What we’re talking about
Many small businesses rely on informal arrangements with content creators: think getting a friend to take photographs for your brand, or arranging for an Instagram influencer to post a photo of your product via DMs. While you might get the content you need that way, you won't necessarily own it or have the legal rights to use it.
Content rights don't transfer automatically to the person that pays for content or commissions it. Under most copyright law, creative content (whether photography, video, social posts, or illustrations) remains under the ownership of the original creator, and brands need to license it to use it. That means putting an agreement in place that outlines where, how and for how long the content can be used.
Why it’s important
These days, great content is essential for almost any kind of marketing or campaign – and creating it can be both expensive and time consuming. That's why it's important to make sure you're able to use any content exactly the way you want to. While it's tempting to rely on goodwill, you should be prepared for cases where your relationship with a content creator changes or wanes, and their ideas about what you can do with their content might change. That's what a formal licensing or ownership transfer agreement is for.
Things to note
You need to consider rights to all kinds of content. Photography is one of the more obvious categories of content – whether it's photography you commission yourself or get from a stock images site – but video, illustration and music all require rights as well. And, if you hope to use content that influencers create featuring your brand on your own channels, you should negotiate usage rights for that as well within any agreement related to the collaboration.
Licensing content is different from owning it. Creative content is generally considered intellectual property. Unless rights are specifically assigned to transfer copyright, the content creator owns the intellectual property and brands just licence it for a specific use over a period of time. It is possible to transfer copyright (and therefore ownership) to a brand, but that requires a specific agreement that goes beyond a standard licence (and will likely cost a lot more).
There are many different parameters to consider when arranging usage rights. It's not just a case of getting an agreement that says you can use the content. You need to specify whether you have any exclusive rights to the content or whether the creator can license it to others as well; how you will use the content (for print materials, on social media, on packaging, on your website); where, geographically, the content will be used; how long you’ll be able to use the content; and what, if any, modifications or edits you can make to the content.
The more control you want, the more you will likely end up paying. In an ideal world, you would secure ownership or copyright for the content or an exclusive, unlimited, worldwide licence for use. However, that kind of agreement will cost a lot as the creator loses the opportunity to generate any more income from that content. So it's important to consider what's most important in each case – is it that you can use the content forever, or that you can use it on any material you want? Or is it OK to get a more limited, short-term licence for a lower fee?
How to secure content rights
Work it into the process. It's easy for this important step to slip through the cracks when you're working to a deadline or your focus is more on briefing or searching for the right piece of content. However, you must make sure you agree and formalise usage rights before any content goes live – so build it into your commissioning or creative process.
Decide what usage rights you need. Have a think about how you will want to use the content immediately and in the future. If it's channel specific or for a timely campaign that will become out of date quickly, you could agree on more limited usage rights. However, if it's an essential piece of content and you want to have the flexibility to use it a multitude of ways, you might want to secure a copyright assignment or unlimited usage rights.
Check to see what's on offer. Sometimes content comes with a standard licence, eg, a stock photo you might pay for and download from a website. Make sure you read the fine print and ensure the licence you bought covers the use you're intending.
Negotiate what you need. If an offered agreement doesn't have the correct usage rights, or there is no agreement at all to work from, make sure you make clear to the content creator what you're going to be looking for in terms of usage.
Put it to paper. Once you've agreed on the usage rights, make sure this is formalised in a legal agreement. You might get this drafted up on a case-by-case basis by your go-to legal team, or use a template (created with the help of a lawyer) that you can adjust and use for different projects.
Store it safely. Once your agreement has been signed by all relevant parties, make sure you keep it safely and that it is clear which pieces of content it applies to. If you have a content library, it's important that everyone pulling from it knows what they are able to use in any given situation.
You should have a formal agreement with any content creator you work with outlining the rights you have to use their content.
Content usage rights are not one size fits all. The agreement you land on will depend on how long you plan to use the content and on what channels.
The more usage rights assigned, the more expensive the content is likely to be – copyright transfer is likely to be the most expensive.
Find free sounds, audio, video and images that have generous licences using this list of sources from the International Multimedia Journalism MA based between the Beijing Foreign Studies University and the University of Bolton.
Download beautiful, free photos that come with ‘an irrevocable, non-exclusive, worldwide copyright license, including for commercial purposes’ from Unsplash.
Get a sense for best practice around influencer content rights using this guide from Zine.
Learn about all the essential aspects of a social media influencer agreement with this podcast from Fordham Law’s Startup LAWnchpad podcast.
Delve into relevant legal lingo with this guide to the opportunities and risks around licensing digital content from Practical Law, an online legal know-how service by Thomson Reuters.