Social media has become one of the most powerful tools for brands’ growth and advertisement. In the recent years, businesses have increasingly turned to influence(r) marketing for their promotional campaigns. However, many businesses are not aware of the legal aspects surrounding this practice. What third parties’ content can you use to promote your brand and to what extent?

Social media has become one of the most powerful tools for brands’ growth and advertisement. In the recent years, businesses have increasingly turned to influence(r) marketing for their promotional campaigns. However, many businesses are not aware of the legal aspects surrounding this practice. What third parties’ content can you use to promote your brand and to what extent?

 

There is a common misconception regarding content uploaded on social media. Many believe that once a user voluntarily uploads something on a social media platform, they lose the right to have control over it. This is not the case. There are some legal limits to be considered: the law and the terms & conditions.

 

The law

When talking about influencer marketing, we need to refer to, at least, intellectual property (IP) laws, consumer protection laws and advertisement regulations. In the social media world, copyright is an important IP right to be considered. Unlike other IP rights, copyright arises automatically from the creation of the work, without any need to take further steps such as registering it at a specific office. In relation to social media content, copyright can be recognized for photographs or images, videos, music and text.

 

An interesting decision of the Paris appeal court dated 12 May 2023 shows that there are limits to copyrights on social media. The Court decided that the selfie a fashion model took in an elevator mirror with her dog did not meet the required originality and therefore was not protected by copyrights.

 

Terms and conditions

Do we waive our IP rights when agreeing to social media’s terms and conditions? Yes and no. Generally, by agreeing to social media platforms’ terms and conditions, you grant them a non-exclusive and unlimited license to use your material, however the copyright remains yours. Terms and conditions are mostly necessary for social media platforms to achieve their purpose of sharing on their virtual space the content that you create.

  Agreeing to the terms and conditions stipulates a contract only between you and the platform, not with any third party. Therefore, this allows the platform to share your content, however it does not allow third parties to copy, use, modify, download or re-produce your content. This however can differ depending on the platform. TikTok, for example, extends the right to use, re-produce, modify, download your content to other Platform users (Art. 4.9 of their Terms of Service). So, it is important to carefully read the terms and conditions of each platform you intend to use.

 

When can I share third parties’ content to advertise my brand?

Re-sharing content created by third parties is more than a two-click job. As mentioned, the work uploaded on social media may be protected by copyright law, regardless of whether this is a personal post or a sponsored post. When calling upon an influencer to create content to promote your brand, you do not automatically become entitled to use, modify, download or share such content. It is necessary to obtain explicit permission or a license from the influencer.

When collaborating with content creators, an agreement is the way to go. This should include clauses on copyright ownership of the content and/or license to the usage thereof, including the duration and extent of this use.

While in reality many individuals are pleased, or even better flattered, when brands re-share their content, if no (implicit or explicit, the latter being preferred or required) consent was given, such individuals could legally request takedown and/or a claim for damages. Furthermore, if you have used the content in marketing material or a campaign, you could be requested to destroy such material. The saying “it’s easier to ask for forgiveness than permission” can often result in salty consequences in these circumstances.

 

You got consent to use the content, what now?

Advertising on social media platforms always needs to be done by complying with the provisions on advertising from the Code of Economic Law. According to the Code of Economic Law, advertising must always be recognizable as advertising and consumers must be able to easily and clearly realize that a specific content was made for commercial purposes. It is believed from the general public that clearly flagging some content as commercial will interfere with the potential reach, engagement and interest of the people, therefore with the success of such advertisement. As a result, many companies as well as content creators often do not disclose the commercial purpose or do so in a not so evident way. This can be seen as misleading and can incur unpleasant consequences by the law.

 

To be on the safe side, when a product is clearly displayed in a content and a benefit was received for such content (being this receiving the product for free, a discount, a monetary compensation, receiving the product for temporary use, free services, invitations to events…) this must be considered as advertisement. Even when the brand sends free products without asking for content in return, if such content is created, it must be flagged as an advertisement. While they might be considered acceptable, you should avoid using ambiguous terms or abbreviations to disclose the advertising purpose of a content; instead, for a risk-free outcome, you can include the words “advertising”, “publicity” or “advertisement” and ensure that the brand name is clearly visible.

 

Author’s opinion

 

Advertising through social media platforms and content creators became a powerful tool for brands, however it is important to know the rules:

• Read the terms and conditions of each platform;
• Make sure you have consent to use content;
• Be transparent when content is distributed for commercial purposes.

 

By Elisa Volpi.

Sources:

Chanana S., Pardini, T. (2024), Copyright Law for Influencers and Brands: How Content Creators and Companies Hiring Them Can Navigate Copyright Law for a Successful Partnership, Farella Braun + Martel LLP 2024, ww.jdsupra.com.

Sønstebø, S. (2021), Can you use other people’s INSTAGRAM® photos, Plougmann Vingtoft News, https://www.pv.eu/.

Smith R. (2018), What are Copyright Issues in Social Media, Instrumental Blog, https://www.instrumental.net/

Influencer Legal Hub (2023), https://commission.europa.eu/live-work-travel-eu/consumer-rights-and-complaints/influencer-legal-hub_en.

Cour d'appel de Paris - Pôle 5 - Chambre 2 - 12 mai 2023, 21/16270, S.A.S.U. MAJE v. Mme [S] [N]-[L].