In recent years, the advent of the social media "influencer" has revolutionized advertising.  Companies often partner with influencers to market their products, hoping to tap into the influencer's devoted audience. Likewise, influencers create certain content to secure brand deals and attract advertisers. However, this relationship can be fraught with legal issues, including in the arena of copyright law. To prevail on a copyright infringement claim, the plaintiff must prove: 1) the plaintiff owns a valid copyright; and 2) the defendant engaged in unauthorized copying of protected elements of the work.

In this article, we list seven recommendations for both influencers and companies to consider in order to protect themselves against copyright issues.

1. Draft and Enter Into Clear Agreements

All parties' rights and obligations should be outlined in a clearly written contract. Both influencers and companies should be independently represented by qualified counsel to ensure that everyone's expectations are met. The contract should specify who owns the posted content and any approval procedures for such content. The contract should also include whether the company secures a license or assignment of rights to use the influencer's content for marketing purposes. And it should explain the process for obtaining the necessary permissions for any copyrighted content from third parties (for example, music or photos used in the influencer's posts). If a legal dispute occurs later, a court will closely analyze the terms in such contracts. For example, in the Bang Energy drink cases, which involved alleged copyright infringement of famous songs by influencers' sponsored posts, the court analyzed the work for hire agreements that Bang Energy had with social media influencers. See, Sony Music Ent. v. Vital Pharms., Inc., 2022 WL 4771858 (S.D. Fla. Sept. 14, 2022), and UMG Recordings, Inc. v. Vital Pharms., Inc., 2022 WL 2670339 (S.D. Fla. July 11, 2022). In those agreements, Bang Energy agreed to pay a certain percentage of profits for influencers to market their products, and in return the influencers' posts were subject to Bang's supervision, editing, and approval. The terms of these contracts were significant to the court's analysis of whether Bang Energy was liable for contributory and vicarious copyright infringement of the music label's songs.