{"id":6566,"date":"2023-03-06T16:40:17","date_gmt":"2023-03-06T19:40:17","guid":{"rendered":"https:\/\/leao.adv.br\/?p=6566"},"modified":"2023-07-24T14:39:27","modified_gmt":"2023-07-24T17:39:27","slug":"serie-conhecendo-os-contratos-de-propriedade-intelectual-edicao-02-contratos-entre-influenciadores-digitais-e-as-marcas-sob-otica-da-propriedade-intelectual","status":"publish","type":"post","link":"https:\/\/leao.adv.br\/en\/serie-conhecendo-os-contratos-de-propriedade-intelectual-edicao-02-contratos-entre-influenciadores-digitais-e-as-marcas-sob-otica-da-propriedade-intelectual\/","title":{"rendered":"Series \"Knowing Intellectual Property Contracts\" - Episode 02: Contracts between Digital Influencers and brands from an Intellectual Property perspective"},"content":{"rendered":"

With the modernization of advertising and new communication strategies, as well as the continuous development of dissemination media and new technologies, it has become increasingly common to advertise a product or service through a digital influencer in the figure of the influencer <\/em>, a term used to designate the one that will influence the trends of consumption and leverage the popularization of a brand. The influencer <\/em>makes use of his personal image and the trust placed in himself by his public to promote certain products and services and, by using his credibility in front of his spectator, it is necessary that both the influencer <\/em>, as well as the company that is being disclosed, have signed a contract guarding their rights and duties.<\/p>\n

To rule the hiring of a digital influencer, the rules of the Civil Code, the Consumer Protection Code and standards of the National Council for Advertising Self-Regulation (CONAR) are commonly used. In the next paragraphs, the main contractual aspects that must be observed when hiring a digital influencer for the dissemination of a product or service will be analyzed.<\/p>\n

In the case of a contracted advertising, it is imperative that the digital influencer use, in its publication, some easy way to communicate that that post is advertising, indicating true information about the product, under penalty of liability for misleading advertising or eventual damage that the product or service causes to the consumer if the information provided by the influencer is false. CONAR brings in its rules Articles 23 and 28, providing that\"advertisements must be made in such a way as not to abuse consumer confidence, not exploit their lack of experience and knowledge and not benefit from their credulity\"<\/em>and that\"the advertisement must be clearly distinguished as such, whatever its form or means of delivery<\/em>\u201d.<\/p>\n

Therefore, the company that hires an influencer must, in contract, require the influencer to use an advertising identifier in its post.<\/p>\n

The contract between company and influencer has the goal to mediate the existing service relationship, establishing rules, guarantees and duties, therefore, it becomes essential to observe and clarify all aspects of the partnership, in order to avoid future complications. Very important clauses are those that establish the price of each post, the frequency of the post and the format in which the image of the influencer will be conveyed in relation to the brand disclosed, the purpose of that advertising and, also, the forms and reasons for contractual termination. When we consider the aspects related to intellectual property, especially the trade protection, copyright and the use of personal image, we can highlight clauses such as Confidentiality Clause, Authorship and Title Clause, Image Use Clause and Industrial Property Protection Clause.<\/p>\n

Content created by digital influencers is protected by Intellectual Property rules and may have its said intellectual assets licensed or transferred to contracting companies. It is not uncommon for Digital Influencers to have their own trademarks, which can guarantee them the possibility of licensing a trademark when in partnership with a company that will use the influencer's trademark to advertise their products and services.<\/p>\n

It is important to remember that the Intellectual Property rights of third parties should only be used in the creation of content upon prior and express authorization of the owner and that the influencer needs to look after the brand image and the image of the contractor before the public.<\/p>\n

We highlight that there are risks associated with digital marketing, which can be avoided by establishing clear clauses on intellectual property protection, especially regarding to copyright infringement. The copyright aims to protect the creations expressed by means such as literary works, songs and films and caution is necessary when republishing content generated organically by third parties, and it is necessary to verify the material, in order to ascertain whether it contains intellectual property rights of third parties without proper authorization. It is possible to establish which of the parties will be responsible for the appropriate verification and search for authorizations.<\/p>\n

Finally, it is important to mention the need to include a confidentiality clause of the information acquired, arisen from the contractual relationship, by both parties, in the contracts for the hiring of digital influencers and, also, the inclusion of an attachment for the use of an image and a specific clause to determine the duration of the right to use the image. You can determine how long the influencer's content as well as the publishing format will be allowed.<\/p>\n

Given this scenario and due to the growth of the presence of the digital influencer, it is very important to conclude a contract to regulate these partnerships, and it is opportune to anticipate any risks through contractual protection.<\/p>\n

 <\/p>\n

By\u00a0Daniela Lopes Ferreira<\/strong>\u00a0(Lawyer at the Trademark, Copyright and Contracts Department at Le\u00e3o Intellectual Property. Graduated in Law from the Federal University of Rio Grande do Sul \u2013 UFRGS. E-mail: daniela.ferreira@leao.adv.br)<\/p>","protected":false},"excerpt":{"rendered":"

Com a moderniza\u00e7\u00e3o da publicidade e as novas estrat\u00e9gias de comunica\u00e7\u00e3o, bem como o desenvolvimento cont\u00ednuo dos meios de divulga\u00e7\u00e3o e de novas tecnologias, vem se tornando cada vez mais comum a publicidade de um produto ou servi\u00e7o por meio de um influenciador digital atrav\u00e9s da figura do influencer, termo em ingl\u00eas para designar aquele […]<\/p>\n","protected":false},"author":21,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-6566","post","type-post","status-publish","format-standard","hentry","category-leao-news"],"acf":[],"_links":{"self":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/6566","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/users\/21"}],"replies":[{"embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/comments?post=6566"}],"version-history":[{"count":4,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/6566\/revisions"}],"predecessor-version":[{"id":7182,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/posts\/6566\/revisions\/7182"}],"wp:attachment":[{"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/media?parent=6566"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/categories?post=6566"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/leao.adv.br\/en\/wp-json\/wp\/v2\/tags?post=6566"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}