Does Your Brand Have The Rights To Your Influencer's Sponsored Content?
Back in 2018, two influencers sued the media company PopSugar for allegedly taking their content without permission and reusing it for monetary gain. Cathy O’Brien and Laura Adney filed a lawsuit in a California federal court alleging that PopSugar decided to capitalize on their social media followings by copying and posting many of their Instagram images, profile photos, and Instagram images on its own website without authorization. It was not the first time the company had been sued for this reason, and it sparks the question - do people have a solid understanding of who owns influencer content? It's a question of great importance and interest for brands, influencer marketing agencies, and influencers themselves. The answer to the question can be somewhat complex, and there are numerous considerations that all parties need to understand before engaging in an influencer marketing campaign.How Does Agency Content Ownership Work?
In most instances, agency relationships involve something called work-for-hire. Typically, the normal work-for-hire relationship works like this; the agency creates content, and it is given to the client. Once the client has paid the agency, the client officially owns that content because they contracted the agency to do that work, and compensated them accordingly.How Does Influencer Content Ownership Work?
The model mentioned above is not often applicable to influencer content, and there's a reason behind it. In the case of influencer content, the influencer creates the content and then publishes it on their own social channels. Sponsored or branded content provides benefits to the influencer's brand and reputation, so they must maintain the copyright of that content in order to keep it on their channels moving forward. In this instance, what the brand needs is a content license. What we do here at Viral Nation is we license the content from the influencer as part of the contractual agreement, and then sub-license it to the brand. The only caveat is that the brand doesn't have the authorization to resell the content. However, if the brand wants to repurpose the influencer's content - perhaps in a social update or another marketing asset - that's ok. Influencers, however, need to be aware of this as well. Online creators need to ensure they're reading the contracts and understanding all the considerations entailed within them. Are they granting rights to this content for a limited period of time? In perpetuity? These are important questions to have answered before entering into a contractual agreement. That way, influencers are not caught off guard when they see brands using their content. It's crucial that as you begin to sign contracts, whether you're the agency, the brand, or the influencer, that you understand who owns the content, who licenses the content, and the licensing terms of that content moving forward (if applicable).The Emily Ratjkowski Story
As we alluded to at the beginning of this piece, the subject of content rights is one rife with controversy and confusion. We need look no further than the story of Emily Ratjkowski to see this very issue. Back in May of this year, the model revealed that she's been working on a book of non-fiction essays during quarantine, focused on subjects around owning her self-image. One of the essays was published back in September and was met with great support from the online creator community. "Buying Myself Back," Ratjkowski's first published essay on The Cut, describes a series of times when others claimed ownership of her images. It begins with an instance in which she was being sued for $150,000 in damages for reposting a paparazzi photo of herself. Here's an excerpt from the essay, in which Ratjkowski details how she was essentially exploited out of her content rights by various individuals. I sat down on a bench and Googled my name, discovering that I was in fact being sued, this time for posting a photo of myself on Instagram that had been taken by a paparazzo. I learned the next day from my own lawyer that despite being the unwilling subject of the photograph, I could not control what happened to it. She explained that the attorney behind the suit had been serially filing cases like these, so many that the court had labeled him a “copyright troll.” “They want $150,000 in damages for your ‘use’ of the image,” she told me, sighing heavily.When I realized we had the opportunity to procure this one, it suddenly felt important to me that I own at least half of it; we decided to purchase it directly from the artist and split the cost down the middle. I liked the idea of getting into collecting art, and the Prince seemed like a smart investment. But mostly, I couldn’t imagine not having a claim on something that would hang in my home. And I knew my boyfriend felt like this was some kind of conquest; he’d worked hard to get it. I should be appreciative, I thought. Just split it with him. Besides, I was 23; I hadn’t made enough money to comfortably spend $80,000 on art.
When the piece arrived, I was annoyed. I’d seen online that other subjects of the Instagram paintings were being gifted “studies,” the smaller drafts of the final works. My boyfriend asked the studio, and some months later, a 24-inch mounted black-and-white “study” arrived. It was a different shot than the large piece we had purchased, but I still felt victorious.
When our relationship ended, about a year and a half later, I assumed he wouldn’t want the canvas — a giant picture of me, now his ex — so we began to make arrangements to divide our belongings, including the artwork we had bought together. In exchange for two other pieces of art, I received ownership of the Prince.
A few weeks later, I realized — sitting up straight, half-asleep in my bed with my jaw clenched in the middle of the night — that I hadn’t collected the black-and-white study the studio had gifted to me. My ex told me he “hadn’t thought about that” and told me he’d moved the piece into storage. We went back and forth via email until he told me I needed to pay him $10,000 for the study, a price he’d arrived at from his “knowledge of the market.”
“But it was a gift to me!” I wrote.
I reached out to Prince’s studio. Could they offer some clarity or assistance? Help me get him to back off this ridiculous ransom? Through my contacts, I was assured that they would reach out to him to confirm that the study had been a gift from Prince to me and me alone. He didn’t respond well to this assertion.
All these men, some of whom I knew intimately and others I’d never met, were debating who owned an image of me. I was considering my options when it occurred to me that my ex, whom I’d been with for three years, had countless naked pictures of me on his phone.
I thought about something that had happened a couple of years prior, when I was 22. I’d been lying next to a pool under the white Los Angeles sun when a friend sent me a link to a website called 4chan. Private photos of me — along with those of hundreds of other women hacked in an iCloud phishing scam — were expected to leak onto the internet. A post on 4chan had compiled a list of actresses and models whose nudes would be published, and my name was on it. The pool’s surface sparkled in the sunlight, nearly blinding me as I squinted to scroll through the list of ten, 20, 50 women’s names until I landed on mine. There it was, in plain text, the way I’d seen it listed before on class roll calls: so simple, like it meant nothing.
-Emily Ratjkowski, model and author of "Buying Myself Back" on The Cut
Facebook Gets Ahead Of The Curve With New Imaging Rights For Creators
As the conversation around influencer content rights continues to be a hot topic, social platforms like Facebook are getting out ahead of it, providing creators with additional controls over the images they own and how they can use them across the platform. The Facebook Rights Manager for Images is an extension of the Creator Studio features that enables creators and publishers to control how their content is being distributed on Facebook and Instagram. Facebook Rights Manager now integrates image matching technology so that creators can protect and manage their image content. “We want to ensure Facebook is a safe and valuable place for creators to share their content,” said Dave Axelgard, Product Manager for Creator and Publisher Experience at Facebook. “That’s why we built tools like Rights Manager in Creator Studio to help creators and publishers who have a large or growing catalog of content better control when, how and where their content is shared across Facebook and Instagram." In order for the creator's images to be protected via the Rights Manager, Page admins must submit an application. Once submitted and approved, the tool then matches relevant content across both platforms (Facebook and Instagram) This is a big step in the progress towards creating clearer (and fairer) guidelines for the content rights of influencers. As tactics like influencer marketing become even more prevalent in the advertising world, it's imperative that brands and influencers alike continue to push the needle on establishing the semantics involved in modern-day content rights.The Future Of Influencer Content Rights
Influencers are experts in their field. They create content that appeals to and resonates with their audience. And when their audience aligns with that of your brand’s target audience, it can be a match made in marketing heaven. The content from influencer marketing campaigns has many benefits, but one that is often overlooked by brands is the ability to repurpose content assets produced for these campaigns. When it comes to influencer brand partnerships, it is estimated that approximately 60% of their budget is directly invested towards reaching the target audience. The remaining 40% is then spent on content creation, which holds great value due to its ability to be reused and repurposed. Influencers are becoming keener on the value they bring to brand marketing efforts, and likely will continue to negotiate further content rights to brands to essentially 'license' the ability to reuse the content across a range of marketing channels. With this increased use of influencer content, the need for establishing modern content rights will be more important than ever. And despite the uncertainty that exists throughout the world from the global pandemic, we predict that 2021 will be the year where brands begin to fully harness the potential of influencer content. Look for brands to continue upping the ante on how they repurpose influencer content for alternative marketing methods, and also adjust and refine their contracts accordingly. It's truly a win-win; creators get to retain a sense of ownership and increased compensation, while brands will be able to reach wider audiences in a genuine, authentic way.