One of the biggest concerns we hear a lot from businesses is about social media laws – the legal implications surrounding the use of content created by influencers. Content is king – it’s the cornerstone of influencer marketing. But all content is owned by someone or something, and when brands hire influencers to dream up and post sponsored content the line of ownership can get a little hard to see.
We’ve talked before about how effective user-generated content is at boosting brand awareness and giving social media campaigns legs. But anytime content is created in any form, content rights becomes an issue because all content is essentially intellectual property.
So, let’s start with the basics…
Here’s a scary Halloween thought: It is possible for a brand to pay an influencer for sponsored content, have no legal rights to the content it commissioned, and then get in trouble with the FTC and end up paying fines because the influencer didn’t follow social media laws and include proper disclosures in the post. Yikes.
What is Intellectual Property (and Why You Should Care)
Intellectual property is the perceivable outcome of creativity. It is thought and ideas transfixed onto a tangible medium.
For example, let’s say an influencer in Kansas City comes up with a cool idea for a post featuring her cute, but stubborn Jack Russell Terrier.
The moment she snaps the picture, this idea becomes transfixed onto a tangible medium that other people can see – a picture. That’s intellectual property.
Let’s go a step further…
Once she publishes the picture to social media (or her blog, or her newsletter, or wherever she happens to share the picture), this picture (aka intellectual property) is automatically protected by U.S. Copyright Law.
That fast, she’s a content creator and copyright holder… even without the copyright symbol © . This is important because if you want to dive into influencer marketing and have influencers creating content for you, there are some things you will need to know about the laws governing the creation, publication and use of content.
Why an Influencer May Own Your Sponsored Content
Okay. Okay. That’s just basic stuff for content marketers. I get that. But influencer marketing is all about contracting other companies and independent service providers to create high-impact content for you. If there are no contracts in place transferring ownership of the content to you, as a brand you can easily find yourself at the mercy of the content’s actual creator… meaning, you have no right to reuse the content or cross-post it to your other social media platforms…
…. Even though you paid for it!
Think that’s a big ‘un? You may not legally own the content created, but your partnership with an influencer makes you partially liable for the content an infuencer posts during your campaign IF the social platform to which the content is posted OR governing bodies like the Federal Trade Commission do not believe your sponsored post meets compliance requirements.
Before we get too far into the whys and wherefores of content ownership, let’s quickly review the three laws and regulations the come into play with each and every influencer campaign.
3 Social Media Laws That Affect Content Creation (and Your Influencer Campaign)
While social media marketing may not be as much of a legal minefield as traditional advertising, there are still a number of important considerations to be made when launching and running a campaign. Here’s a quick overview of the legal issues that will impact your social media marketing campaigns.
#1 FTC ENDORSEMENT GUIDELINES
We can bottom line the FTC rules for you with three words: Disclosure is everything.
According to the FTC Endorsement Guidelines (which you can read by clicking here), brands and influencers MUST disclose that sponsored posts have been paid for, whether monetarily or with free products. Without clear disclosure – and it does have to be super-duper clear – you could find yourself in a heap of legal trouble and maybe even end up with official action being taken against you – not ideal.
Last year, Mediakix reported that upward of 93 percent of celebrity posts weren’t following the FTC’s sponsored content rules. But the FTC has been cracking down and leveling fines against companies and influencers who are remiss in mentioning how they benefit from partnerships.
Not into fines? Well, you need to have formal guidelines in place for your influencers to follow during any and all influencer campaigns. It’s a good idea to assign a specific person or team to oversee influencer campaigns to ensure posts are compliant. The campaign planning stage is the time when your in-house team and your influencers work together to determine which hashtags (and branded hashtags) to use in your campaigns, as well as the general idea behind captions.
The FTC requires marketers to use the hashtags #ad or #sponsored for sponsored posts. The FTC holds brands responsible for the content of sponsored posts. You can read our most recent post on the FTC’s endorsement guidelines for brands and influencers.
#2 FAIR ADVERTISING
Along the same line as making sure your the audience knows when they’re looking at one of your sponsored posts is the idea that you should also be a good sport. Refrain from bashing other brands or throwing shade at your competitors’ businesses or products. Don’t lie or embellish the truth, and don’t use other people’s logos or products to advertise your own products. Play fair.
#3 COPYRIGHT LAWS
For all the confusion and bewilderment, copyright is actually a pretty simple concept: If you created it, you own it… until and unless you enter an agreement that says otherwise.
For brands, it means influencers own the UGC they create if brands do not include clauses in influencer contracts which clearly identify the work an influencer does on your campaign as work made for hire.
A work made for hire is a work created by an employee or contracted individual, but the person, company or organization commissioning the work is the legal owner and documented author of the work.
Influencer contracts are generally customized to define the specific scope of the work and the rights afforded the brand with regard to the UGC created during campaigns. Most contracts will address several key points:
- Specifically what type of content is to be created for the campaign, including hashtags and disclosures
- Written outline describing the use of content created for your campaign across your own social media accounts
- Whether or not your company gets the full rights to the content your influencer creates
WHY CONTENT OWNERSHIP IS SO DARNED IMPORTANT
The main question around influencer-created content is who actually owns the content that is produced? When ownership is not clearly defined in writing, assume each piece of content created during an influencer campaign belongs to the individual influencer who created that content.
That means if you skip the contract, or generate a generic contract that doesn’t go into detail on how UGC can be used, you could run into some real issues further down the line when you try to use that UGC in other campaigns or on other platforms.
In general, copyright (content ownerships) establishes a couple of important rights that you’re going to want. The Copyright Act of 1976 provides that the owner of a copyright has the exclusive right to do, or authorize to do any of the following:
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work to the public by sale, rental, lease, or lending;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital-audio transmission.
Properly establishing ownership means the brand gets full (or partial) rights to the sponsored content, which makes marketing efforts much easier.
You’ll also need to clearly specify what kind of content your agreement covers. What if the influencer posts an image along with an amazingly witty and captivating tagline in their comment – can you use both in the future? What if the influencer creates an awesome graphic to accompany a sponsored post? Do you own that as well? You need to be sure both you and your influencer partners know exactly what is and isn’t covered in the contract to avoid any confusion.
Another thing to keep in mind is the appearance of third-party content in the influencers posts. Some influencers may create sponsored posts for your campaign that also includes images of people, products, locations, and other content that doesn’t belong to them or to you. This could bring up issues with intellectual property rights, too.
If there are other people in the image, you may need their written consent as well if you want to use it on your own social media. Without this, you could be violating their rights to privacy and, once again, could end up in some kind of legal trouble for it.
In a similar way, if there are any third-party logos, products, slogans, songs, or anything of that nature, these can also restrict your ability to use the content outside of the campaign… or even in your campaign. Trying to get permission for these “third-party crashers” can be a real headache, so it’s much easier if you make it clear not to use any third-party content.
Ideally, any influencer you work with should already know that using third-party content is a big no-no. Any sponsored post should steer well clear of any form of non-original content as it will always cause problems.
Different platforms have their own rules and regulations with regard to the sharing and distribution of content posted there. For example, thanks to Twitter’s re-tweet feature, sharing content produced by someone else is allowed on the platform, even without their written consent. On platforms like Instagram though, this kind of sharing goes against their rules of use.
Make sure you take this into consideration when mapping out your campaign, as it will affect how your content is produced and distributed after launching. Be sure to discuss this with your influencers too, so you can be sure they are comfortable with whatever decision you make.
Copyright Contract Checklist
You don’t want your campaign to end before it begins, so keeping all these legal obligations in mind is going to be a big part of launching a successful influencer marketing campaign. Ideally, you’ll want to consult a legal professional who can help guide you through the process in more detail and help you draw up more in-depth paperwork.
Because while we may enjoy the occasional rerun of Suits (Gina Torres… right?), we’re not lawyers. For now at least, here are the essentials to keep in mind when creating a contract with your influencer.
- Be clear exactly which aspects of their content will belong to you, and which will belong to them (think about graphics, images, video, sound, captions, blog posts etc.).
- Decide which social platforms the content will be shared on, and whether it will appear on your company profiles, or the influencer’s own profiles.
- Explain to your influencer that they cannot use ANY third-party content in their post to avoid any issues further down the line (go into detail about what this means if the influencer is unsure).
- Choose which FTC specific hashtags you want to include in the caption (the safest option here is to go with the standard #ad or #sponsored to avoid confusion) and be clear that these hashtags must be easily visible in the post.
- Try and set up an approval process with the influencer so you can check through all the content before it goes live. This way you can double check that it meets all your standards.
If you manage to check off all of these points, then you’re one step closer to protecting yourself from any negative legal issues. But, this should just be your jumping off point.
Again, we recommend working with a lawyer, or a professional influencer platform to make sure all your bases are covered.