Introduction
In the modern digital landscape, collaborations between brands and social media influencers have become a powerful tool for marketing and brand visibility. However, such collaborations also raise critical legal considerations, particularly in the realm of intellectual property (IP) rights.
For Malaysian brands and influencers, navigating these legal complexities is essential to protect their interests and mitigate potential infringement risks. This article explores the key IP considerations that should be addressed in collaborations between Malaysian brands and social media influencers.
(1) Ownership of Content
One of the primary concerns in social media influencer collaborations is the ownership of the content created. Typically, influencers generate original content, including images, videos, and written posts, as part of their collaboration with brands. The ownership of this content must be clearly defined in the collaboration agreement to avoid future disputes.
Brand Ownership vs. Influencer Ownership: Brands may wish to retain ownership of the content to use it for future marketing campaigns. On the other hand, influencers may seek to retain ownership to repurpose the content across their own platforms. In such cases, it is crucial to specify whether the brand will obtain exclusive rights to the content or if the influencer will retain some level of control.
Assignment of Rights: If the brand intends to have full ownership, the agreement should include a clause for the assignment of rights, transferring all IP rights from the influencer to the brand. This ensures that the brand can freely use, modify, and distribute the content without legal hindrance.
(2) Licensing of Intellectual Property to Influencers
In some collaborations, influencers may need to use the brand’s IP, such as trademarks, logos, or copyrighted material. It is vital for brands to establish clear licensing terms to govern the use of their IP by influencers.
Scope of License: The license should define the scope, duration, and geographical extent of the influencer’s right to use the brand’s IP. For example, the license may be limited to specific platforms or types of content, and it may have a fixed expiration date.
Quality Control: To protect the brand’s reputation, the agreement should include provisions for quality control, ensuring that the influencer’s use of the brand’s IP aligns with the brand’s image and values. This may involve pre-approval of content by the brand before it is posted.
(3) Moral Rights and Attribution in Social Media
Under Malaysian law, creators of original works have moral rights, which include the right to be attributed as the author and the right to object to derogatory treatment of their work. When influencers create content, they may have moral rights in that content, even if the IP rights are transferred to the brand.
Waiver of Moral Rights: The brand may require the influencer to waive their moral rights to ensure that the brand can modify the content without needing the influencer’s approval. However, influencers should carefully consider this waiver, as it may affect their professional reputation.
Attribution: If the influencer’s moral rights are not waived, the brand must ensure proper attribution of the content to the influencer. This includes acknowledging the influencer’s authorship in any future use of the content.
(4) Trademark Infringement Risks
Collaborations between brands and influencers may inadvertently lead to trademark infringement, especially if the influencer uses third-party trademarks without permission.
Clear Guidelines: Brands should provide clear guidelines to influencers regarding the use of third-party trademarks, ensuring that they avoid any unauthorized use that could lead to infringement claims.
Due Diligence: Influencers should conduct due diligence to ensure that any logos, brand names, or other trademarks used in their content are either licensed or used with permission. This is particularly important in collaborations involving product reviews or endorsements.
(5) Copyright Infringement and Fair Use
Copyright infringement is another risk in influencer collaborations, especially when influencers incorporate third-party content, such as music, images, or videos, into their posts.
Copyright Clearance: Influencers should obtain copyright clearance for any third-party content they wish to use. This may involve securing licenses or using royalty-free content to avoid infringement.
Fair Use Considerations: While Malaysian law provides for fair use exceptions, these are limited and should be carefully assessed before relying on them. Brands and influencers should avoid assuming that the use of copyrighted content without permission falls under fair use, as this can lead to legal disputes.
(6) Confidentiality and Trade Secrets
In some collaborations, brands may share confidential information or trade secrets with influencers, such as marketing strategies, product details, or future business plans. Protecting this information is critical.
Non-Disclosure Agreements (NDAs): Brands should require influencers to sign NDAs to safeguard any confidential information shared during the collaboration. The NDA should clearly define what constitutes confidential information and the obligations of the influencer to protect it.
Limitations on Disclosure: The agreement should impose limitations on the influencer’s ability to disclose or use the brand’s confidential information outside the scope of the collaboration.
(7) Dispute Resolution Mechanisms
Despite careful planning, disputes may arise between brands and influencers regarding IP rights or other aspects of the collaboration. Having a clear dispute resolution mechanism in place can help resolve conflicts efficiently.
Mediation and Arbitration: The agreement should specify whether disputes will be resolved through mediation, arbitration, or litigation. Many brands prefer arbitration for its confidentiality and speed.
Governing Law and Jurisdiction: The agreement should also identify the governing law and jurisdiction for any legal disputes. For collaborations involving Malaysian brands, Malaysian law is typically preferred.
(8) Potential Liability and Indemnification
Brands should be aware of potential liabilities arising from an influencer’s actions, particularly if those actions result in IP infringement or other legal violations.
Indemnification Clauses: The agreement should include indemnification clauses requiring the influencer to indemnify the brand against any claims arising from the influencer’s breach of IP rights or other legal obligations.
Insurance Considerations: Both parties should consider obtaining insurance coverage for potential liabilities arising from the collaboration, particularly in high-profile campaigns.
Conclusion
Collaborations between Malaysian brands and social media influencers offer significant opportunities but also present complex legal challenges, particularly concerning intellectual property rights.
By carefully addressing these legal considerations—ranging from content ownership and licensing to trademark and copyright issues—both brands and influencers can protect their interests, minimise risks, and ensure a successful partnership. Clear, comprehensive agreements that reflect the unique needs of the collaboration are essential for safeguarding IP rights and fostering a positive and productive relationship.
If you have any questions regarding the article, please feel free to contact our managing partner, Eugene Yeong.
Comments