The Legal Sins of Influencers

So you’re an influencer (or wannabe). That’s pretty great. It probably means you have a knack for understanding what people (at least your group) enjoy, you know how to match the audience, make adjustments, think creatively, perform, and, yes, work (not everyone is an overnight sensation). Assuming you have a robust following, you may even have turned all of that attention into a significant business. The business side of the influencer coin, however, means you have to start thinking strategically about the business (or hire a team to do that for you). In that case, there are (among others) three important legal sins to avoid.

  1. Own and Control Your Intellectual Property

Your content, image, voice, likeness, logos, name, and more are all intellectual property. Although each platform is different and you have to look at their user agreements individually, here’s an excerpt from the Instagram Terms of Service (as of April 30, 2020) on intellectual property (which is similar to other platforms):

[Y]ou hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings)

In short, you own your content and intellectual property, but Insta can use it for free. Understanding this, and controlling any unauthorized distribution of your content, however, can be a powerful asset. Literally. Intellectual property is an asset that can be purchased, licensed, divided, controlled, manipulated, lost, and betrayed (OK maybe not betrayed).

Given that intellectual property is usually an influencer’s most valuable asset, it requires legal attention and protection.

And, don’t forget your digital assets: handles, usernames, passwords, accounts, pictures, etc. Each is subject to the individual terms of service for each platform. Each needs to be under proper legal controls so you can protect, transfer where appropriate, and manage them.

All of this complex web of rules and laws surrounding the assets of an influencer requires careful thought, attention, and planning from a legal perspective. It might not be glamorous stuff, but the legal foundation is where your influencer empire is being built. So you want it to be a solid one.

2. Understand Your Ad Contracts

In related news to the intellectual property convo above, don’t sign ad contracts you don’t understand! Also, contracts are negotiable–always. Even a take-it-or-leave-it contract is negotiable: (1) you can take it, or (2) you can leave it. Since your intellectual property (and time, talent, tenacity, crushingitness, etc. etc.) is usually your most valuable asset as an influencer, you must ensure you can control it and that you are not giving it away to companies without either (A) adequate protection to you (like how do you get out of the contract, and can they continue to use and re-purpose your content even after the contract ends), or (B) adequate compensation. As to (B), let’s be honest, there is probably a price at which you’d be willing to part with a lot of things, including your influencer stuff. That’s business.

It might be difficult, especially early on, to say no to someone willing to throw money your way. But, an early contract that limits your ability to move on to bigger and better things may limit your ability to grow your brand, it might alienate your core followers, and it might take creative control out of your hands. Obviously those are usually bad things (except in the (B) discussion above scenario). So, get legal help to read, negotiate, and understand those contracts before you agree to them.

3. Have an Estate Plan

I’m not joking. This. Is. Real. You will die. And, you will likely become incapacitated (think coma), at some point in your life. You might be an influencer who is a minor (under 18 years old). The only way to ensure that (i) the person you want to make decisions for you does so, (ii) your property will pass to the people you choose at your death, and (iii) your financial affairs do not become the purview of the public, is to do estate planning–now. Don’t wait to get old. If you are a minor, your parents can set up structures for you that protect your property and manage your influencer business.

You also might decide to get married, or live with the love(s) of your life. Guess what, those are financial decisions, and proper estate planning beforehand can protect you from your heart’s sometimes errant adventures.

Also, the digital assets of an influencer can create a patchwork of estate planning issues. Every platform has a different set of rules about how a user can leave an account at their death, who may have access to the account, how an account may be transferred, and so on. Without planning, on an asset-by-asset basis, it’s almost inevitable you will step on a social media (that means massive corporation) landmine that could devalue your influencer empire.

So, do the planning upfront, then update along the way.

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