Let me tell you a story about an influencer – let’s call her Olivia. One day while watching TV, she saw a clip of a YouTube video she’d made for a vacuum company appear as a TV commercial. Startled, next, she noticed images she’d taken for the firm’s website pop-up as online and social media ads – they were everywhere. Her images were also appearing in multiple magazine advertorials. Olivia was furious. She never agreed to any of this and had not been paid for it. But the truth is, Olivia had agreed to it – unknowingly.
Seems farfetched? Far from it. This is what can happen if you don’t understand contract clauses on intellectual property ownership and usage rights.
I know contracts are at the dull end of the fun barometer, but getting it wrong can cost you dear. It could compromise your integrity as an influencer, lose you thousands of pounds and ownership of the content – and even put you in a potential ‘breach of contract’ if two conflicting clients both use your image for advertising at the same time.
So, what did Olivia do wrong? Put simply, she signed a contract that gave the vacuum firm full ownership of any content she created for their campaign ‘in perpetuity’ – which means forever – in any territory in the world. This means she resigned all her rights so the client could edit, alter and adapt the video and images in any way they wanted.
Your content is your product so it’s essential you understand ‘usage rights’ to protect your business and brand.
What are usage rights?
In the context of our industry, usage rights are granted via a contract to a client, by you, and stipulate what ‘use’ the client has of the content that you created for their campaign. For example, your original brand deal might be one YouTube video, one Instagram post and story, and you agree a fee for this. Usage will be a ‘grant of rights’ for the client to use that content in another way, such as boosting the content across Instagram with a bigger media budget, making it into a TV ad or reposting on retailer websites to promote their product.
Granting usage rights should be an additional fee, not part of the fee for the posts
The original fee is paid to you to expose the client to your audience on your feed organically. Extra client use alters your content into an ‘advertising asset’ and means your association with, and endorsement of that client, will receive much greater exposure. Put simply, you should be paid for that. Giving away usage is like not getting paid for working overtime.
How do you work out fees?
Create a rate card for yourself. If you have an agent, they should know what are good, fair rates. Set fees for use on retailer websites and for TV. If a client wants to boost your social media posts to a larger, targeted audience, then ask for a reasonable percentage of their boosting budget. If their budget goes up so does your usage fee and vice versa – it’s fair for all. If they don’t know their boosting budget yet, agree a cap and write this into the contract i.e. ‘paid promotion granted up to a spend of £5,000 only’. If they want to increase it, they’ll have to pay more later.
Know your terms
Usage rights and fees also need terms attached to them. Are you granting them the right to boost your Instagram post for two months or six months? Can they use your content in the UK only or globally? The more you give, the higher the fee should be.
Ultimately, this should always be about finding a fair and balanced agreement that both parties are happy with. Sometimes you will need to be brave, and if you don’t feel you are getting an adequate fee for the usage requested – then walk away. Not all deals are good deals.
Do:
1. Always read the contract thoroughly and make sure you understand it. Highlight any parts you don’t undertstand and take professional advice. It is a legal document and once signed by both parties is fully enforceable.
2. Consider drawing up your own contract template with a standard clause on usage rights that you are comfortable with. Tell clients you’d like to use your contract. Some won’t – but some will. Often, you’ll end up creating a new template between the two of you that everyone is happy with.
3. Be cautious about giving a client the right to adapt, edit or modify your content. Ensure you have a ‘final right to approval’ to ensure you are happy with how the client has adapted your work.
4. At all times, make sure you know what you are granting to whom to avoid a conflicting situation i.e. don’t agree immediate usage to Client B, if you know that Client A, their competitor, is still boosting your Instagram post from three months ago. Appearing as the face of two competing brands at the same time is bad for everyone and it might put you in breach of contract if you have agreed any form of exclusivity with one of those clients.
Don’t:
1. Transfer your Intellectual Property (IP). If you do, you are passing the ownership of the content to the client. If they own it, they can do what they want with it. Instead, tell them they can license the content for additional usage rights for a fee instead.
2. Waive (give up) your moral rights – basically your right to be identified as the originator of the content and your right to object to derogatory treatment of the content. Your image, likeness and voice are your brand too.
3. Grant usage rights without reasonable fees. Know your worth.
Disclaimer: I am not a lawyer and have no professional legal training, all my points of view are based on years of experience, personal research and learning on the job. For any complex contracts, I would always advise you to seek professional advice.
