The variety of innovative advertising tools and techniques has created new opportunities for companies to expand advertising beyond its traditional supporting role. Advertising revenue represent the main or only source of income in many online business models. Small businesses can achieve powerful results with the usage of digital marketing tools. However native advertising, influencer marketing and other techniques pose a pitfall in protection of intellectual property, which can be often stolen or infringed. Over the course of my practice as IP specialist, I have seen digital media, especially social media changing the way people think about IP issues. People believe that just because they see a content online that automatically means that this is a public domain, and that they can freely take and use the content, especially with the wrong understanding and assumption the content falls under Fair use.

Social media has given all of us the power to share content and be our own publishers. People believe that just because they see a content on public areas that automatically means that this is a public domain, or that it falls under the fair use domain and that they can freely take and use the content.  Things are happening instantly on social media, often without effective and on time response of intellectual property owners. That is why it is so important to plan ahead, try to monitor and protect against intellectual property violations over the internet.

As brands find that showing traditional advertising is not effective, especially in digital media, they are turning to non-commercial content and non-traditional distributional methods (such as proprietary distribution channels) to reach their customers.

Nowadays every brand has a Facebook brand page, or Instagram, Twitter, LinkedIn or YouTube channel, where they can directly communicate with their consumers and potential clients. Instead of using traditional media approach, that create strictly commercial messages and campaigns, they are actively creating and distributing their own content, or they engage with media and production companies to create content that promotes the brands ‘marketing.

The usage of native advertising (advertising that matches the form and function of the platform upon which it appears and it manifests as a video, article or editorial and is paid by the brand) has proven to be very effective for both small and large companies for the variety of people they can reach, for the possibility to earn people’s trust and build brand reputation, be cost effective, transparent, boos revenues, reduce asset creation costs,…

Infringement and theft of intellectual property online have the same consequences as infringement and theft in real life. But they hurt and damage brands’ reputation much more and much faster.

Companies can protect themselves first with proper intellectual property protection, second with the usage of tools that can detect and discover how the content is being used online and another way is through browse web agreements. These agreements should have clear policies regarding intellectual property violations, which demonstrates to outside parties that the organization is committed to warning users against violating intellectual property.

Brands often choose influencer marketing as a digital marketing tool. In United States of America native advertising and influencer marketing are subject to the Federal Trade Commission (FTC) Act here and self-regulative provisions in Europe urge advertisers and endorsers, such as bloggers, to disclose any commercial relationship. These disclosures should be clear and conspicuous because advertising to consumers should be recognizable as such.  Influencer contracts are generally customized to define the specific scope of the work the rights afforded the brand with UGC created during campaigns. Most contracts will address several key points:

  • Specifically what type of content is to be created for the campaign, including hashtags and disclosures
  • Written outline describing the use of content created for your campaign across your own social media accounts
  • Whether or not your company gets the full rights to the content your influencer creates[1]

Properly establishing ownership means the brand gets full right to the sponsored content. When working with influencer it is also important to specify what kind of content the agreement covers. It is also important to get permission for third-party logos, products, songs, slogans, photographs or any other content if the influencer uses them in your campaign.

In conclusion, native advertising and influencer marketing are powerful advertisements, however keep legal obligations in mind before sharing any content, and make sure to properly protect your own. Be clear which aspects of content belong to you, decide which platforms are right for you, and how they manage intellectual property rights, discuss and set up the campagne with influencer, check the content before it goes viral.


[1] https://www.theshelf.com/the-blog/social-media-laws