INFLUENCER CONTENT RIGHTS AND USAGE IN 2021
Brands commissioning more influencer content, and internal marketing, PR and trading teams are sharing the resulting imagery further than ever before. As a result, Usage Rights are becoming the most hotly negotiated aspect of an influencer’s contract. With outlets ranging from brand social channels to out of home, even in-store and point of sale, this means that brand teams can justify higher budgets and more returned value, treating influencer content as they would campaigns from an advertising agency. When the work is good, there’s no reason not to increase exposure, but both brands and influencers need to closely consider the options before committing, where possible.
Image @kinga_cich via Unsplash.
Rather than using vanity metrics like following size to plan influencer campaigns, forecasting fees around how content can be used, leveraged and reconstituted across channels is one of the most prevalent trends we foresee for the new financial year in 2020.
So let’s start at the beginning…
Individual image rights
Who owns images of me?
If you took the photo and you are the subject, then unequivocally you own the copyright to those images. Same goes for your YouTube video, of you talking to camera at home. However, many influencers are using a professional photographer or videographer to shoot content, and it’s here that it becomes more complex.
Who owns images taken by my photographer?
The general rule is that the photographer will own all the rights to the images he or she takes unless you agree otherwise (in writing). You should therefore ask the photographer to assign all image rights over to you by way of a written assignment and waive their moral rights to the images.
Otherwise, you may find that the photographer can restrict how you can use the images. Some photographers may agree to this without question whereas more experienced photographers will insist on retaining ownership of the images and will instead want to license the images to you for a specific purpose and period of time. Use of these images will need to be clearly defined; for example, if a third party (magazine or brand's Instagram) want to use the image you will need permission from the photographer to do be able to give them the image – which may incur an additional fee on top of what you paid for shoot in the first place.
For this reason, we strongly advise keeping personal records of what rights all imagery are covered for, and to who they have subsequently been licensed out to, and for what purpose. As a creator, this is a crucial aspect of your personal ‘housekeeping’ and will stand you in good stead if these kinds of questions arise, potentially years down the line.
Who owns images created for a brand partnership?
Just because a brand conceptualised the broader campaign strategy and approached an influencer to execute it, does not mean they own the content. The influencer owns the creative, whether the product is a blog post, YouTube video, or Instagram Story. Despite it being created as part of a campaign, no ownership rights are automatically transferred, and each aspect of the future of that content should be considered at contracting stage. Which brings us on to…
Contracting – Retaining and Licensing Content
What are the standard content usage terms for influencer projects?
There are generally two options when it comes to agreeing usage terms. The first option is for influencers to retain full ownership of the content that they create for the brand and then license this content to the brand for it to use on agreed media channels for a limited period of time. This period could be for the length of the brand’s campaign, or it could be one or two years and should be agreed in contract. This option allows influencers to have full control over how their content is used.
The alternative option is for influencers to let brands own all the rights in the created content (subject to payment of the agreed fee) so that the brand can use it as and when it pleases. Ultimately however, there is no such thing as standard content usage terms and the usage rights will always depend on the profile of the influencer and the brand’s available budget.
Above all, it’s important to make sure that all sides are on the same page from the outset and that you, as an influencer or brand, have communicated and negotiated the terms to suit the required objectives. More often than not, the first port of call will be to contact the opposing side directly and politely state where you are in disagreement with the action. If one side is out of line with original agreed terms, there’s usually a quick fix to maintain the partnership successfully for future campaigns.
What rights can be negotiated?
Territories, length of time, platform, organic vs paid (amount of spend), online/offline, commercial, crediting, alteration (such as cropping), reconstitution (using alongside other content to create a new marketing asset).
The minutiae of rights can be dissected further, but when signing any contract or agreement it’s valuable to check for some mention of the above. Any and all of these rights can incur an increased fee, relatively proportional to the increased reach resulting in each clause.
But why should brands pay additional fees for image usage in the first place?
By the very nature of an influencer marketing campaign, the influencer in question is contracted to produce content that sits on their own personal channels. Any additional usage is beyond that industry standard benchmark, so using the image anywhere else should be expected to cost more – it’s as simple as that: extra requirements equal an additional fee.
Troubleshooting Content Usage
Am I obliged to always credit my photographer?
Technically yes, you should be crediting the photographer in all content that he/she has created for you unless you have obtained a waiver of the photographer’s so-called ‘moral rights’ i.e. the right for the creator to have their work credited to them and to object to the derogatory treatment of their work.
If you do not wish to credit the photographer in your content, you should ensure that the photographer has agreed in writing to waive his/her rights before you use the images.
If an image taken by my photographer is republished by a brand, is it my fault if the brand uses the content without permission?
No, provided that you have not breached the terms of your licence from the photographer by placing the image on social media (if applicable) and have not agreed elsewhere to police how the image is used by third parties.
In this situation, either you or the photographer will own the copyright in the image and will be able to stop the brand from using it by following the relevant social media platform provider’s takedown procedures.
If a brand uses my content without my consent and I don’t want to associate with that brand, what are my rights?
Users of social media platforms (e.g. Instagram, Facebook and Pinterest) can re-post content which has been created by a third party within that same platform. However, if they are sharing it in a way which falsely suggests you endorse their brand, or which suggests you are affiliated with them, then you may be able to prevent that through the laws of passing off.
If someone has shared your original work (e.g. a photo you took) without your permission, your first point of call is to contact the brand to say that you do not agree to its use of your image/content and politely request they remove the content. While you may be legally entitled to compensation for unauthorised use of your content, it is highly unlikely that you will receive this in practice.
If a brand uses an image of me that I do not like, can I ask them to remove it?
If you are from and live in the US, you may be able to ask the brand to remove the image using your so-called ‘personality rights’ i.e. the right for you to control the commercial use of your name, image and likeness.
In the UK, there is no standalone right of personality by which an individual can protect his or her name, image or likeness. Instead, unauthorised use of your name, image or likeness must be challenged under other existing regimes known as passing off, trademark infringement, data protection, breach of confidence or advertising regulations. However, the law is quite patchy in this area and it’s often more effective to contact the brand directly and ask them to use another image. If the brand wants to continue working with you, they may be willing to make this change.
To avoid this situation, it’s worthwhile asking the brand to agree in writing before the project begins that they will not publish any photos featuring you without your approval. That way, if the brand uses an image you do not like, you have contractual remedies available to you.
What counts as accreditation on social media content?
We see people falling foul of it all the time – a piece of artwork, a poem, a graphic raising awareness of a cause gets picked up and shared over and over again. When the social media wave moves so quickly, the original post and trail back to the creator quickly gets lost – before you know it, someone with lots of followers gets flooded with comments tagging the original artist and calling for accreditation – quickly!
While this isn’t illegal per se, it is poor decorum. When brands are the ones using someone else’s imagery to promote their products or services, it becomes really sticky.
A contract for an influencer project should also cover how a brand should share the imagery they have been given the license to, which can include naming the copyright holder by legal name or social media handle, only using imagery with the original caption that accompanied it.
How about when you commissioned the content? Understandably, creators (whether influencers, photographers, artists) are often disgruntled when their involvement is not mentioned in a text caption on Instagram and have simply been tagged. While there isn't currently any specific supporting guideline from the ASA or legal bodies, however, we would advise that content makes it clear, without the need for further delving (including tapping on an image to see a possible creator) that somebody assisted them with taking the photograph. Practise the same principles as a magazine shoot (listing the photographer, stylist, make-up artist, etc) to completely avoid confusion.
What happens if a brand uses my content without permission?
Most people – influencers included – appreciate a re-gram that’s intended in good spirits. And that can even include a re-gram from a brand. Often, influencers will post about brands (whether clothing, beauty or travel) in order to gain recognition from the account in question – indeed user generated content is one of the most valued commodities on social media. But it is essential to notify, ask in advance and credit, rather than someone finding out retroactively.
Aren’t reposts good for growing following? We often get asked this question and it’s not without basic reasoning. If credited correctly, the influencer will be exposed to hundreds of thousands of new eyes that might not have come across them otherwise. However, it’s not a sufficient trade off (replacing a paid license) as influencers fundamentally deserve to get paid for their work.
Influencers and photographers must know their worth – copyright laws & image usage were made for them to USE and help us make money as professionals. Effectively it’s the same as printed editorial like books or magazines, so unless an image is specifically designated as CC (Creative Commons) or available through a rights-free database like Unsplash, then it is not for use by anyone other than the copyright holder to use particularly for commercial purposes.
If you do find that a brand has posted your image, then we would suggest that you politely get in touch and explain the dilemma. If the content was created as part of a campaign, it’s likely an error and the fact they don’t have the rights has gone unnoticed. But ignorance is not sufficient; fundamentally if they don’t own the content, then they cannot take it. And if you have any issues then feel free to forward on this article!
For the record, the courteous steps for re-gramming/re-posting are as follows:
Enquiry
Consent
Credit
This concludes our round-up of influencer content rights and usage. As One Roof Social have a foot in both the camps of brands and influencers, we feel passionate about sharing safe-guarding processes that are mutually beneficial.
To find out how to price influencer content and usage, check out our Influencer Pricing Chart for Instagram e-book or contact the team at hello@oneroofsocial.com for a bespoke consultation.