September 7, 2016
Social media “influencers” – individuals who are powerful, popular and relevant enough to influence others within their online social sphere – generate ad dollars, product endorsement opportunities and other revenue streams using social media platforms such as Facebook, YouTube, Instagram, Twitter, Snapchat, Pinterest and Twitch. However, as social networks become more interactive and publicly accessible, YouTubers and other influencers become more susceptible to certain legal risks involving intellectual property (IP).
What is intellectual property, and how can influencers protect themselves?
Copyright-Protected Works
Copyright is a type of intellectual property that protects original works of authorship, such as photographs, videos, written text, artwork, sound recordings and other creative materials. Among other things, the federal Copyright Act affords copyright owners the exclusive right to copy, distribute, display and perform their respective original works.
Social media influencers make sure that they have appropriate permission (or otherwise qualify for a copyright exemption, such as “fair use”) before using the creative works of others in videos, images or the text of social media posts.
Brand Names and Logos
Trademarks are a form of intellectual property used to identify, distinguish and indicate the source of the goods and services of one seller from those of others. The federal Lanham Act and related state laws prohibit the use of third-party trademarks in a way that confuses consumers.
Generally, YouTubers and other social media influencers should obtain the written permission of any third-party brand owner whose name, logo and/or product is/are featured in a video or other post. Social media influencers should also ensure that they comply with applicable product endorsement regulations – especially those influencers who are compensated or receive free products from brand owners or advertisers.
Name and Likeness
Separate intellectual property rights exist with respect to a person’s name and likeness. The laws of at least 47 states have acknowledged a “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.
Influencers’ Intellectual Property
In many cases, YouTubers and other social media influencers might be able to protect, register and/or enforce their own intellectual property. For example:
- Online aliases, logos, slogans, series names and even hashtags may be protectable as trademarks;
- Original photos, videos, text, artwork, sound recordings and other creative works may be protectable under copyright; and
- Third-party use of an influencer’s name, image or likeness may be protectable as a right of publicity.
Are your social media practices IP compliant?
Strict intellectual property regulations, and constant public scrutiny, place non-compliant YouTubers and other social media influencers at substantial risk. Furthermore, in light of recent regulatory crackdowns, influencers can expect more and more advertiser written agreements to hold influencers responsible for copyright, trademark and right of publicity mishaps.
In light of these regulatory and contractual risks, social media influencers and affiliated advertisers should always consult with a knowledgeable intellectual property attorney before repurposing third-party intellectual property or attempting to register or enforce their own IP. If you are interested in learning more about this topic, or if you are a social media influencer in need of 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.
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Warner Bros. Settles FTC Claims of Paid YouTuber Endorsements