- Abstract-
In the age of digital influence, copyright issues in influencer marketing have become a pressing concern. This article examines the legal complexities surrounding copyright attribution and ownership in collaborative digital content creation. By analysing case laws, contractual obligations, and copyright enforcement mechanisms, it highlights the challenges faced by influencers and brands. The study underscores the need for clear agreements, proper licensing, and adherence to copyright laws to foster ethical and legally sound collaborations. Recommendations for both influencers and brands aim to reduce disputes, safeguard intellectual property, and build trust in the influencer marketing ecosystem.
- Key Words-
Influencer Marketing, Copyright Law, Digital Content Ownership, Attribution, Licensing.
- Introduction-
In today’s digital landscape, influencer marketing has emerged as a dominant advertising strategy, leveraging the reach and authenticity of social media personalities to promote brands. However, this burgeoning field brings with it legal complexities, particularly surrounding copyright infringement. Central to these issues are questions of attribution and ownership in collaborative content creation. Cases such as Castrol India Ltd. vs. Gaurav Taneja (Flying Beast) illustrate the challenges influencers and brands face in navigating these legal waters. This article explores the nuances of copyright law in influencer marketing, emphasizing the importance of clear agreements and adherence to legal principles.
- Research Methodology-
This article employs a qualitative analysis of existing legal frameworks, case laws, and industry practices. It draws insights from secondary data sources such as legal journals, court rulings, and regulatory guidelines. A comparative approach is used to analyse key disputes and their resolutions, providing a comprehensive understanding of copyright issues in influencer marketing. Recommendations are developed based on observed gaps in legal practice and stakeholder obligations, ensuring relevance to contemporary challenges in digital content creation.
- Review of Literature-
Studies on copyright laws in the digital age emphasize the need for clear ownership frameworks in collaborative content creation. Landmark cases like Marico Limited v. Abhijeet Bhansali and Sony Music vs TikTok Creators highlight the complexities of enforcement, balancing creative freedom and intellectual property rights. Research underscores the role of detailed contracts in preventing disputes and stresses the importance of attribution for transparency and trust in collaborative efforts.
- Method-
- Understanding Copyright Law in the Digital Age-
Copyright law grants creators’ exclusive rights to use, distribute, and monetize their original works. In the digital era, these laws extend to videos, photographs, and written content, all of which form the core of influencer marketing campaigns. Misconceptions about copyright abound, especially among influencers who often assume that creating content grants them automatic ownership. In reality, ownership depends on contractual agreements and legal principles like “work-for-hire.” For instance, if a brand commissions content, it may retain ownership unless otherwise specified.
The copyright is usually owned by the content creator. However, a formal agreement can be used to sell or transfer ownership. Influencers may be asked to transfer their copyright by brands in influencer marketing in return for cash or other advantages. Unless the agreement specifies otherwise, this transfer gives the brand complete ownership over the content, including how it is used and monetized.
To make sure they maintain the rights they require, influencers should carefully review these agreements. An influencer might, for instance, bargain to restrict the transfer to particular platforms or campaigns or to maintain personal usage rights. Influencers run the danger of losing control over their creative output in the absence of such protections, which could affect their brand identity and future prospects.
- Licencing Content from Influencers– Licensing agreements are essential to influencer marketing and provide an alternative to direct copyright transfers. These contracts help both parties by outlining precisely how content may be utilized, distributed, and made money.
Licensing agreements give marketers the authorization they require to use the content while safeguarding influencers’ intellectual property rights. Without a licensing agreement, influencers might not be able to govern their content, and brands might not have the legal right to use it as intended, which could result in disagreements or legal issues.
- Types of Licenses:
Exclusive License: Prevents the influencer from sharing the content with other brands and gives the brand the sole right to utilize it.
A non-exclusive license gives the current brand permission to use the influencer’s work while allowing them to share it with other brands.
A commercial license gives the brand permission to use the material for advertising and other commercial endeavours.
A non-commercial license limits the brand’s use to internal training and educational initiatives, among other non-commercial applications.
- Essential Elements of Licensing:
| Essential Elements | Description |
| Scope | Detailed information on the kind, format, and territory of the content being licensed. |
| Duration | The length of time the license is in effect. |
| Compensation | Terms of payment, such as quantity, frequency, and mode. |
| Usage Rights | Detailed guidelines for the platforms, frequency, and modifications of the content’s use. |
| Termination | The circumstances, such as non-payment or term violations, that allow the agreement to be terminated. |
- Influencer Contracts and Rights to Intellectual Property–
In influencer marketing, contracts are essential because they offer a defined structure for partnerships and safeguard the interests of companies and influencers alike. A written contract specifies each party’s obligations and expectations. It guarantees clarity regarding:
The scope of work outlines the type of content to be produced, the location for posting, and the frequency of posting.
Compensation: Describes the terms and conditions of payment.
Expectations: Specifies deadlines, deliverables, and standards of excellence.
Influencers run the danger of losing control over their work without a contract, and brands could run into legal issues because of inadequate licenses.
Crucial Provisions in Contracts-
The scope of work specifies the platforms, publishing frequency, and particular content. Compensation, Describes the time and structure of payments. Exclusivity, indicates if the influencer is able to collaborate with rival companies. Termination, Outlines the circumstances in which the contract may be terminated.
Contractual Intellectual Property Rights should be specifically covered in contracts, including:
Ownership: Identifying the post-creation owner of the content.
Usage: Outlining the permissible uses and locations for the content.
Duration: Determining how long the content may be used.
Both parties can prevent misunderstandings and guarantee a fruitful and legally sound partnership by attending to these factors.
Copyright laws are the cornerstone for safeguarding creative works in the digital age. Influencers and brands need to carefully consider ownership, transfers, and licensing consequences while navigating these laws. In the fast-paced world of influencer marketing, both parties may protect their rights, build trust, and guarantee profitable collaborations by utilizing detailed contracts and license agreements.
- Influencer Marketing: A Breeding Ground for Copyright Disputes-
Influencer marketing’s tremendous rise has created new copyright issues, which frequently result in disagreements because of:
• Ambiguity in Agreements: Inconsistent language about content ownership and usage rights may cause miscommunications and disputes between businesses and influencers.
• Unauthorized Use: When brands or influencers utilize content outside of the agreed parameters, they are violating intellectual property rights.
• Failure to Attribute: Failing to give contributors or stakeholders the proper credit, which could result in legal problems and damage to one’s reputation.
The case of Marico Limited v. Abhijeet Bhansali is a noteworthy illustration of these difficulties.
In this case, YouTuber Abhijeet Bhansali questioned the quality of Marico’s “Parachute” coconut oil in a negative review. Alleging trademark disparagement, Marico filed a lawsuit and requested an injunction to have the video taken down. The Bombay High Court issued an interim order, highlighting influencers’ obligation to make sure their posts don’t damage a brand’s reputation without supporting evidence. This example emphasizes how important it is for influencers and brands to have mutual understanding and use clear language when working together. It emphasizes the significance of-
• Comprehensive Contracts: To avoid disputes, clearly define content ownership, usage rights, and attribution.
• Due Diligence: Making sure that all content claims are true and supported in order to prevent legal issues.
• Open Communication: To match expectations and duties, influencers and companies should maintain open and honest communication. By taking care of these factors, both sides may more skilfully negotiate the challenges of influencer marketing, lowering the possibility of copyright issues and promoting fruitful partnerships.
- Attribution in Collaborative Digital Content-
Attribution is a cornerstone of ethical and legal content creation in the digital era. It ensures that contributors receive proper recognition for their work, which is vital for maintaining transparency and trust in brand campaigns. In the context of collaborative digital content, this becomes especially critical, as multiple creators or brands may contribute to the final product. Legal frameworks like the Berne Convention for the Protection of Literary and Artistic Works underscore the moral right of attribution, emphasizing that creators have the right to be acknowledged for their work, which fosters fairness in content creation.
Despite these legal safeguards, conflicts frequently arise when attribution is omitted, either intentionally or accidentally. For example, influencers may fail to credit a brand or co-creator in a sponsored post, resulting in not only reputational damage but also potential legal repercussions for non-compliance with agreed terms. Cases have shown that the omission of proper attribution can lead to disputes between influencers, brands, and even other collaborators, often escalating to legal action or contract termination.
Best practices in this regard include explicitly defining attribution responsibilities in contracts, ensuring that all parties are clear on their obligations regarding the acknowledgment of contributions. Additionally, adherence to industry standards and platforms’ guidelines, such as those set by the Federal Trade Commission (FTC) in the U.S. or Advertising Standards Council of India (ASCI), can help mitigate the risks of inadvertent omissions. By ensuring clear terms on how attribution should be handled, both legal and ethical concerns can be addressed in collaborative digital content creation.
- Ownership of Collaborative Content: Who Owns What?
In influencer marketing, determining content ownership is crucial to prevent disputes and ensure legal clarity. Ownership often depends on whether the content is classified as “work-for-hire” or independently created by the influencer. Key considerations include:
Brands may claim rights to raw footage, while influencers might assert ownership over edited versions. This distinction can lead to conflicts if not clearly defined in agreements.
Clearly outlining usage rights, including the scope, purpose, and duration, is essential. Ambiguities in licensing terms can result in unauthorized use or restrictions beyond the intended scope.
A notable example is the dispute between Castrol India and YouTuber Gaurav Taneja, known as ‘Flying Beast’. In April 2024, Castrol launched the ‘Castronomy’ campaign, sponsoring influencers to create promotional content. Taneja participated but later uploaded videos without crediting Castrol or promoting the campaign. Castrol claimed ownership of the content, leading to a legal battle. The Bombay High Court ruled in Favor of Castrol, ordering Taneja to remove the videos, highlighting the importance of clearly defined ownership terms to avoid litigation.
- Key Legal Challenges in Copyright Enforcement
- Influencer campaigns often have a global reach, involving multiple jurisdictions with varying copyright laws. This diversity complicates enforcement, as legal protections and remedies differ across countries. For instance, what constitutes fair use in one nation may be considered infringement in another, making it difficult to navigate and enforce rights uniformly.
- The viral nature of digital content means that once material is shared, it can spread uncontrollably across platforms and geographies. This rapid dissemination makes enforcement reactive rather than preventive, as unauthorized uses proliferate before rights holders can respond. The speed and scale of content sharing challenge traditional enforcement mechanisms, often rendering them less effective.
- Influencers may invoke fair use defences for activities like critiques, parodies, or commentary, complicating enforcement efforts. Determining fair use involves a nuanced analysis of factors such as purpose, nature, amount used, and market effect, which can be subjective and lead to unpredictable outcomes in legal proceedings. This complexity makes it challenging to assess and enforce rights consistently.
Platforms like YouTube employ Content ID systems to identify and manage copyrighted material. While these technologies assist in enforcement, they have certain limitation:
- Automated systems may flag content that qualifies as fair use, such as parodies or critiques, leading to unjustified takedowns and stifling creative expression. For example, Content ID does not inherently recognize or account for fair use, requiring users to dispute claims manually, which can be cumbersome and lead to delays.
- Not all creators have equal access to these enforcement tools. Independent artists and smaller creators may find it challenging to protect their work due to limited access to Content ID systems, potentially allowing unauthorized uses to go unchecked.
- Content ID systems may not effectively distinguish between copyrighted material and public domain works, leading to incorrect claims and enforcement actions. This issue has been observed with YouTube’s Content ID system, which has faced scrutiny for its handling of public domain content.
- Case laws-
Marico Limited vs. Abhijeet Bhansali
In 2019, Marico Limited, the manufacturer of Parachute Coconut Oil, filed a suit against YouTuber Abhijeet Bhansali. Bhansali had posted a video reviewing Parachute Coconut Oil, questioned its purity and made negative claims about the product. Marico alleged that the video was defamatory and amounted to trademark infringement. The Bombay High Court observed that while influencers have the right to free speech, it must be balanced against the rights of trademark owners, especially when statements can impact consumer perception.
Sony Music vs TikTok Creators
Sony Music Entertainment has been actively enforcing its copyrights against unauthorized use of its music on platforms like TikTok. In one notable case, Sony sued a popular TikTok creator for using a copyrighted sample without permission, resulting in the creator being ordered to pay over $800,000 in damages. This case underscores the challenges of copyright enforcement on rapidly evolving platforms and the importance of obtaining proper licenses for music use
- Suggestions & Recommendations-
Recommendations for Influencers-
- Understand Copyright Laws: Familiarize yourself with copyright regulations pertinent to your content creation. This includes recognizing what constitutes fair use and the implications of using copyrighted material without permission. Seeking legal counsel can provide personalized guidance, ensuring compliance and protecting your creative endeavours.
- Ensure Transparency and Adherence to Contractual Terms: When entering collaborations, meticulously review and adhere to all contractual obligations. Transparency in your dealings fosters trust and minimizes the risk of disputes. Clearly defined agreements regarding content ownership, usage rights, and attribution are crucial for harmonious partnerships.
- Avoid Unauthorized Use of Brand Assets or Intellectual Property: Utilizing brand logos, music, or other intellectual properties without explicit permission can lead to infringement issues. Always obtain the necessary licenses or approvals before incorporating such elements into your content to uphold legal and ethical standards.
Recommendations for Brands-
- Develop comprehensive agreements that delineate the scope of work, content ownership, and attribution rights. Clearly specifying these terms prevents misunderstandings and protects the brand’s interests.
- Regularly review the content produced by influencers to ensure it aligns with your brand guidelines and complies with agreed-upon terms. This proactive approach helps maintain brand integrity and promptly addresses any deviations.
- In instances of non-compliance or infringement, respond swiftly to mitigate potential damage. However, consider the public relations impact of legal actions and strive for resolutions that uphold your brand’s reputation while enforcing your rights.
- Conclusion-
The dynamic world of influencer marketing brings immense opportunities for brands and influencers but also introduces complex copyright challenges. Issues such as ambiguous ownership, inadequate attribution, and unauthorized use highlight the necessity for clear legal frameworks and well-drafted contracts. By addressing these issues proactively through licensing agreements, comprehensive contracts, and adherence to copyright principles both brands and influencers can ensure compliance and mitigate disputes. Moving forward, ethical practices and legal awareness will be key in shaping a sustainable and collaborative influencer marketing ecosystem.
Name- Aastha Meshram
University- Hidayatullah National Law University, BALLB, 4th year.