Minimizing the Media Liability Risks of Social Influencers

The rapid growth in companies leveraging the promotional power of social influencers has been matched by a rise in media liability lawsuits targeting both influencers and the brands they represent. While litigation often involves the unsanctioned use of copyrighted or unlicensed material, the violations are often unintentional.

One example is an influencer contracted to promote a cake mix brand. Skilled at using music and visuals to share personal narratives with followers, the influencer posts a video on a platform like Instagram or YouTube, showing herself baking and decorating a chocolate cake, synchronized with a decades-old song about chocolate. If the song isn’t in the public domain or part of the platform’s licensed music library, both the brand and the influencer could be liable for copyright infringement.

In this example, the influencer deliberately chose the music that accompanied the video. However, similar liability may arise when music is innocuously playing in the background. For instance, a sports organization may hire an influencer to attend a game to promote the team. While the music played during the game is licensed for in-venue purposes, the songs may not be authorized for distribution on a social media platform. In such cases, multiple composers could sue both the influencer and the sports organization for intellectual property infringement.

Creative Constraints
People who become social influencers are often highly creative entrepreneurs who build authentic personal connections with a community of followers. While seasoned content creators who are paid for their services generally understand the need to comply with laws involving false or misleading advertising, less experienced influencers, such as those promoting a brand in exchange for free products, may have limited awareness of liability risks like defamation or copyright and trademark infringement.

This unforeseen litigation possibility for brands leveraging the promotional value of influencers has grown dramatically. Thousands of media liability lawsuits seeking millions of dollars in compensation are filed each year by law firms specifically focused on such cases. Since the intellectual property infringement is clearly established, a “fair use” defense generally does not apply. The likelihood of potential liability and expensive litigation often compels defendant companies to initiate settlement talks rather than contest the claim.

Many organizations lack a standardized process ensuring that influencers understand the intellectual property risks associated with the content they create and disseminate. If a lawsuit emerges, the organization’s general liability insurance policy covering independent contractor errors and omissions is likely to exclude coverage for media and advertising professionals like social influencers. Standalone media liability insurance fills this gap, covering the cost of lawsuits and settlements stemming from published content.

Making Learning Easier
To control the rise in the unsanctioned use of copyrights and other unlicensed material by influencers, QBE North America, a leading provider of media liability insurance, is offering enhanced coverage for companies that partner with influencers to promote their products and services. The Influencer, this innovative media liability coverage, requires influencers to complete a learning module on the varied liability exposures they may face. After viewing the video, influencers take a brief quiz to confirm their understanding of advertising best practices and legal principles such as copyright, trademark, defamation and right of publicity.

The primary intent of the learning and verification solution is to reduce the frequency of media liability claims. If an influencer passes the quiz, the brand also has the option to purchase a media liability policy on their behalf.  The Influencer coverage will protect both the company and the influencer against liability arising from the promotional content created by the influencer on behalf of the company. Given the sustainable value of influencers in promotional marketing campaigns, a learning solution and insurance coverage that helps minimize risks is a worthwhile resource for brands.

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