Why Copyrights are Gold for Influencers | The Influence

Tomorrow’s most successful influencers will be the ones who make a point of understanding the earning power of copyrights today.

Intellectual property (IP) law is a dense legal topic and much of it won’t impact your influencer career. One major component of it will though — and that’s copyright. So what is copyright and what do you need to understand about it to set yourself up for riches?

Copyright is a set of rights that attach to an original creation the moment that creation is written down, notated or otherwise recorded. In simple terms, copyright is the ‘right to copy’. This means whoever controls the copyright controls the right to reproduce, broadcast, copy, exhibit or perform a work. Copyright can be applied to the following types of human expression:

• Literary, dramatic, musical and artistic works.
• Pantomimes and choreographic works.
• Pictorial, graphic and sculptural works.
• The typographical layout of published editions.
• Sound recordings.
• Motion pictures and other audiovisual works.
• Communication works such as broadcast TV/radio and internet transmissions.
• Compilations of works and derivative works.
• Architectural works.

Ideas in your head are not copyright. But if you think of an original song lyric or TV script and you write it down, then copyright automatically attaches. You just have to get it out of your head and record it in some manner. This article, for example, is automatically copyright. It doesn’t need to be registered with the Copyright Office or have a lawyer sign off on it.

Owning copyrights is potentially a path to great wealth. The copyrights associated with music publishing are a good example. Songs written by Michael Jackson and The Beatles, for example, still earn millions every day.

Michael Jackson’s songs will keep earning for his estate until at least 2079

The journey between you hearing Thriller on the radio and money arriving in the bank account of Michael Jackson’s estate is a convoluted one, but the copyrights on Jackson’s songs still generate over $1 million a week in royalties and will continue to earn until 70 years after his death. Similar rights attach to movies, TV shows, podcasts and books.

So from the perspective of an influencer, if a client asks you to create something for them like an original script, or a song, or a photoshoot, or a new cocktail recipe — copyright will be assigned to those creations. The important thing for your future wealth is deciding who gets to own that copyright.

Understanding ‘work for hire’

Let’s take the hypothetical example of you doing a photoshoot for Red Bull and the model in the shoot happens to be wearing a Levi’s jacket. Someone at Levi’s sees the pictures and asks to use them in an ad campaign for denim jackets. You want to do it — but who gets paid — you or Red Bull?

The answer all depends on the IP clause in your contract. If you agreed to a ‘work for hire’ clause, then the copyright will assign to the client. They paid for the images to be created and they will be able to sell the pictures to Levi’s.

Work for hire is the default understanding of the relationship whenever you’re in an employer/employee scenario. For example, if you work at a radio station and you write the music for one of the station’s promo stings — the copyright always belongs to the radio station. Similarly, if you work for a newspaper’s travel section and you take photographs as part of your job — the copyright in those photographs belongs to the newspaper automatically.

Influencer — employee or contractor?

The nature of the relationship between employee and employer or freelance contractor and client is an important one, with some potentially challenging legal issues. In most Western countries today there is a legal framework that assigns a range of protections and rights to employees that employers have to abide by.

This is things like health insurance, paid annual leave, sick days and minimum wage rates. In the past many employers have tried to avoid these obligations by terminating their employees and then rehiring them as ‘freelance contractors’. Governments have clamped down on this in recent years and tend to view these types of workers as employees, with all the associated rights, even if the company claims they are contractors.

The law in this regard is different from country to country, but the following scenarios are typical

1. You are an employee working for an employer. In this case, all the copyright in any content you create automatically belongs to your employer, but you are guaranteed a minimum wage, sick pay and a range of other compulsory benefits.
2. You are a bona fide freelance contractor. You will need legal advice specific to your jurisdiction here, but in this scenario, the nature of your work and your compensation will be laid out in the terms of the contract that you negotiate with your client.

Inserting the copyright clause that works for you

In scenario 2 you have the opportunity to set some conditions around copyright ownership in any content you produce for your client. If you’re unconcerned about maintaining the copyright you can insert a clause that makes it clear that any content created is “work made for hire” and as such the copyright falls to your client. This would be typical in scenarios where there is little likelihood of ongoing revenue from your content. Photographs of detergent and shampoo bottles for a supermarket flyer are a good example.

If you did think your creative work could be used again by other clients you can insert a clause that your content is not work made for hire and you will retain copyright. In such a scenario you would opt to license your work to your client. More on that later. In some territories, the “work made for hire” clause creates issues for the client as it means the government views them as your employer which may obligate them to provide you with a range of employee benefits. They don’t want this and you probably don’t either.

The easiest way to address this is instead of a work for hire clause, insert an IP assignment clause that gives your client all ‘right, title and interest’ in the content you create for them. If you want to maintain the copyright for yourself, then insert a clause that states that you maintain all right, title and interest, and you are licensing your work to the client.

When should you license your creative work?

Returning to the Red Bull and Levi’s scenario above. Most clients will try and ensure they keep all the IP in anything you create for them. Typically there is not a malevolent motivation for this, it’s just that it makes it easier for them when planning campaigns, as there will be no restrictions on when, where and how they can use your creative, now and into the future. Once their campaign is over, though, it is very unusual for a client to ever reuse a piece of content, and the earning potential of that creative content is lost.

Travel photography can often be licensed to many different clients

However, if, in the theoretical Red Bull scenario above, you suggested a licensing deal for the images, giving Red Bull exclusive rights in a specific territory for a specific time, then once that exclusivity had run out you would be able to relicense or on-sell those pictures to someone else. The catalogs of Getty Images and Shutterstock, for example, are full of images that have been created in this way.

If your client is reluctant, you can sweeten the deal by charging them less to license your creative than you would have charged them to own the copyright. For large multinationals like car companies and airlines, paying to own all copyrights is not a big deal so they would be unlikely to go for this option (it doesn’t hurt to try though). But for smaller clients, having thousands cut off their bill but still getting the images, video or music they need for their campaign is very attractive.

Although this article has focused on photography, that is only because it is one of the simplest examples of copyright to explain (everybody’s taken a photo at least once in their lives). But as detailed earlier in this article, the range of artistic activity that copyright attaches to is very broad. Scripts, music, painting, books, and even choreography are all copyrightable.

It’s true you will probably earn less for any work that you choose to hold on to the copyright for, but if you are an influencer who is proactive in marketing your catalog, offering licensing deals which you can repeat many times without having to repeat the work, has the potential to earn you more over the long term.

Originally published at https://theinfluence.biz on February 23, 2021.