The Oxford English dictionary defines a celebrity as “the state of being well known, widely discussed, or publicly esteemed.” This broad and general definition can be attributed to any person who obtains publicity and a following, whether it be through sports, acting, modeling, music, etc… The concept of celebrities in our society has existed for centuries, dating back to Plato’s Symposium identifying Athenian celebrities such as the politician Alcibiades. When you think of a celebrity today, you may think of anyone ranging from Ryan Reynolds to Serena Williams.
The distinction here between celebrities and influencers lays heavily on building the authentic relationship with their audience. The Oxford English Dictionary broadly defines an influencer as a person “who influences”. Individuals are using platforms like TikTok or Instagram to post videos about their daily lives, share the new fashion trends of the season, and more. They build a career from making this content; collecting a following of social media users who watch, like, comment, repost, and most importantly, purchase what is being endorsed. It varies on the size of their followings, but influencers are an individual in a position of authority with fame and knowledge that obtains an authentic relationship with their audience.
Today however, the progression of social media has resulted in influencing becoming a sought after occupation. Brands are now not limited to traditional endorsements like commercials and magazines. With the rapid and accelerating integration of social media into our society, brands can now utilize cost-effective marketing strategies such as influencer endorsements. According to the Digital Marketing Institute, the influencer marketing industry is expected to reach approximately $32 billion by the end of 2025.
By using influencers to endorse their products, brands are reaching to highly engaged audiences through the influencers’ authority and authenticity. Influencer endorsements deals are “mutually beneficial collaborations” where brands partner with social media influencers to market and endorse their products. Given that influencers build their following and make their content based around this idea of authenticity, these influencer endorsement deals build greater credibility with the audience. By using influencers, brands are also using their followings, expanding outside of being limited to just individuals who are familiar with the brand. Two hundred million Instagram users visit a business account per day, and 80% of Instagram users are researching a company’s product or service on the popular social media platform. Brands utilize not only social media, but influencers who speak on their behalf for marketing purposes.
Essentially influencers become third-party contractors with such brands. They enter into contracts with brands that outline the terms of their employment, which is typically just being hired to post. This might seem like a simple enough career – post, promote, and get paid. However, behind the appealing concept of getting paid to post are underlying legal implications associated with content ownership and the Federal Trade Commission (FTC) guidelines.
Title 17 of the Copyright Law of the United States establishes that a work is created when it is fixed in a copy for the first time and when it is prepared over a period of time, any portion of it fixed at any time constitutes the work. This is important considering many endorsements deals content are not made in a single take. By “fixed”, Title 17 mans the work is in a tangible medium of expression in a copy or is able to be perceived, reproduced, or communicated. Title 17 also establishes that a work-made-for-hire is any work made by an employee within the scope of their employment, or a work specifically ordered for use as a contribution to a collective work.
If an influencer-brand contract fails to define ownership, content disputes may arise. However, under U.S. Copyright Law, the default rule applies, meaning the author who made the content owns the copyright from the moment it is fixed, in this case, that being the influencer. A brand can own influencer content through a written assignment signed by the creator, or a valid work-made-for-hire agreement under 17 U.S.C. §101. Content ownership is not the only legal area that influencers need to worry about. The FTC also has endorsement guidelines that influencers need to follow, such as disclosing that you are being sponsored and disclosing the connection between the endorser and marketer. Although the guides are not regulations, many lawsuits can and have been brought against the influencer, and brand, for unfair and deceptive marketing under FTC Act Section 5a, 15 U.S. Code §45. The FTC Act and Endorsement Guides essentially prohibits influencers and brands from using deceptive marketing tactics by not disclosing they are in an agreed sponsorship, and therefore upholding the authenticity of influencing.
Content ownership and FTC endorsements are only two implications that arise with influencer marketing. As influencing now rises into a new era of being a career, many influencers lack the power or experience to understand all implications associated with influencer endorsements. The good news is influencers’ deals are now covered under a SAG-AFTRA contract. SAG-AFTRA is the Screen Actors Guild and the American Federation of Television and Radio Artists unions that represents approximately 160,000 actors, announcers, broadcast journalists, and a wide variety of other media professionals, now including influencers. SAG-AFTRA now has an influencer agreement that covers influencers with a union contract when hired by a brand to produce, perform, and distribute sponsored content on social media. How does this work? The influencers first bargain their rates with the brand, and once a contract is finalized, they use their business entity to sign up with SAG-AFTRA as the direct signatory for the project, ensuring a covered brand deal. A project qualifies if it is influencer-generated sponsored content made for distribution on a social media platform, including video or voiceover performance, with sole responsibility by the influencer for the production and distribution of the content, you are enlisted as a business entity, there is a contract with the advertiser, and you own the final content.
The influencer agreement under SAG-AFTRA is just one step in the right direction of ensuring influencers are properly represented and protected. The progression of social media is inevitable, and with that comes more posts and more influencers. It is a new concept of a career that is going to continue to develop rapidly as more social media platforms emerge, and as more brands shift away from traditional ads and into influencer marketing. With such, it is important to understand the implications behind having a career as an influencer and avoiding liability as an influencer.
Francesca Rocha