Influencer marketing is governed by the FTC Guides, with requirements to disclose and monitor. In some industries, such as gaming or makeup, influencers might make claims that advertisers would be responsible for. From an ownership perspective, brands that hope to keep influencer data raises questions about what the role of an influencer is—a cheerleader for the brand or a source of the brand’s CRM database? It is likely that influencers are not equipped in the sales force. However, influencers are gaining more leverage and want to own data. In any event, it is much more likely that the FTC would go after a brand/advertisers rather than an influencer.
When it comes to IP, there are different legal regimes that present a risk to advertisers. Anything that the influencer says on behalf of a brand subjects the advertiser liable. Trademark, copyright and right of publicity are usually implicated. For example, sometimes influencers will post photos that they do not own or have copyright to or post photos with third party products in the background, leading to risk. This requires training and hiring influencers with experience. When it comes to global influencers it is also important to geo-post the advertisement if possible and comply with language rules.
Listen to our Tech Law Talks podcast episode on influencer marketing.