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7 Ways Companies and Content Creators Can Navigate Copyright Law for a Successful Partnership

June 1, 2024 Articles
The Intellectual Property Strategist

In recent years, the advent of the social media “influencer” has revolutionized advertising. Companies often partner with influencers to market their products, hoping to tap into the influencer’s devoted audience. Likewise, influencers create certain content to secure brand deals and attract advertisers. However, this relationship can be fraught with legal issues, including in the arena of copyright law. To prevail on a copyright infringement claim, the plaintiff must prove: (1) the plaintiff owns a valid copyright and (2) the defendant engaged in unauthorized copying of protected elements of the work.

In this article, we list seven recommendations for both influencers and companies to consider in order to protect themselves against copyright issues.

1. Draft and Enter into Clear Agreements

All parties’ rights and obligations should be outlined in a clearly written contract. Both influencers and companies should be independently represented by qualified counsel to ensure that everyone’s expectations are met. The contract should specify who owns the posted content and any approval procedures for such content. The contract should also include whether the company secures a license or assignment of rights to use the influencer’s content for marketing purposes. And it should explain the process for obtaining the necessary permissions for any copyrighted content from third parties (for example, music or photos used in the influencer’s posts). If a legal dispute occurs later, a court will closely analyze the terms in such contracts. For example, in the Bang Energy drink cases, which involved alleged copyright infringement of famous songs by influencers’ sponsored posts, the court analyzed the work for hire agreements that Bang Energy had with social media influencers. See Sony Music Ent. v. Vital Pharms., Inc., 2022 WL 4771858 (S.D. Fla. Sept. 14, 2022), and UMG Recordings, Inc. v. Vital Pharms., Inc., 2022 WL 2670339 (S.D. Fla. July 11, 2022). In those agreements, Bang Energy agreed to pay a certain percentage of profits for influencers to market their products, and in return the influencers’ posts were subject to Bang’s supervision, editing, and approval. The terms of these contracts were significant to the court’s analysis of whether Bang Energy was liable for contributory and vicarious copyright infringement of the music label’s songs.

2. Create and Post Original Content 

Influencers should ensure that the content they post is their original work. Posting a third party’s music, photos, words, images, or other creative work without the author’s explicit permission creates potential liability. Even derivative works, such as an edited version of a copyrighted photograph without the photographer’s permission, could qualify as copyright infringement because the original creator has exclusive rights to create derivative works from their original content. In one of the Bang Energy drink cases, the court found that Bang Energy had directly infringed because it posted the influencers’ videos that used short snippets of copyrighted music without permission. Sony Music Ent. v. Vital Pharms., Inc., 2022 WL 477185, *14.

3. Receive Permission and Provide Proper Attribution

If influencers or companies get permission or a license to use someone’s original content, they should ensure that the posted content gives proper credit to that party. This helps minimize misunderstandings and disputes. For original works of authorship, content creators should consider adding their own copyright notice to posted content as well. 

4. Register Creative Works With the Copyright Office

In the United States, one can only sue for infringement if the work has been registered with the Copyright Office. The best practice for influencers and companies is to register unique content for copyright as soon as it is created. Registering also creates a presumption of validity and is the easiest way to satisfy the first element of copyright infringement—ownership of a valid copyright. In McCandless Grp., LLC v. Coy Collective, Inc., the court found no genuine dispute as to whether a valid copyright existed because the influencer had registered hundreds of her photographs with the Copyright Office. 2023 WL 8351525, at *7 (C.D. Cal. Oct. 23, 2023). 

5. Consider a Formal Process for Company Supervision and Approval

Brands should consider to what extent they have an approval process for influencer-generated content. This can be a double-edged sword. On one hand, controlling influencer content minimizes the chances of copyright infringement, but it could also increase the likelihood that a court will find the company liable for contributory and/or vicarious infringement. For example, in Sony Music Ent. v. Vital Pharms., Inc., on summary judgment, the court held that Bang Energy was liable for vicarious copyright infringement because, among other things, the company engaged influencers, paid them, supplied them with Bang Energy products, helped edit videos, approved videos, and owned those videos. 2022 WL 4771858, at *18. Vicarious infringement requires the elements of requisite control and direct financial benefit, and the court found both those elements were satisfied because Bang Energy had the practical ability to stop or limit the infringing conduct. However, the court ruled that there were disputes of fact on the contributory infringement question. Id.; see also UMG Recordings, Inc. v. Vital Pharms., Inc., 2022 WL 2670339, at *9. Contributory infringement requires knowledge of infringement, and the court found that Bang Energy could have believed in good faith that the influencers’ use of the copyrighted music was not barred by law. Id. Companies should keep in mind how their level of oversight over an influencer’s content could affect a court’s analysis of such claims.

6. Monitor Posted Content

Companies and influencers should monitor their posts for any potential landmines and take quick action if any issues arise. They should consider using reverse image searching tools to determine if the published content exists online elsewhere. 

7. Know the Fair Use Doctrine

The fair use doctrine allows for the limited use of copyrighted material without permission under certain circumstances. The factors courts consider include: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use upon the potential market. In Whiddon v. Buzzfeed, Inc., a court found that a media outlet’s use of an influencer’s photographs without permission was not copyright infringement because it qualified as fair use. In this case, an influencer’s photographer friend had taken pictures of the influencer immediately after her motorcycle accident, and the post went viral as some commenters found it in poor taste. Buzzfeed published an article about the controversy, using the exact photos and words of the influencer’s posts without permission. The court found that the fair use doctrine applied because although the photos were creative (factor 2), Buzzfeed’s use of the photos was transformative because it reported on the controversy (factor 1), using the entire post was reasonable for that transformative purpose (factor 3), and Buzzfeed’s use did not compete with the photographer’s work in the market (factor 4). Whiddon v. Buzzfeed, Inc., 638 F. Supp. 3d 342, 350 (S.D.N.Y. 2022). Influencers and companies should familiarize themselves with the fair use doctrine to know when it can be used for and against them.

In arrangements between influencers and companies, planning, diligence, and clear communication are required. By understanding some of the risks posed by copyright law and by following the above recommendations, influencers and brands can protect their creative works and reputations and build a mutually beneficial partnership.

Reprinted with permission from the June 1, 2024 edition of The Intellectual Property Strategist © 2024 ALM Global Properties, LLC. All rights reserved.

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