you are an influencer or celebrity, you’re also allowing someone to use your name and your likeness. What permission did you grant for the use of your name and likeness? Also known as publicity rights. If you’re a brand, what rights did you receive to use someone’s name and likeness?

Exactly What Can You Do With That Influencer Post or Video?

In the influencer-marketing game, whether you are an influencer, a marketing agency, a talent agent, or a brand, you need to be thinking about this concept of permission, which we refer to as a license. Are you granting broad or narrow rights to use, distribute, reproduce or transform that picture or video? What permission am I receiving when I enter into a contract with an influencer to participate in an influencer marketing campaign?

The Difference Between An Endorsement & A License

A brand hires through an agency, an influencer, to do three posts promoting and endorsing their product or service. Seems simple right? But it’s not because, just because you’ve agreed on the number of posts, the fact that the posts will be going to go to the Influencer’s Instagram feed, and the amount you will pay the influencer. These are the contract terms that are the most obvious to all the stakeholders in the influencer-marketing game. But there are legal issues that are even more important.

As an attorney specializing in influencer marketing, it never ceases to amaze me how often the permission part is overlooked. Just because you post an endorsement on Instagram doesn’t confer any other rights to use, distribute, reproduce or commercialize. Posting doesn’t mean that the brand has permission to repurpose it on their Instagram feed. Or to take that Instagram post and publish it onto their website. Or to take that Instagram post and put it into a YouTube video. Or to take that Instagram post and use it for some offline marketing campaign. Or take a screen capture of that Instagram post and put it into some marketing flyer that gets converted into a PDF.

All of these legal issues implicate permission. What permission was provided between the parties, and what permission was received between the parties? And the scope and types of permission are more complicated legal issues requiring more careful drafting. An Intellectual Property attorney who specializes in influencer marketing will help you draft the language around permission and educate you about how it all works.

Copyright Licensing as a Form of Permission.

The person who takes a photograph or the video is typically the copyright owner unless there’s a written work-for-hire agreement that says otherwise. If the influencer or celebrity is holding the camera, the influencer is also the copyright owner. If the influencer brings in a friend to do the filming –absent a written work for hire agreement to the contrary- the person holding the camera owns the copyright. Does the influencer even have the right to provide that work to an agency? Starting with the actual capture device – camera, cellphone, or whatever – through the publication of that photo or video, ownership and permission are key. Through the brand’s use of that video or photograph, you have to be thinking about what license rights exist, what ownership rights exist, what you can license, what can be licensed to you.

What are Publicity Rights & How Are They Different than Copyright?

Under copyright law, lawyers speak in terms of the license.’ With publicity rights, attorneys also talk about licenses or permission. If someone takes a picture that captures your face –that face is recognizable– and uses it in marketing, they have to have your permission because they’re using your likeness for their commercial gain. So, if you take an incidental photo or video on the street and it includes a bunch of other people and then you post that as part of an advertising campaign, technically, you may be violating the third party’s –who is in that video–, their publicity rights. You’re violating their right to their likeness. They didn’t agree to allow their likeness to be used for commercial purposes. If your name is also attached to that endorsement, the brand must also pay for the use of my name.

License Rights & Permission Are Flexible

If you’re a brand, you can pay for broad rights or limited rights. If you’re a marketing agency working on behalf of a brand, you can pay for an endorsement –which is a single post on Instagram. Or you obtain broad license rights so you can distribute, use, commercialize, copy and repurpose a work by paying more. You don’t even need a license if an influencer is simply posting something on their Instagram feed. You may have an influencer contract that says the influencer is going to post an endorsement on Instagram. But if you want to share that post on your feed or repurpose that post in any way, you’re going to need a license which grants you that right. You can allow that post to be used on the brand’s website. You can provide permission or license to download the video using some third-party software. You can state clearly how long the video gets to say there, maybe only for the contract term or for a month. There are so many different ways to slice and dice a license – to scale up and scale down the pricing.

Draft Your License Based on Budget.

Do you have a brand that has a small budget? Great. Typically, you would provide them fewer permissions, fewer rights to use the works. You have a brand that is not sure what they’re going to do with it, but they want to start with a post? Great, you can have a contract that provides the endorsement language and, if necessary, some license rights, to both name and likeness and copyright but then if the brand wants to come back later and say, “You know what we really love that video, we want to put it into a YouTube” they can come back, and they can now pay for a license for that. So, slicing and dicing the permission is absolutely the best thing about the influencer-marketing game.

What If A Brand Exceeds The Permission Granted by the Influencer or Celebrity?

We’ve talked about this fundamental concept of a license, of permission, of ownership. Let’s talk about what happens if you get that wrong. In the copyright area, if someone uses a work, a video, audio, a photo without permission of the copyright, you are potentially liable for copyright infringement, including statutory damages up to 150,000 dollars and attorney’s fees. If you are the brand, you want to make sure you know what permissions have been granted and only use the works within your license rights.

If you are an influencer or celebrity, you need to be monitor and enforce your copyright to make sure there are no unauthorized uses. Again, statutory damages under copyright law can be severe.

Alright, that’s it for today. I enjoy the influencer-marketing space. I love my influencer clients. I love the talent agents that I get to work with on behalf of my clients. I love the marketing companies that I work with who are putting these great campaigns together. And I love the brands that see the power of influencer marketing. My name is Attorney Enrico Shaefer. We’ll see you next time.

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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by attorney Enrico Schaefer, who has more than 20 years of legal experience as a practicing Business, IP, and Technology Law litigation attorney.