One very important detail of brand collaboration is often overlooked: content ownership. You may be surprised to find out who has rights to and owns the content you create on a brand’s behalf. Historically, the brand or marketer who was paying for the content, whether directly or indirectly would own the content in its digital form with the rights to reuse it digitally. Many brands re-share influencer’s content in their consumer newsletters, on their blogs, and on their social media channels.
But the re-purposing of content can be beneficial to brands and influencers alike. For brands, it extends the life of content and makes influencer marketing a very efficient source of content from a budget standpoint. For influencers, when the content is properly attributed to them, it increases exposure by placing them directly in front of the brand’s audience. It also demonstrates credibility for the influencer and augments their clout with other brands.
Over the last couple of years, brands have begun to extend the traditional definition of ownership. This is happening in large part because brands see the effectiveness of influencer marketing and influencer created content on their target audiences. Influencers started to see their images stripped of watermarks and appearing in ads. Brands demanded influencers send them every photo, even if they weren’t used in the campaign and requested raw video files that the brand could edit into other productions. These uses of content and requests for additional content are in many cases legally acceptable based on common contracts in the industry. Many times the brand does not even have to credit the influencer who created the content. This expansion of content use and sharing has made content ownership a hot topic and one we thought worth digging into more deeply for you.
We reviewed a number of contracts and spoke to influencers, agents and lawyers to help you better understand contract language and avoid unpleasant situations. We came across contracts that explicitly address content ownership and those that are poorly written and harder to understand. At the end of the day, these are only guidelines and it is up to every influencer to protect themselves by carefully reading every contract they sign.
Most contracts refer to ownership of content in one way or another but we found that language can vary highly. The most common terms we found that refer to content ownership are: ownership, intellectual property, work for hire and social media content. Pay special attention when you see these terms and talk to a lawyer if you are confused about their meaning.
Legal language is broad and at times, very hard to understand. Here are a few examples of language that we saw in contracts.
Example 1 “Ownership of Work Product. All work product or Content created by Influencer in connection with the Program shall solely belong to brand and agency and agency ownership rights shall not be affected in any manner by the termination of this Agreement for any reason whatsoever.”
As you can see, this is fairly straightforward. Ownership clearly belongs to the brand and agency who are contracting the influencers.
Example 2 “Influencer agrees that all videos, content and other work product created and submitted to Agency or Client (“Work Product”) shall be considered a “work made for hire” for Client and may be used by Client in perpetuity for any lawful purpose, without restriction. To the extent such Work Product is deemed not to be a work made for hire, Influencer hereby sells, assigns and transfers all right, title, ownership and interest therein, presently known or hereafter ascertained, without any restrictions as to use, to Client, and its successors, assignees and/or licensees. Without in any way limiting this sale and assignment, Influencer hereby waives any and all moral rights he/she may have in the Work Product so that Client may use, modify and revise the Work Product without restriction or attribution to Influencer. Influencer understands and agrees that other than the fee set forth in the SOW, Influencer will not receive any monetary compensation for the use of the Work Product. Except in connection with the services, Influencer shall not use the Work Product for any purpose without Client’s prior written consent. All Work Product is subject to the approval of Client and Agency. Agency and Client shall have the right to use Influencer’s name, likeness, photograph, voice, performance and biography in connection with Agency and Client’s usage of the Work Product.
There are few things that stand out to me from this example. One, “in perpetuity”, which means the brand can reuse the content the influencer is creating over and over, in any place they want, at any time. Two, “Client may use, modify and revise the Work Product without restriction or attribution to Influencer”, this means the brand can legally remove watermarks and edit images and video, etc. and not have to attribute back to the creator. Three, “Except in connection with the services, Influencer shall not use the Work Product for any purpose without Client’s prior written consent”, in essence, the influencer couldn’t reuse their own work at a later time without written consent.
For many influencers, these red flags don’t appear until after you see your image in an ad with no mention that you created it. Beyond frustration and hurt feelings, understanding who owns your content and for how long has major implications for you as an influencer.
Some influencers will increase their rate by two to ten times if a brand wants to own their content in perpetuity. For example, if you normally charge $250 for a blog post that you license to a brand for 90 days, you could charge $500 – $2,500 for the same post if the brand wants to own your content in perpetuity. If a brand owns your content not only can they use it any way they like, but you can’t. You can’t use a stock image in a blog post or a clip of a song you don’t own in a video. According to a few people we spoke with, half the value of an agreement is based on usage, where the content will be used and for how long.
As we researched this post, we found that influencers who work with an agent or other representative often times do not assign ownership to the client as in the examples above. In those cases, the influencer continues to own their content and the brand is granted a license to that content for a short period of time.
Even if you don’t work with an agent, you have the right to edit or refuse to sign a contract you are uncomfortable with.
As an influencer advocate, here are my suggestions of four things every influencer should do before agreeing to work with a brand:
- Read every contract very carefully. Each contract will have a section that outlines ownership. If you run into confusion or language you don’t understand (which is very common) it is a good investment to have a lawyer look them over. I suggest Hashtag Legal as they provide legal services for social media professionals, creatives and influencers. If you do not see ownership specifically mentioned, edit the contract to make you the owner who assigns rights to the brand for 90-120 days.
- Know which ways you are comfortable with your content being re-used and over what length of time. If you come across contracts that fall outside those parameters suggest changes and make edits so you are fully comfortable with the legal language.
- Have a variety of rates that include brands owning raw video files and high-resolution images and other types of content you are creating on their behalf.
- Create your own or work with a lawyer to establish a standard contract that you use or that you can add to any brand contracts you receive.
The way content is re-used by brands has changed and expanded. Many influencers are not comfortable signing away all rights to their content only to see that same content appear in other forms for which they are not credited. The best way to prevent that from happening is to be educated and aware of what you are agreeing to up front.