A guide for influencers, Part 1: Protecting your own intellectual property

Have you ever posted a video of yourself performing a little dance on TikTok? Or uploaded photos of your latest vacation on a sun-bathed island on Instagram? There is a good chance that you did, since more than 5 billion persons are currently social media users, which represents roughly 64% of the world population. If you post on social media regularly and receive payments for doing so by commercial partners, congratulations: you may call yourself an influencer! No matter what the haters say about it, your activity on social media is an actual business. The contents you create are valuable and therefore deserve protection. In this article, you will learn a few basics on how to protect your own intellectual property.

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1. Acquire relevant intellectual property rights

Trademarks: Any sign you may be using to distinguish services you provide or goods that you sell from those of other businesses may be registered as a trademark. Examples:

• A specific name or pseudonym under which you post content
• A logo that you use in your videos, as your profile picture, on products you created and offer to buyers…
• A musical theme or a jingle that can be heard in your videos

Trademarks need to be registered and are only valid in the countries where they are registered. They allow you to prohibit others from using a similar sign with similar goods and services to those for which you claimed protection. This right lasts 10 years and can be renewed for 10-year periods.

Designs: The appearance of products (or parts of products) that results from their features, such as lines, contours, colours, shapes or textures may be protected through a design. They are valid for 5 years, renewable for periods of 5 years and with a maximum of 25 years.

Important: Registering and renewing trademarks and designs is possible both at a national level and for the whole EU. However, it implies paying fees to the relevant intellectual property offices. Unless you have an unlimited budget, you will have to devise a strategy (meaning: define which signs you need to protect, for what goods or services, and in which countries) if you want to secure efficient protection of your IP through these rights.

Copyright: This right protects all creative works, be it artistic, musical, literary or audiovisual, if the works express the author’s free and creative choices. It is generally obtained automatically after the creation of the work (meaning no registration is necessary) and stays valid for 70 years after the author’s death. A few examples of copyrighted works are:

• The music and lyrics that can be heard in a song
• The contents of a video
• Pictures or photographs (even memes !)
• If you are hiding behind a “virtual influencer”: the appearance and animations of your avatar

2. Enforce your rights against infringers

Trademarks, designs and copyright grant their owners an exclusive right. This means that no one else may use a registered trademark or design, or exploit a copyrighted work, unless the right holder allows it by granting a license. Making use of a protected sign or work without permission is called “infringement”. By way of court actions against infringers, IP right owners may claim damages and injunctions to stop any infringement.

Here are some important steps to follow for any influencer to protect their intellectual property:

• Stay alert: look out for any unauthorized use of your IP rights by third parties
• Save proof of any infringing behaviour: make screenshots, download any material where your trademark, design or copyrighted work appears without a license agreement in place
• Document your own work and date it (for instance with watermarks, witness testimonies or notaries that can confirm the “creation” of your copyright): this will allow you to prove ownership of a copyright and when this right started to exist
• Seek counsel with legal professionals: we can advise you on any matter pertaining to trademarks, design and copyright. Please contact us at info@lexdellmeier.com and p.gerber@lexdellmeier.com and we will arrange a 20-minute Teams call to discuss your questions free of charge.

3. Useful links

For more information, please visit the following links:

https://www.euipo.europa.eu/en/observatory/awareness/ideas-powered/ip-for-influencers  

https://commission.europa.eu/live-work-travel-eu/consumer-rights-and-complaints/influencer-legal-hub_en