This document discusses intellectual property rights (IPRs) and the legal risks that social media influencers face regarding IPR infringement. It notes that as social media platforms have become more accessible, influencers are more prone to IPR risks when using others' copyrighted content or trademarks without permission. The document outlines best practices for influencers to ensure compliance with IP laws and protect their own content, such as obtaining proper licenses, avoiding disparaging remarks about brands, and registering copyrights and trademarks. It emphasizes that influencers have a responsibility to understand IP laws due to their ability to impact audiences.

1. Social media influencers or creators are the persons who are popular, powerful, and relevant enough
to influence others within their online social sphere – generate ad revenue, product endorsement
opportunities, and other revenue streams using social media platforms such as Instagram, Facebook,
YouTube, Twitter, TikTok, Snapchat, Pinterest, amongst many others. Social media influencing is one
of the most impactful and e ective ways of promotion and advertising. However, as social media
platforms become more interactive and freely accessible, influencers, YouTubers, and creators
become prone to certain legal risks involving Intellectual Property Rights (IPRs).
Why do Influencers Need to Understand Intellectual Property?
INTELLECTUAL PROPERTYINTELLECTUAL PROPERTY
Social Media Influencers and Intellectual Property Rights
IPRightsinAfrica

2. With the ease of access and popularity of these social media platforms, copying of the content and
unauthorized use of trademarks/brand names have become rampant. The IPRs relevant to social
media influencers are of various kinds – trademarks, copyrights, domain names, brand names, etc.
When we talk about IP considerations for social media influencers, there are two vital aspects to
consider, which are as follows:
In the first place, it is imperative to ensure that the influencer’s social practices are IPR
compliant and do not infringe upon the IPRs of brands/celebrities/musicians/films.
Secondly, the influencers must protect their content, unique name, domain names, and even
hashtags under the relevant Intellectual Property (IP) laws.
Ensuring Compliance to IP Laws
1. Copyrighted Content
Copyright is a type of IP that protects the original works of authorship, such as photographs, videos,
written text, art, sound recordings, cinematograph films, and other original creations. It gives the
copyright owners the right to distribute, make copies of, display, or perform their original works.
Social media influencers need to ensure that they have proper permission (or otherwise qualify for a
copyright exemption, such as ‘fair use’) before using the creative works of others in videos, images,
or the text of social media posts. In most cases, the online use of creative works is not free of
copyright, and the influencers need to know if they need a license and, if required, take the
necessary steps to contact the copyright holder before sharing their material. Fair use is only
available for limited exceptions, such as disseminating educational information, criticism, etc.,

3. which is non-commercial. The boundary between commercial and non-commercial, in the case of
influencers, is tricky to prove as some may be able to prove that their content is for genuine criticism
or review, whereas, in other cases, there may be a promotion of another product or brand along with
the criticism of the copyright owner’s brand, which then becomes a commercial activity.
Several social media platforms have come up with their tools to check the infringement of IP rights;
for instance – YouTube has implemented a ‘Content ID’ system to assist the copyright owners in the
identification, management, and protection of their content. Copyright owners, usually limited to
the ones with large catalogs of content, can register themselves on YouTube. Whenever content is
uploaded to YouTube, the Content ID system scans the new content and checks for matches of
copyrighted content already present in the Content ID database.
2. Trademarks
Trademarks are a form of IP used to identify, distinguish, and indicate the source of the goods and
services of one seller from those of others. Primarily, influencers should obtain the written
permission of any brand whose name, trademark, logo, or products are featured in a social media
post, blog, video, or photograph. Posting content that contains another person’s trademark, brand
name, or logo may violate their IP rights. If an influencer makes any direct references to the
products or services of a brand, it is referred to as branded content, and the influencer must obtain
special permission to use that brand’s name in his or her content. Trademark laws protect the
trademark owners from two types of infringement, namely the likelihood of confusion and dilution.
The influencers should avoid using trademarks in a manner that is likely to confuse the customers
about the source of goods or services or ‘dilute’ a company’s brand.
In the recent decision of Marico Limited vs. Abhijeet Bhansali, the Bombay High Court deliberated
upon the duties and obligations of social media influencers. Marico Limited, which owns the popular
brand ‘Parachute’ in the category of coconut oil, had filed a suit against Abhijeet, a video blogger
who runs a YouTube channel called “Bearded Chokra.” The blogger had uploaded a video titled, “Is
Parachute Coconut Oil 100% Pure?” by criticizing Marico’s product. In the video, he made
statements such as “IT’S NOT AS GOOD AS YOU THINK!! I’LL PROVE IT!!!!” and that “It smells
similar to a dried or rotten coconut.” Marico argued that the video showed false information and
deceived the viewers into thinking that the tests conducted (as shown below) substantiated the
blogger’s claim that the Marico’s Parachute oil was of inferior quality. Marico also stated that
Abhijeet sought to endorse two other rival products by providing links for buying those products
from online stores and that his acts fell under the category of ‘commercial activities’ and not a
general review of the product by an ordinary consumer. The Court held that “such individuals only
knew too well that they wielded significant influence over their audience, and that their statements
have a magnified and profound impact. Followers place a certain degree of trust in social media
influencers, and accept their statements as facts without much scrutiny.” The Court also stressed
upon the fact that a social media influencer cannot make statements with the same freedom

4. available to an ordinary person. It was further observed that the statements were made with
recklessness and without caring whether or not they were true or false. The test conducted by the
blogger in his video and the articles relied upon did not prove that the statements made were true.
The Court held that “The Defendant cannot, under the garb of educating or bringing the true facts to
the public, provide misleading information to disparage the Plainti ’s product. Any campaign to
educate the members of the public by placing before them the true and correct facts may be
welcomed. However, such an excuse should not be used to put out misleading information, which
disparages, discredits, or belittles someone else’s product or influences the consumers not to buy
the said product. Additionally, the unauthorized use of the Plainti ’s registered trademarks by the
Defendant in a manner, which is detrimental to its distinctive character or reputation, cannot be in
accordance with the honest practices in industrial or commercial matters.”
A snapshot of the video uploaded by Abhijeet Bhansali
making claims against Parachute
3. Domain Names
Domain names are user-friendly and easy to remember addresses that users on the internet use to
locate any website. A domain name, quite simply, can be referred to as the ‘online identity’ of one’s
business. Each website has a domain name serving as an address, which is used to access the
website. Domain names are usually the business names followed by .com, .org, .gov, .net, .in, etc.
Often, domain names are also registered as trademarks if they fulfill all the conditions required for
registering a trademark. Once registered, the registered proprietor of a domain name will have all
the legitimate rights and authorities, which are commonly availed by the owners of registered
trademarks. Thus, social media influencers need to choose a domain name after conducting
appropriate background checks and ensuring that their selected name is not already registered or
infringes upon the IPRs of others.
How can Influencers Protect their IP?

5. It is imperative for social media influencers, creators, and YouTubers as well to protect their unique
content, which is freely accessible to millions of people on the internet. Influencers can not only
register but also enforce their IP. Online aliases, logos, slogans, marks, series names, and even
hashtags may be protectable as trademarks. Original videos, photographs, written text, artwork,
sound recordings, films, and other creative works may be protectable under copyright. Furthermore,
third-party use of an influencer’s name, image, or likeness can be protected as a right of publicity.
The best practice for influencers is to register their content for copyright as soon as it is created
along with their channel’s name or their name for trademark as soon as they begin using them on
social media in connection with their content.
Several social media influencers have taken steps to trademark their name. For instance, Lele Pons, a
famous YouTuber, has a trademark application under Class 41 (entertainment services) at the USPTO
(the United States Patent and Trademark O ce). Similarly, Kylie Jenner has trademark registration
under Class 35 for “Advertising services, namely promoting the brands, goods, and services of
others; endorsement services, namely promoting the goods and services of others.”
In the case of copyright, the law in some countries mandates copyright registration before any
monetary damages can be collected for the infringement of copyright, and therefore, damages can
only be collected from the date of registration (which can take a while). By the time registration
occurs, the major financial harm to the infringed work, and its owner, has likely been done. Almost
every other piece of content generates its most revenue during its initial availability. Therefore, it is
highly advisable to have copyright registrations in place for the unique content that an influencer
publishes.
Social media influencers also need to read and understand the terms of use/service for each social
media platform on which they wish to upload their content. Some terms of use/service give a social
media platform the ownership and control of items uploaded or posted to it. Some websites allow
users to own their uploaded content, which is why it is crucial to have a well-planned strategy before
starting to publish one’s unique content on these platforms.
Conclusion
The rules around the use of IP have changed drastically since social media has given all of us the
power to share content and be publishers ourselves. The issue of IP on social media is complex but
can be handled e ciently by taking the right steps towards protection as well as compliance. For
protecting their IP, influencers should:
Create a policy for the types of use they allow and the types they do not. The same is extremely
important when it comes to signing agreements for brand collaborations and promotions.
Be aware of the exact terms of a deal or contract that they sign.
Follow practices such as using the copyright symbol “©” and using digital watermarks for
content.

6. Monitor their content for any unauthorized copying or use. Tools such as ‘Google Alerts’ can
help in monitoring the content.
Obtain trademark registration for online aliases, logos, slogans, marks, series names, and their
unique hashtags.
Obtain copyright registration for original videos, sound recording, photos, written text, and
artwork.
Stringent IP laws and constant public scrutiny place the influencers who don’t comply with the IP
laws at a high risk of infringing the rights of owners. Ensuring compliance can be achieved by:
Avoiding the use of brand names, logos, trademarks, and copyrighted content without
permission and obtaining necessary permissions and licenses beforehand;
Understanding that they have a sense of responsibility and impact when reviewing a product
for their audience. Reviews should be genuine and based on facts. Disparaging a brand based
on false facts should be avoided;
Understanding that promoting products or services falls under the category of ‘commercial
activity’ and may not fall under the garb of fair use of copyrighted content; and
Exercising caution and due diligence before registering a domain name by checking if it is
deceptively similar to a known brand or its domain name.
 Copyright Law  Intellectual Property  Social Media Influencers  Trademark Attorney
Harboring Gra ti under the Copyright Law
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