Social media influencers or creators are the persons who are popular, powerful, and relevant enough to influence others within their online social sphere – generate ad revenue, product endorsement opportunities, and other revenue streams using social media platforms such as Instagram, Facebook, YouTube, Twitter, TikTok, Snapchat, Pinterest, amongst many others. Social media influencing is one of the most impactful and effective ways of promotion and advertising. However, as social media platforms become more interactive and freely accessible, influencers, YouTubers, and creators become prone to certain legal risks involving Intellectual Property Rights (IPRs).
Why do Influencers Need to Understand Intellectual Property?
With the ease of access and popularity of these social media platforms, copying of the content and unauthorized use of trademarks/brand names have become rampant. The IPRs relevant to social media influencers are of various kinds – trademarks, copyrights, domain names, brand names, etc. When we talk about IP considerations for social media influencers, there are two vital aspects to consider, which are as follows:
Ensuring Compliance to IP Laws
1. Copyrighted Content
Copyright is a type of IP that protects the original works of authorship, such as photographs, videos, written text, art, sound recordings, cinematograph films, and other original creations. It gives the copyright owners the right to distribute, make copies of, display, or perform their original works.
Social media influencers need to ensure that they have proper permission (or otherwise qualify for a copyright exemption, such as ‘fair use’) before using the creative works of others in videos, images, or the text of social media posts. In most cases, the online use of creative works is not free of copyright, and the influencers need to know if they need a license and, if required, take the necessary steps to contact the copyright holder before sharing their material. Fair use is only available for limited exceptions, such as disseminating educational information, criticism, etc., which is non-commercial. The boundary between commercial and non-commercial, in the case of influencers, is tricky to prove as some may be able to prove that their content is for genuine criticism or review, whereas, in other cases, there may be a promotion of another product or brand along with the criticism of the copyright owner’s brand, which then becomes a commercial activity.
Several social media platforms have come up with their tools to check the infringement of IP rights; for instance – YouTube has implemented a ‘Content ID’ system to assist the copyright owners in the identification, management, and protection of their content. Copyright owners, usually limited to the ones with large catalogs of content, can register themselves on YouTube. Whenever content is uploaded to YouTube, the Content ID system scans the new content and checks for matches of copyrighted content already present in the Content ID database.
Trademarks are a form of IP used to identify, distinguish, and indicate the source of the goods and services of one seller from those of others. Primarily, influencers should obtain the written permission of any brand whose name, trademark, logo, or products are featured in a social media post, blog, video, or photograph. Posting content that contains another person’s trademark, brand name, or logo may violate their IP rights. If an influencer makes any direct references to the products or services of a brand, it is referred to as branded content, and the influencer must obtain special permission to use that brand’s name in his or her content. Trademark laws protect the trademark owners from two types of infringement, namely the likelihood of confusion and dilution. The influencers should avoid using trademarks in a manner that is likely to confuse the customers about the source of goods or services or ‘dilute’ a company’s brand.
In the recent decision of Marico Limited vs. Abhijeet Bhansali, the Bombay High Court deliberated upon the duties and obligations of social media influencers. Marico Limited, which owns the popular brand ‘Parachute’ in the category of coconut oil, had filed a suit against Abhijeet, a video blogger who runs a YouTube channel called “Bearded Chokra.” The blogger had uploaded a video titled, “Is Parachute Coconut Oil 100% Pure?” by criticizing Marico’s product. In the video, he made statements such as “IT’S NOT AS GOOD AS YOU THINK!! I’LL PROVE IT!!!!” and that “It smells similar to a dried or rotten coconut.” Marico argued that the video showed false information and deceived the viewers into thinking that the tests conducted (as shown below) substantiated the blogger’s claim that the Marico’s Parachute oil was of inferior quality. Marico also stated that Abhijeet sought to endorse two other rival products by providing links for buying those products from online stores and that his acts fell under the category of ‘commercial activities’ and not a general review of the product by an ordinary consumer. The Court held that “such individuals only knew too well that they wielded significant influence over their audience, and that their statements have a magnified and profound impact. Followers place a certain degree of trust in social media influencers, and accept their statements as facts without much scrutiny.” The Court also stressed upon the fact that a social media influencer cannot make statements with the same freedom available to an ordinary person. It was further observed that the statements were made with recklessness and without caring whether or not they were true or false. The test conducted by the blogger in his video and the articles relied upon did not prove that the statements made were true.
The Court held that “The Defendant cannot, under the garb of educating or bringing the true facts to the public, provide misleading information to disparage the Plaintiff’s product. Any campaign to educate the members of the public by placing before them the true and correct facts may be welcomed. However, such an excuse should not be used to put out misleading information, which disparages, discredits, or belittles someone else’s product or influences the consumers not to buy the said product. Additionally, the unauthorized use of the Plaintiff’s registered trademarks by the Defendant in a manner, which is detrimental to its distinctive character or reputation, cannot be in accordance with the honest practices in industrial or commercial matters.”
3. Domain Names
Domain names are user-friendly and easy to remember addresses that users on the internet use to locate any website. A domain name, quite simply, can be referred to as the ‘online identity’ of one’s business. Each website has a domain name serving as an address, which is used to access the website. Domain names are usually the business names followed by .com, .org, .gov, .net, .in, etc.
Often, domain names are also registered as trademarks if they fulfill all the conditions required for registering a trademark. Once registered, the registered proprietor of a domain name will have all the legitimate rights and authorities, which are commonly availed by the owners of registered trademarks. Thus, social media influencers need to choose a domain name after conducting appropriate background checks and ensuring that their selected name is not already registered or infringes upon the IPRs of others.
How can Influencers Protect their IP?
It is imperative for social media influencers, creators, and YouTubers as well to protect their unique content, which is freely accessible to millions of people on the internet. Influencers can not only register but also enforce their IP. Online aliases, logos, slogans, marks, series names, and even hashtags may be protectable as trademarks. Original videos, photographs, written text, artwork, sound recordings, films, and other creative works may be protectable under copyright. Furthermore, third-party use of an influencer’s name, image, or likeness can be protected as a right of publicity.
The best practice for influencers is to register their content for copyright as soon as it is created along with their channel’s name or their name for trademark as soon as they begin using them on social media in connection with their content.
Several social media influencers have taken steps to trademark their name. For instance, Lele Pons, a famous YouTuber, has a trademark application under Class 41 (entertainment services) at the USPTO (the United States Patent and Trademark Office). Similarly, Kylie Jenner has trademark registration under Class 35 for “Advertising services, namely promoting the brands, goods, and services of others; endorsement services, namely promoting the goods and services of others.”
In the case of copyright, the law in some countries mandates copyright registration before any monetary damages can be collected for the infringement of copyright, and therefore, damages can only be collected from the date of registration (which can take a while). By the time registration occurs, the major financial harm to the infringed work, and its owner, has likely been done. Almost every other piece of content generates its most revenue during its initial availability. Therefore, it is highly advisable to have copyright registrations in place for the unique content that an influencer publishes.
The rules around the use of IP have changed drastically since social media has given all of us the power to share content and be publishers ourselves. The issue of IP on social media is complex but can be handled efficiently by taking the right steps towards protection as well as compliance. For protecting their IP, influencers should: