Influencer-Made Ad Content Demands a Copyright Balancing Act

The world of advertising campaign norms is changing as more social media influencers self-film advertisements on their phones, and are engaged by advertisers specifically because they’re the expert of their own art direction and know what their followers are looking for—and advertisers want to reach those followers.

When an advertiser or media studio creates a traditional custom video or static advertisement, that entity traditionally owns the advertisement pursuant to the Copyright Act.

This creates a natural rift because of how influencer content is created. The influencer is creating the entirety of the advertisement and, as such, believes they should own the copyright in it. But advertisers and media studios seek to own the content that they specifically commissioned depicting their products and services.

Advertisers and media companies need to strike a balance between owning and controlling this content without losing the influencer’s authenticity and connection to the influencer’s audience that they’re seeking to leverage.

Traditionally, when someone is brought in to create commercial content for an advertising campaign, that content is made on a work-for-hire basis. The rationale is that the content is created for a specific advertising purpose at the advertiser’s direction and, but for the advertiser’s commission and payment to the creator, that content wouldn’t exist and would have no other purpose.

This is different from editorial or non-commercial content, which could have a life and purpose beyond an advertising campaign (such as an editorial article that could be published as part of a collection or adapted into a motion picture). As such, it’s not legally or commercially practicable for an influencer to own content created for an advertiser.

However, due to the rise of influencers self-filming the entirety of an advertisement, they understandably feel more emboldened to ask for copyright ownership during negotiations. There are solutions for this that in-house counsel can consider while negotiating with influencers creating advertising content.

Before getting to a long-form agreement, company representatives should explain during influencer outreach that all content created by the influencer for the ad campaign must be made on a work-for-hire basis. That way, there will be no surprises when you get to the formal agreement stage of the negotiation.

If an influencer pushes back, ask why they’re insisting on ownership—usually the answer to this should allow for a solution that works for the influencer and the advertising campaign’s needs. It also shows that in-house counsel wants to work toward a practical solution with the influencer and understands the value of their work instead of simply telling them “no.”

An influencer may have objections to ownership by the advertiser or the media studio based on the idea that they would be able to use their created work in any manner or any medium in perpetuity. A solution to this reaction is to be specific with the influencer about how the content is intended to be used, how long it will be used for by the advertiser or studio, and on what platforms it will appear.

For example, the agreement could state that the content will be used only on the advertiser’s owned and operated properties and social media accounts and will be actively promoted only during the campaign. (In order to not negate the need for perpetuity, the advertiser or studio could have the content stay up indefinitely, but agree to not actively promote the content after the promotion or campaign period, since it also wouldn’t be likely to chase down every instance it appears after that period ends.) With this compromise, the advertiser or media studio retains ownership (and thus has control) of the content, but the influencer feels more comfortable that it will be used only in specific parameters.

An influencer also may ask to control content being posted on their social media platforms in a way that allows them to take the content down. A simple solution to this is to add in the agreement that the influencer can remove the content on a certain date or after a certain amount of time, if that’s consistent with the advertising campaign needs.

If negotiations are at a standstill, and the media studio or advertiser must agree on influencer ownership over the content, the license should be worded specifically and narrowly. The influencer should grant the advertiser or media studio a perpetual, exclusive license and carve out that the influencer may not use the content for any purpose other than as prescribed in the agreement. This gives the influencer ownership of their content while protecting the use of content depicting an advertiser or media studio’s goods and services.

If the influencer isn’t creating the entirety of the ad, but rather self-shooting raw footage that the media studio or advertiser will edit into the final asset, there should be no license provision in the influencer agreement. That footage should be made on a work-for-hire basis under the traditional rationale that the advertiser or media studio is creating the final piece of work, and the influencer’s footage is a contribution.

It makes sense philosophically that influencers are starting to ask for copyright ownership over the content they create. However, in the interest of controlling content depicting their goods and services, in-house counsel for advertisers and media studios shouldn’t shy away from using fair negotiation tactics and commercial content creation principles to insist on sensible ownership.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Jillian Robbins is senior counsel at Vox Media.

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