IPR for Social Media Influencers- Here's all you need to know

The increase in social media influencers have led to a new economy, where influence reigns supreme and content creators have become the new architects of trends, the curators of culture, and the drivers of digital discourse. Behind the scenes of viral posts and trending hashtags, a crucial realm often overlooked is the intellectual property playground of social media influencers. Global Influencer Market size was valued at USD 10.39 Billion in 2021 and is poised to grow from USD 13.86 Billion in 2022 to USD 139 Billion by 2030, at a CAGR of 33.4% during the forecast period (2023-2030).

With this detailed write-up of Compliance Calendar, let’s understand the IPR Protection for Social Media Influencers to know their rights, creativity, and the unique challenges faced by those who shape the online narrative – the social media influencers.

Why are social media influencers at greater risk of content copying

With Instagram, Facebook, YouTube, TikTok, Pinterest and other evolving social media platforms gaining massive subscriber bases everyday, the risk of creative misappropriation of original creators and social media influencers is also increasing.

Here are some reasons why popular creators on social media are more susceptible to content copying:

Content virality as a replicable concept: As content becomes more and more popular, the incentive to others for replicating it increases. Thus, content created by someone is likely to be copied by others to garner more page and post views.

Challenges of no physical barriers: Unlike traditional media like print and TV, there are minimal physical barriers to entry of any content on social media platforms. Anyone with an internet connection can easily access and replicate content, making it challenging for influencers to control the spread of their creations.

Tools that can mask original creator’s title: With freely available and easily accessible tools, it has become easy to remove watermarks and other identifiable tags belonging to the original creators of content, making it easy to pass off plagiarised content as authentic.

Ease of sharing features on social platforms and associated rewards: Social media algorithms prioritise those that create and share content rapidly. This creates perverse incentives to cheat, copy, plagiarise content in order to stay relevant and record higher views.

Lack of a global digital intellectual rights framework: Enforcing intellectual property laws when multiple jurisdictions are involved is highly challenging. Influencers are likely to face difficulties in taking legal action against content copying, especially when dealing with international infringements.

Intellectual Property - Understanding it from the lens of social media influencers

Creative ideas are monetizable assets of influencers. In this age of constant sharing and innovation, understanding and safeguarding intellectual property rights has become the linchpin for influencers shaping the digital landscape. It also ensures the original makers of the ability to protect their creative content, capitalise on it and gain recognition in the market and the business industry.

Copyrights for digital influencers - The Copyright Act defines ‘copyright’ in Chapter III as, a copyright shall subsist throughout India in the following classes of works, that is to say, -

• Cinematograph films;
• Sound recordings
• Artistic works
• Dramatic works
• Musical works

Thus, films, soundtracks and other artistic works created in the media industry are exclusively covered under the Copyrights Act. Ancillary to this, similar artistic works created in the digital space by social media influencers are also included in copyrights protection.

Copyrights vest not in ideas but their actual expression - While there is no copyright that can be granted for an idea, the law protects the expression or the manifestation of the idea. This leads to copyrights existing in works of literature like books, dramas, scripts, music, lyrics, computer programs etc. Thus, a musical work or sound recording or an original composition can be granted a copyright in India. This is not all, for those in the creative arts space – copyright can also be sought for sculptures, artwork, and photographs. The only other requirement besides originality is the tangibility of the creation that is expressed on a medium. In the case of digital influencers, this medium is the internet where their copyrightable ideas are expressed.

Benefits of obtaining a copyright in India

Since copyright is a legal protection of a bundle of rights, a copyright in case of a sound, video, audio, voice-over etc expressed by an influencer on a digital medium exists for its various components. This may include original lyrics, creative expression of a musical composition, script, presentation of products etc.

Each of the several rights existing can then be assigned, reassigned and licensed.

• Reproduction of the work - Copyright Act also allows the owner of the copyright to reproduce the work, store it in any medium such as electronic devices, web access etc.

• Performing the work in public - The owner of copyrighted works can perform the work in public, make translations of it, make adaptations of the work in other languages etc. However, performance of the work in “private” may not be given protection.

• Filing a suit for infringement of copyright - The owner of copyright can bring an infringer of his or her copyright to the court. What the court will then assess is whether the infringed copy has made use of substantial skill and labour of the original producer. Expert evidence can also be taken to appreciate differences between the two works.

• Preventing alteration and distortion of one’s works - The author of the copyright also retains a right to have his name published in all copies of his work, and also prevent alteration and distortion of his original work.

• Licensing the work for revenue - A voluntary licence can also be granted, whereby the copyright owner of an existing work or the prospective owner of such copyright in any future works to be created, may also grant any interest in the right by licence in writing.

Is registration of copyright a precondition for prosecution?

Although registration is not a necessary precondition for bringing the suit against illegal reproduction of copyrighted material, it is considered favourable, as it helps establish a prima facie cause. In the absence of registration, an innocent person cannot be presumed to have knowledge of the existence of the copyright.

Online selling by small businesses and Intellectual Property Rights

With micro, small and medium businesses shifting to the low-cost online selling models, there is a huge threat of images and videos of original product ideas and advertisements being lifted and pirated by other brands. Protection of intellectual property rights can facilitate and help small businesses grow. It also helps to establish brand trust and awareness as it takes investment of time in developing content and advertising original inventions, services and products.

Intellectual property thus benefits small businesses that emerge through social media platforms like Instagram, Facebook, etc.

Securing trademarks for your online business and social media branding

Trademarks can refer to distinctive words, sounds, colours, graphics, symbols used by your business in its dealings. The iconic ‘tick’ of Nike, the yellow colour with Maggi and McDonalds, the distinctive blue-purple of Cadbury - are all iconic trademarks. Trademarks come to be associated with the quality of goods and services offered and thus are a very valuable intellectual property for your business.

A secured trademark provides the owner with the exclusive right to use the trademark in relation to the goods or services for which it is registered. This means you can restrain any third party from unauthorised use of your trademark.

The courts dealing with cases on trademark protection in India lean in favour of parties with a registered trademark showing prior use, as compared to an infringing mark user. This means, your case against a person using the same mark is legally stronger, if your mark is registered and put to use on goods (or services) earlier than that of the defendant. As the owner of the trademark, your business can seek remedies such as damages for loss caused and injunction against any future use of the same mark by a third party.

Tips on IPR for Social Media Influencers

Signing appropriate service agreements: Often, big brands rope in celebrity social media influencers to promote their products or services. In such cases, drafting a service agreement between the influencer and the brand can help determine intellectual property rights, the usage of the content in terms of platforms and time, in addition to the terms of remuneration. Getting an expert to draft these initial service agreements can go a long way in protecting your digital rights and intellectual property as an influencer.

Licensing agreement: Through a licence agreement, content creators can allow any kind of their original content - such as their art, music, movie, dialogues, to be used by a client. This can also create a legitimate revenue stream through royalties.

Applying for a copyright registration: This also vests the right of reproduction in the creator. In other words, it means that a person shall not make one or more copies of a work or of a substantial part of it in any material form including sound and film recording without the permission of the copyright owner.

Using technical tools: Adding a copyright sign, your channel name/Instagram handle, creation date, digital watermarks, a logo and other relevant details can help secure your content. Additionally, there are tools that insert your copyright details at random intervals to video-based content, making it harder for an individual to publish infringing copies without your title.

What may not be considered copyright violation in the age of social media? Exceptions to the copyright law

There is a general lack of precedents in Indian law for copyright violation with respect to social media influencers. However, an accepted doctrine that gives exemption for incidental copyright violation is that of “de minimis”. It usually applies when either only a small portion of any work is copied, or there is no substantial similarity or where infringement is of little importance.

In a landmark case decided in the US ( On Davis v. Gap Inc. 246 F 3d 152, 173 (2nd Cir 2001).), the court opined -

“Most honest citizens in the modern world frequently engage, without hesitation, in trivial copying that, but for the de minimis doctrine, would technically constitute a violation of law. We do not hesitate to make a photocopy of a letter from a friend to show another friend, or of a favorite cartoon to post on the refrigerator. Parents in Central Park photograph their children perched on Jose de Creeft's Alice in Wonderland sculpture. We record television programs aired while we are out, so as to watch them at a more convenient hour. Waiters at a restaurant sing “Happy Birthday” at a patron's table. When we do such things, it is not that we are breaking the law but unlikely to be sued given the high cost of litigation. Because of the de minimis doctrine, in trivial instances of copying, we are in fact not breaking the law.”

Thus, where the purpose of the violation can be demonstrated as arguably non-commercial, or meant for entertainment in closed groups, or the intent of the copyright violator was not to misuse another’s copyrights, the courts are inclined to allow the defence of de minimis principle.

Other exceptions expressly mentioned in Section 52 of the The Copyrights Act, 1957, are enlisted and explained below:

• Fair dealing of any work: This includes utilisation of works belonging to another for private and personal use, including research, review, criticism, or reporting as current events or current affairs. This also includes circumstances such as performance of literary or dramatic works by staff or students of an institution. A recording played in an enclosed hall for residents or by a non-profit club is also not copyright violation.
  

• Reading or recitation in public: the reading or recitation in public of reasonable extracts from a published literary or dramatic work.

Intellectual Property Rights are a source of revenue for influencers and businesses. Protecting key intellectual property is a strategic investment, ensuring that such creative resources remain a valuable asset. Connect with our experts at Compliance Calendar to figure out how to utilise IPR filing such as trademark registration and copyright protection for long-term success and influence in the evolving landscape of social media.