Content usage rights can become an area of contention in influencer marketing, particularly where the scope of those rights has not been clearly agreed.

Whilst most agencies are familiar with the concept, disputes can arise where the rights have not been properly discussed, documented or understood at the outset of a campaign.

Differences in expectations may not become clear until after the content has been delivered. For example, a campaign may perform well, prompting the brand to seek wider use of the content and revealing that the parties understood the original agreement differently.

For talent management agencies, understanding usage rights is essential not only to protect talent but also to avoid disputes with brands and ensure that commercial opportunities are being properly valued.

Who Owns the Content?

A common misconception is that payment for content automatically transfers ownership to the brand. In reality, ownership and usage rights are separate concepts.

In most cases, the creator of the content will own the underlying intellectual property rights unless those rights have been expressly assigned. The rights a brand needs will depend on the nature of the brief and the intended use. Where the creator is engaged simply to upload content to a platform for brand awareness, the brand may not require a licence to use the content itself. A licence may, however, be needed where the brand wishes to reproduce, share, adapt or otherwise use the content beyond that agreed activity.

The starting point should always be understanding:

  • who owns the content;
  • what rights are being granted;
  • who is granting those rights; and
  • whether those rights are sufficient for the intended campaign.

Understanding the Intellectual Property Framework

A proper understanding of usage rights starts with an understanding of intellectual property law. Agencies need to be able to identify which rights their talent owns, distinguish ownership from licensing and understand what a contract permits a brand or third party to do with the content.

We provide practical intellectual property training for talent management agencies so that their teams feel confident interpreting campaign contracts, explaining rights to talent and identifying where proposed terms may go further than intended. This helps agencies safeguard their talent’s interests, negotiate from an informed position and maximise the commercial value of the rights being granted.

Not all Usage Rights are the Same

A creator may grant one type of usage right whilst retaining all others. It is therefore important for the contract to identify the precise rights granted for the particular campaign.

For example, a brand may be permitted to share content on its own social media channels but may not have the right to use that same content within a paid advertising campaign.

Similarly, content might be licensed for use on Instagram but not for wider use across websites, email marketing, retail displays or third party platforms.

For this reason, agencies should avoid treating “usage rights” as a single concept. Their contracts can instead be structured in a modular way, allowing particular rights to be included, excluded or adjusted to suit each campaign.

The contract should specify how, where and for how long the content may be used, together with any rights to edit, promote, sublicense or extend that use. This gives the parties clarity whilst making it easier to tailor the rights package as the brief changes from one campaign to another.

Organic Usage Rights

Organic usage rights generally relate to content being re-shared through a brand’s owned channels without paid promotion. It relies on the brand’s existing following and reach without paid promotion.

This may include:

  • social media feeds;
  • stories;
  • websites;
  • email marketing; and
  • other owned marketing channels.

Organic usage rights are often viewed as the starting point for negotiations, but even these arrangements should clearly establish:

  • duration;
  • territory;
  • uploading the content to the brand’s own socials;
  • permitted platforms; and
  • any restrictions on modification of content.

Agencies should be cautious of vague drafting that allows content to be used for “marketing purposes” without additional clarification.

Paid Usage Rights

Paid usage rights are often where the greatest commercial value sits.

These rights allow a brand to use content within paid advertising campaigns and can significantly increase the reach and value generated from the creator’s content.

A single piece of content may attract thousands, or even millions, of additional impressions when deployed through paid media.

As a result, agencies should consider:

  • the duration of the paid usage;
  • the territories covered;
  • advertising spend assumptions;
  • restrictions;
  • whether the content can be amended or adapted; and
  • whether any extension rights will apply.

Where paid media rights are not properly discussed at the outset, agencies frequently find themselves having difficult conversations later in the campaign when a brand wishes to “boost” content that has performed well.

Extensions and Renewals

One of the most common scenarios within influencer marketing is where a campaign performs successfully and a brand wants to continue using the content beyond the originally agreed period.

At this stage, agencies should resist treating the extension as an administrative exercise.

An extension effectively involves the grant of additional rights and should be approached as a new commercial negotiation.

Questions to consider include:

  • How long is the extension?
  • How has the content performed?
  • Is the content still driving value for the brand?
  • Have the creator’s rates changed since the original agreement?

The value of the rights may be very different several months after the initial campaign has launched.

Third Party Usage

Another area frequently overlooked is third party use. A brand may initially intend to use content itself but later decide that retailers, distributors, franchisees or commercial partners would also benefit from access to the content. Unless the original arrangements permit this, additional rights may be required.

From an agency perspective, it is important to establish early whether the content is intended solely for the brand’s use or whether wider commercial exploitation is anticipated.

Why Agencies Should Address Usage Rights Early

A talent management agency negotiating usage rights on behalf of a creator should ensure that the brand’s permitted use is clearly defined and authorised by the creator. This enables the agency to protect the creator’s rights, avoid unintended commitments and secure appropriate value for the rights granted.

Usage rights can be among the most valuable, yet most misunderstood, elements of a creator campaign.

By understanding ownership, licensing, paid use, extensions and third party exploitation, talent management agencies can reduce disputes, protect commercial opportunities and ensure that creator content is properly valued. Addressing these issues at the outset makes later negotiations easier to manage.

Amy Ralston is a Partner in Stephens Scown’s Intellectual Property, Data Protection and Technology team. She specialises in influencer and creator law and regularly advises talent agencies, creators and brands on contracts, intellectual property and content usage rights. Amy also delivers practical training to talent managers and commercial teams.