Influencers
Influencers have proven to be a staple marketing tool for brands seeking to expand their marketing reach in social media platforms, such as Facebook, Instagram, TikTok and SnapChat. Influencers are individuals that by just being themselves, have tens of thousands of loyal and engaged followers that could be potential consumers of brands seeking to utilise the influencer’s platform to promote their products or services to such followers.
KYI or Know-Your-Influencer
Brands are cautioned to be careful in their selection of influencer for the promotion of their product or service. Although it may be tempting to choose an influencer on the basis of their number of followers and reach, diligence should be performed for past social media posts as well as any Internet news articles that were published in the past.
A cautionary example is YouTube’s biggest influencer, PewDiePie,whohasover 107 million YouTube subscribers. In 2017, PewDiePie lost contract deals with Disney who severed ties with him. Disney took this decision after an enquiry by Wall Street Journal about PewDiePie’s channel posting several YouTube videos that included anti-Semitic jokes or Nazi imagery. Acting provocatively or in a non-politically manner is not without risks for influencers. There are alsorisks associated with influencers who choose to act in this way. Criticisms of posts that can include racist, sexist, bigotry, derogatory or other inappropriate content can tarnish a brand’s reputation and business if it is seen associated with such influencer, while at the same time cause personal and business damage to the influencer.
Legal and Intellectual Property Considerations
There are many legal and intellectual property considerations that brands and influencers should pay attention to when entering into a commercial agreement. Such considerations should be addressed in the commercial agreement between them and include:
- Copyright-protected works:
Copyright is an intellectual property right, which protects the expression of an idea, not the idea itself, with examples of copyright including paintings, films, sculptures, sound recordings and other creative materials. Brands and influencers should warrant that they have all the appropriate permissions and licenses from the third-party owners of copyright protected works that will appear in the content that will be produced for the promotion of the brand. For example, in the content promoting the brand can very well be a potential use copyright-protected work that belongs to a third party, such as having in the background a famous painting.
- Brand Names and Logos:
A trademark is a form of intellectual property used to identify, distinguish and indicate the source of the goods and service of one seller from those of its competitors. A trademark can be a word, a phrase, a logo or a combination. In Cyprus, a trademark is protected by virtue of its registration with the official Cyprus Registry. Brands and influencers should obtain written permission from any third-party brand owner, if the name, logo and/or product will be featured in the content produced by the brand and influencer.
- The use of name and likeness:
Influencers and brands in certain jurisdictions 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.
- Infringement of third-party intellectual property, such as copyright-protected work and trademarks, and liability/damages for such infringement.
- Assignment or license of the intellectual property rights that belong either to the brand or to the influencer.
- Ownership of the content produced for the promotion of the brand.
- Product endorsement guidelines:
Influencers who receive compensation or free products/services from brand owners, they are expected to comply at all times with specific guidelines that have been provided to them by the brand owners as to how they will endorse their products/services on social media or other media.
- Content creation guide and approval:
Influencers, if they are to create a content on their own, such as make a product endorsement in an Instagram story, may be required to follow a content creation guide provided to them by the brand or the advertiser and to upload it after they have obtained the brand or advertiser’s approval.
- Morals Clause:
In addition to any traditional termination clauses, such as for breach of agreement, failure to comply with laws or convenience, the brand or the influencer may elect to include a “morals clause” allowing the brand or the influencer to terminate the agreement for acts that could cause reputational damage if the other party has engaged in them.
IP Compliance of your social media marketing practises
Third-party Intellectual Property Rights, Intellectual Property laws and regulations, ever-increasing public scrutiny and criticism place non-compliant brands and influencers at risk that could result in hefty payments of damages.
Brands and influencers should always consult with experienced advocates and legal consultants prior to the use of third-party intellectual property rights or when they seek to register or enforce their Intellectual Property Rights. If you are interested to receive further information or if you are a brand or influencer seeking intellectual property advise, please feel free to contact us.
DISCLAIMER:
PARIS MAVRONICHIS & CO LLC accept no duty of care or liability for any loss occasioned to any person acting or refraining from action as a result of any material in this publication.
The material contained herein is provided for informational purposes only and does not constitute legal advice nor is it a substitute for obtaining legal advice from an advocate. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced advocate. PARIS MAVRONICHIS & CO LLC will be glad to assist you in this respect.
