This case is a great reminder for brands and influencers about usage rights and the importance of understanding creator agreements.
A model and creator is suing a beauty brand she partnered with in federal court for false endorsement and misappropriation of likeness.
Under the influencer agreement, the creator agreed to post 1 photo and 1 video to Instagram and granted the brand rights to that content only. Later, she discovered that the brand used another image (shown above) taken from her IG account and used that image to promote that brand in stores across the U.S.
Because she did not grant the brand usage rights to that image or her likeness more broadly, she sent a demand letter to the brand seeking $40,000 in additional compensation.
When the brand ignored the demand letter (never a good idea), she filed this lawsuit.
The brand has until August 22 to respond, and I’ll track this one as it progresses.
The issues presented here come up over and over again.
Brands often mistakenly assume that because they engaged a creator for one campaign, they can use that creator’s images and likeness however they want.
That’s not true, unless the agreement covers such usages.
Here are just a few of the issues that you want to consider as you (preferably through your legal team) draft your agreement:
-Who owns the rights to the content?
-Where can the content be used, and for how long?
-How is the influencer being paid, and when?
-What publicity rights are being transferred?
-Is there an exclusivity clause, and is everyone okay with its scope?
-Does the brand get to approve the content before it goes live?
-Where will you resolve disputes, and what law will apply?
-How do you terminate the agreement, and what happens when you do?
Thinking through all of these issues in advance will save you time and money down the road.