CONTENT USAGE & RIGHTS
Moving on from our piece on sponsored content declaration, there’s also a lot of uncertainty about image rights and usage. With many influencers paying professional photographers to shoot content, it’s essential to know what rights you have over the end product and how this translates to general ownership and usage of the material.
Who owns the rights to images taken by my photographer?
The general rule is that the photographer will own all the rights to the images he or she takes unless you agree otherwise (in writing). You should therefore ask the photographer to assign all image rights over to you by way of a written assignment and waive their moral rights in the images.
Otherwise, you may find that the photographer can restrict how you can use the images. Some photographers may agree to this without question whereas more sophisticated photographers will insist on retaining ownership of the images and will instead want to license the images to you for a specific purpose and period of time. Use of these images will need to be clearly defined. For example, if a third party (magazine or brand's Instagram) want to use photograph you will need permission from the photographer to do be able to give them the image.
Am I obligated to credit my photographer in all the content they shoot?
Technically yes, you should be crediting the photographer in all content that he/she has created for you unless you have obtained a waiver of the photographer’s so-called ‘moral rights’ i.e. the right for the creator to have their work credited to them and to object to the derogatory treatment of their work.
If you do not wish to credit the photographer in your content, you should ensure that the photographer has agreed in writing to waive his/her rights before you use the images.
If a brand uses my content without my consent and I don’t want to associate with that brand, what are my rights?
Users of social media platforms (e.g. Instagram, Facebook and Snapchat) can re-post content which has been created by a third party within that same platform. However, if they are sharing it in a way which falsely suggests you endorse their brand, or which suggests you are affiliated with them, then you may be able to prevent that through the laws of passing off.
If someone has shared your original work (e.g. a photo you took) without your permission, your first point of call is to contact the brand to say that you do not agree to its use of your image/content and politely request they remove the content. While you may be legally entitled to compensation for unauthorised use of your content, it is highly unlikely that you will receive this in practice.
If an image taken by my photographer is republished by a brand, is it my fault if the brand use the content without permission?
No, provided that you have not breached the terms of your licence from the photographer by placing the image on social media (if applicable) and have not agreed elsewhere to police how the image is used by third parties.
In this situation, either you or the photographer will own the copyright in the image and will be able to stop the brand from using it by following the relevant social media platform provider’s takedown procedures.
If a brand uses an image of me that I do not like, can I ask them to remove it?
If you are from and live in the US, you may be able to ask the brand to remove the image using your so-called ‘personality rights’ i.e. the right for you to control the commercial use of your name, image and likeness.
In the UK, there is no standalone right of personality by which an individual can protect his or her name, image or likeness. Instead, unauthorised use of your name, image or likeness must be challenged under other existing regimes known as passing off, trade mark infringement, data protection, breach of confidence or advertising regulations. However, the law is quite patchy in this area and it’s often more effective to contact the brand directly and ask them to use another image. If the brand wants to continue working with you, they may be willing to make this change.
To avoid this situation, it’s worthwhile asking the brand to agree in writing before the project begins that they will not publish any photos featuring you without your approval. That way, if the brand uses an image you do not like, you have contractual remedies available to you.
What are the standard content usage terms for influencer projects?
There are generally two options when it comes to agreeing usage terms. The first option is for influencers to retain full ownership of the content that they create for the brand and then license this content to the brand for it to use on agreed media channels in selected territories for a limited period of time. This period could be for the length of the brand’s campaign, or it could be one or two years and should be agreed in contract. This option allows influencers to have full control over how their content is used.
The alternative option is for influencers to let brands own all the rights in the created content (subject to payment of the agreed fee) so that the brand can use it as and when it pleases. Ultimately however, there is no such thing as standard content usage terms and the usage rights will always depend on the profile of the influencer and the brand’s available budget.
Above all, it’s important to make sure that all sides are on the same page from the outset and that you, as an Influencer or Brand, have communicated and negotiated the terms to suit the required objectives. More often than not, the first port of call will be to contact the opposing side directly and politely state where you are in disagreement with the action. If one side is out of line with original agreed terms, there’s usually a quick fix to maintain the partnership successfully for future campaigns.
What counts as accreditation on social media content?
This is something we see come up time and time again - and something we have received a number of enquiries about since posting this article. Photographers are often disgruntled when they are not mentioned in a text caption on Instagram, and are instead simply tagged. Unfortunately there isn't currently any supporting guideline from the ASA or legal bodies, however, we would advise that an influencer's content makes it clear, without the need for further delving (including tapping on an image to see a possible creator) that somebody assisted them with taking the photogragh.