Social media influencers (“Influencers”) are people whose online popularity and relevance grant them influence over others within their social sphere. Such influence makes them highly attractive to advertisers. Typically, influencers create and post content (ex., photos, videos, and live streams) on social media platforms (ex., YouTube, Instagram, TikTok, and Twitch). Influencers earn income through ad dollars generated from their content, product endorsements, and other revenue streams. Due to the interactive and publicly accessible nature of social media platforms, influencers are highly susceptible to certain legal risks involving intellectual property.
What Is Intellectual Property, and How Can Social Media Influencers Protect Themselves?
The most important types of intellectual property for influencers and creators are copyrights, trademarks, and the “right of publicity.”
Copyright-Protected Works
Copyright is a type of intellectual property that protects original works of authorship, such as photographs, videos, written text, sound recordings, and other creative materials. The Federal Copyright Act affords copyright owners exclusive rights, including the right to copy, distribute, and display their respective works.
Influencers may be able to protect and register their Instagram photos, TikTok videos, tweets, and other creative works with the United States Copyright Office. When using a third party’s work in their content, influencers must ensure that they have proper permission or qualify for an exemption (ex., “fair use”).
Brand Names and Logos
A trademark is anything (“any word, phrase, symbol, design, or a combination of these things”) that identifies the source of goods or services. Trademarks distinguish the source (ex., creator) of goods/services from competitors in the marketplace. Trademark law prohibits using a third-party’s trademark in ways that will likely confuse consumers about the source of goods/services.
Influencers may be able to protect and register their brands, including their online aliases, series names, and hashtags, by filing for a trademark with the United States Patent and Trademark Office. Influencers need to be cautious, however, when using third-party trademarks in their content. Best practices counsel against using any third-party trademarks in a video or photo upload. When using a third-party’s brand name, logo, and/or product in their content, influencers should obtain written permission to do so. Where influencers review or promote goods/services, they must comply with applicable product endorsement guidelines.
Name and Likeness
Separate intellectual property rights exist with respect to a person’s name and likeness. Most states have acknowledged this “right of publicity,” which grants an individual the right to control the commercial use of his or her identity.
Influencers should obtain written permission before featuring any person’s name, image, voice, and/or likeness for commercial purposes in a social media post or any other media.
Social Media Influencers Need to Comply with Intellectual Property Laws
Over the past few years, federal and state regulators have begun to clamp down on the practices of YouTubers, streamers, and other influencers. Influencers must comply with relevant intellectual property and marketing laws or risk regulatory scrutiny and penalties. To date, most regulatory action concerning social media promotion has targeted advertisers and public relations firms. In light of such risks, social media influencers can expect advertiser-written agreements to hold influencers responsible for intellectual property and marketing mishaps.
In light of these risks, influencers should always consult with a knowledgeable attorney before using third-party intellectual property or registering and/or enforcing their own intellectual property rights. If you are interested in learning more about this topic or need intellectual property advice, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
This blog post was originally published in 2016 and updated on November 30, 2021.
Attorney Advertising
Photo by Josh Rose on Unsplash
Related Blog Posts:
Legal Concerns for Product Endorsements by Social Media Influencers
Trademark Consent Agreements: Applying for a Trademark that is Already in Use by Another Party
Warner Bros. Settles FTC Claims of Paid YouTuber Endorsements
