The Legal Challenges for Influencers: The Annual Copyright Society Meeting

*** The writing does not, and is not intended to, constitute legal advice by any means***

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I have been attending Copyright Society's annual conference every Tuesdays and Thursdays for the last three weeks (held virtually on Zoom this year in light of the current situation). Today's session, which marked the end of this year's meeting, was themed around a set of unique legal issues surrounding influencers on social media. As I noted in an earlier post, the Department of Justice last year issued a guideline regarding influencer marketing, a signal that this particular industry has so far escaped the necessary level of judicial scrutiny despite its remarkably rapid growth. Indeed, in its newly published report on influencer marketing, the Business Insider forecasted that brands are expected to spend up to $15 billion on influencer marketing by 2022. This necessarily implies that new types of lawsuits will be brought before courts in years to come, some of which are already happening in New York and California, the two epicenters of the fashion industry. So I am sharing with you two valuable insights I gleaned from today's session.

1. Make sure to clear copyright related to music 

For influencer marketing, it's really common to include songs (or, at least, musical tones) in a video to pep up the viewers. However, as an influencer, you risk engaging in music copyright infringement because of the commercial nature of your use. To steer clear from potential violations, you have to get permission on a "song-by-song, use-by-use" basis, meaning you have to be granted the permission from the copyright holder(s) of a song by specifying which portion of the song you would be using for what purpose. The whole process is quite cumbersome, partly because it is difficult to locate the relevant copyright holders because music is mostly jointly created and thus jointly owned. In case you are partnered with big-name brands with deep pockets, you'd ask for help. However, if you are not, ask the following question: what's the benefit of including a song for whatever initiative you might have? With this pivotal question in mind, conduct the cost-benefit analysis to make a determination. 

2. Make sure to read the partnership agreement regarding content ownership

Despite your vital participation in the creation of a post that's to be uploaded on your social media, content ownership is dictated by the relevant provisions in a partnership agreement. Fashion brands, to varying degrees, want to exercise control over the specifics of how you share a post. Peruse each provision of the preliminary agreement to craft a negotiation strategy if you have some bargaining power as an influencer. Determine which rights you are fine to transfer and which rights you want to retain at all costs. However you want to frame this relationship, it's fundamentally contractual. Therefore, in case of a lawsuit, the presiding judge is likely to be bound by "the four corners" of the final agreement, absent some overriding policy rationales. Also, it is equally important to establish prospectively what the legal rights will be regarding your works once the partnership ends. 

In conclusion, in this era of the "copy-paste-repost" culture, unexperienced influencers might mistakenly assume that works are impliedly for public use by virtue of being out there in the world and that copyright co-ownership automatically subsist in their posts by way of contributing to the process of creation. Unless you resist those baseless assumptions, you might find yourself in a courtroom. Out of all the limelights, that's the spotlight you do not absolutely want to be thrown into as an influencer.