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Re-Sharing User-Generated Content, Legally

Let’s talk about re-sharing user-generated content, legally, on Instagram. By the end of this post, you’ll understand 1) what user-generated content is, and 2) what it means to share user-generated content while complying with copyright law.

There are a few ways that this can come up.

The first is where a brand has tagged you in a photo where maybe they’re talking about you. This could be in influencercontext, or this could be just any user on Instagram tagging a product that they like or use and talking about it. Technically speaking, even though they’re tagging the brand or they’re talking about a product, you do not have consent to share a photo that you don’t own unless you seek permission. This is because of copyright law, of course. Usually the person that creates the content — like a photograph — owns that content. You may be able to seek a license or permission to use that content, but you don’t own that content. Giving someone credit or linking to her account is nice, but, number one, might not be necessary, and number two, it’s not enough to “absolve” you from copyright infringement. 

The second scenario is summed up in this question: what if it’s already on Instagram? If it’s already out there, isn’t it free to use? Answer: NO. Instagram’s own “Community Guidelines” kind of talk about this. The guidelines say: 

Share only photos and videos that you’ve taken or have the right to share.

Instagram Privacy and Safety Center, Community Guidelines

Instagram also goes through a little spiel on intellectual property rights and copyright and says,

The best way to help make sure that the content you post to Instagram doesn’t violate copyright law is to only post content that you’ve created yourself.

Instagram Help Center, Copyright

… and they’re right.

A lot of people go by the adage of “just give them credit and you can use it” but that’s that’s not legally correct. In other words, to put it simply in one sentence, you should be seeking permission for every photo — whether it’s a story or photo in your feed — before re-sharing it.

If you’re concerned whether you’re re-sharing user-generated content, legally, it’s better to ask permission before posting, just to be safe!

What’s that? Free info? Yes, please. Click below to learn four things you can do right now to protect your business online. 

Anatomy of an Influencer Endorsement Contract

If you have a dedicated following in your niche market, you might have dipped your toe in the affiliate pond, creating sponsored content with brands that you adore or just plain believe in. Or, you’ve found the perfect ambassador for your brand. Someone with a decent sized following that is (more importantly) very engaged. You know your sales will take off after affiliating with this influencer.

Sound familiar? Then this post is for you. It dissects some important provisions that a brand owner and influencer are likely to hash out when entering into an Influencer Endorsement Contract. Remember, contracts are you friend! (Or they should be.) A good contract makes sure both parties are on the same page so there is no ambiguity. It eliminates the need to comb back through texts, emails, or DMs to figure out what you agreed upon.

Disclaimer: Of course, this doesn’t cover each and every provision you’ll find in an Influencer Endorsement Contract. It does go through some important provisions that a good Influencer Endorsement Contract should cover. When in doubt, please contact a lawyer.

The Sponsored Content & Platforms.

A good Influencer Endorsement Contract will get very specific on the deliverables. And “deliverables” means whatever the Influencer is providing or “delivering.” What type of content are we talking about — a photo + caption? Photo or video-only media (like Instagram Stories or Snapchat)? A blog post? A blog post and a photo + caption? There shouldn’t be any question as to what’s covered, here.

Frequency.

Is the Influencer expected to post daily? Weekly? Monthly? Or maybe this is a one-off, one-time thing? Either way, a good Influencer Endorsement Contract will spell it out.

Exclusivity in Brand’s Field.

Many times, an Influencer will be expected to say “sorry, no” to brands competitive with the brand that’s hiring them for a specific endorsement campaign, at least for a certain amount of time during and/or after the term of the relationship with this brand. If that’s the case, the Influencer Endorsement contract should say so. It should also specify the exclusivity period that applies after the contract ends. One month? Three? A year? 

IP Ownership.

It’s common for IP ownership to go to the Brand, since the brand is paying the Influencer to post (and, sometimes, create) content in support of the Brand. Still, depending on the reach and “muscle” of the particular Influencer, ownership could go the other way. Either way, remember that copyright ownership usually goes to the creator by default. If Brand and Influencer agree otherwise (or even if they don’t), it behooves them to put that understanding in writing.

Compensation.

Compensation can come in the form of free goods provided to the Influencer, a lump sum payment, a percentage of sales, or some creative combination of these options. A sound Influencer Endorsement Contract will make the form of compensation, and other payment dates and details, clear.

Approvals and Brand Guidelines.

Approvals often come down to who has more bargaining power, although again, because the Brand is paying for an endorsement, a favorable Influencer Endorsement Contract should give some level of approval rights to the Brand. Many times a Brand will make Brand Guidelines part of the agreement. Brand Guidelines consist of text and image guidelines. For example, no swearing, no cigarettes, no religious references, no references to Brand’s competition by name, etc. An alternative to a Brand’s unfettered approval rights is to allow objection/rejection of content solely as it doesn’t comply with the Brand Guidelines. (After all, the Brand is likely familiar with the Influecer’s voice and style, or the Brand wouldn’t have the desire to enter into this agreement in the first place.)

Compliance with Laws.

Remember that FTC crackdown we’ve talked about? (Thanks, Fyre Festival.) The Influencer Endorsement Contract should make clear that whoever is responsible for the copy — whether that’s Influencer or the Brand — is responsible for complying with the FTC’s guidelines on disclosing that promotional connection between Brand and Influencer. 

So what’s a guy or gal to do when it comes time to enter into an influencer-brand sponsorship arrangement? You have options. For a bespoke contract that speaks to your each and every need, you can (and should) contact a lawyer. But for the DIY-ers out there, Spear IP is officially releasing an Influencer Endorsement Contract Template as part of its contract template arsenal! Click below to check it out. And, for being a devoted follower of the Spear IP blog, use code BLOG for a $10 discount!

What’s next? Click here to download your [free] Essential Legal Checklist from Spear IP.

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Sponsored Content and Posting the Right Way

sponsored content and posting the right way

Ever watch an old television show and notice the not-so-subtle product placement that was so commonplace back then? “Gee, Mary, these dishes sure are clean. You must be using Palmolive soap again!” Fast forward 65 years and sponsored content is still alive, but the medium and pitchmen have changed. Influencers and celebrities use Instagram and other platforms to make big money. But times are a-changin’ again, thanks to crackdowns — er, gentle reminders — by the FTC. Continue reading “Sponsored Content and Posting the Right Way”

Contest Rules, Social Media, and the Law

Contest Rules Social Media and the Law

You’ve seen them so often that you don’t even pay attention to the rules. “Tag a friend in the comments to enter!” “Share this photo to enter!” But, like all contests and sweepstakes, contests that take place on social media are often governed by very specific rules. How many social media contests or promotions have you run or participated in that do not follow the rules?

Continue reading “Contest Rules, Social Media, and the Law”