Posted by Post Authored By: Stephanie Nikitenko
The extensive outreach capacity of social media influencers lends itself to a variety of legal issues that must be considered when evaluating how best to comply with regulations and guidelines for opportunities that come with the job. Here are a few key areas that affect the everyday lives of social media influencers – and by extension their legal counsel.
Endorsements
One of the largest sources of revenue for social media influencers is partnering with a sponsor for advertising or promotional campaigns. This is also one of those areas with many pitfalls that can get the influencer into some trouble. The FTC has very specific guidelines about compliance with false advertising laws, including the FTC’s disclosure requirements. [1]
Some of the Do’s for complying with the FTC disclosure guidelines include having a clear denotation that there is a partnership (i.e. “ad” or “sponsored”), making sure that such a denotation is in an easy-to-see place such as superimposing the word(s) over an image to make it readily visible, or providing a simple explanation that there is a sponsorship arrangement involved with the influencer promoting a certain product or service. [2]
In November 2019, the FTC released a publicly available, quick and easy guide to these disclosure requirements that can be found here: https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf
Copyright Considerations (Images, Videos, Blogs, etc.)
To many social media influencers, their photos, videos, and blogs constitute the bulk of their content. This means that their copyright rights in those assets are significantly valuable to them and the brand that they have created for themselves.
Due to the nature of copyright infringement claims, it is usually advised that the artist or creator register their work with the U.S. Copyright Office in order to protect their rights as well as put the public on notice that their work is protected. If registration of a work is made within three months of publication of the work, or prior to infringement, statutory damages and attorneys’ fees are available to the copyright owner in the event of an infringement suit. [3] However, if the work is not registered before infringement or within three months of publication, then the remedies in an infringement action are limited to actual damages suffered from the infringement and injunctive relief. [4] With copyright, is it certainly beneficial to register early as a preventative measure.
Licensing (an Extension of Intellectual Property Rights)
When the bulk of an influencer’s content consists of copyrightable assets, licensing of those assets becomes a serious consideration. Many influencers may favor a non-exclusive license for a limited duration, or perhaps a non-exclusive license with restrictions regarding usage. Whatever the specific case may be, no one should be using the influencer’s content without their permission or a clear licensing agreement. If there is unauthorized usage, that is when cease and desist letters and infringement claims come into play.
A Cornucopia of Agreements
Influencers tend to be involved in a variety of industries depending on how they have chosen to brand themselves. For instance, beauty influencers are generally a part of the internet beauty community and therefore may have connections to other influencers, specific cosmetics brands, and may endorse certain cosmetic products (including their own). A result of an influencer being a part of so many endeavors means that there is a cornucopia of agreements that will likely cross the desk of the influencer’s legal counsel for review and negotiation. For example, collaboration agreements, public relations agreements, touring agreements, social media campaign agreements, sponsored video agreements, network agreements, merchandising agreements, and modeling agreements – just to name a few.
Defamation Concerns
An unfortunate byproduct of having a significant online presence is the potential to attract negative attention. The First Amendment obviously has clear protection over opinions, and there are plenty of those to be found on social media platforms. However, when the line into false claims starts to get crossed there becomes an increased concern that some form of defamation has occurred.
Defamation comes in two types: libel (written) and slander (verbal). They are quite a few nuances to defamation, but the general idea is that it is unlawful to (1) provide a false statement, whether written or oral, of another’s character and/or reputation; (2) publish that false statement, either in writing or orally; and (3) harm the reputation of the individual that is the subject matter of the false statement being made.
The livelihood of an influencer depends on their reputation, and if someone is publicly spreading false information about them it could impact the influencer in every aspect of what they do from endorsement deals to collaboration offers to a decline in their following. Possible defamation needs to be addressed quickly and in the correct manner. Generally, it is advised to first send a cease & desist letter to the allegedly defaming party to resolve the issue in a cordial fashion. If an attempt to resolve the issue amicably is unsuccessful, however, it may be necessary to explore more direct avenues such as filing a formal defamation cause of action in court.
In general, social media influencers need to be very conscious of their image and reputation. Having legal counsel who is knowledgeable about social media and influencer culture can be an invaluable asset to the influencer’s career.
[1] Andrea LaFrance, Gino Maurelli, and Airina Rodrigues, FTC Issues New Guidelines for Social Media Influencers, Brands, JD SUPRA (Jan. 2020), https://www.jdsupra.com/legalnews/ftc-issues-new-guidelines-for-social-40544/#:~:text=In%20November%202019%2C%20the%20FTC,FTC’s%20disclosure%20requirements%20and%20guidelines.
[2] Id.
[3] Martin Adams, Copyright Registration Part 1: Why Register Your Copyright?, AUTHORS ALLIANCE (Feb. 2018), https://www.authorsalliance.org/2018/02/14/copyright-registration-part-1why-register-your-copyright/.
[4] Id.
About the Author:
Stephanie Nikitenko recently graduated from UIC John Marshall Law School in Chicago. At UIC John Marshall, she served as the President of the Intellectual Property Law Society (IPLS) and primarily concentrates her studies on the subject of Intellectual Property. She also spent a semester working in the JMLS Trademark Clinic where she assisted clients with the Trademark Registration process with the USPTO. Additionally, under the supervision of an attorney, she currently assists a law firm with both their trademark and patent matters.