Asking For Usage Rights: A Bible For Ecommerce Brands To Stay Out Of Trouble

User-generated content (or UGC) has become a staple type of content we come across on social media — which encompasses any non-branded content that mentions your brand online.

This includes influencer-generated content (or IGC), which is known as another form of UGC. And as the name suggests, is content sourced from influencers that mention your brand.

Both are incredibly valuable for brands because they (1) help you build brand credibility, (2) lower your costs of in-house content creation, and (3) you've got original content to repurpose.

Well, as long as you can secure the content rights to it.

Sharing User-generated content (UGC) without explicit consent or respecting a consumer's intellectual property rights can land you in some deep water. So deep that it can involve copyright issues and potential legal action.

It doesn't matter if they have 100 followers or 100,000 followers, you need to get consent to use the content for commercial purposes.

That said, what we're going to talk about in this guide can be used in the context of UGC created by your customers or IGC created by influencers. So before you take the stance of "better to ask for forgiveness than permission" — let this be a warning.

In this article, we're going to cover:

• Who owns the user-generated content (UGC) about your brand?
• Why it's important to secure content rights: the situation every brand should avoid
• How to ask content creators usage rights to the UGC about your brand

Who Owns the User-Generated Content (UGC) About Your Brand?

Many brands will understand intellectual property laws when it comes to trademarks, advertising, and products. When it comes to social media content with intellectual property, it's the same thing.

It doesn't even matter if you've paid for the content, if you haven't obtained legal rights to the content, you don't own it. If you ignore this fact, you can run into legal issues with the Federal Trade Commission (FTC). And we don't want that.

Broadly speaking, the copyright (which legally allows someone the right to publish, edit, modify, sell, or repurpose) belongs to the person who created the content. In the context of UGC, this is creative output from another person that your brand has no right to use — without receiving the content rights first.

In other words, if you didn't create the content ... you don't own it.

If you do get consent for using the content, make sure you are clear about what you want to do with it. Putting a written contract in place is a great way to do this (more on this later).

For the sake of clarity, let's run through a couple of common scenarios of "who is the copyright owner?" — and what the content rights would be.

Scenario 1: Does the influencer own the content rights when they post about my brand?

Question: An influencer has posted content with my product, without my team ever previously interacting with or contracting them. Now what? Do influencers own this content? Even if you didn't ask them to post about your brand?

Answer: The influencer owns the rights to this content. It is their intellectual property and you will need to ask for permission.

Scenario 2: Who owns the content rights when a brand collaborates with an influencer for marketing purposes?

Question: What if an influencer has done a social media take-over or collaborated with you? Maybe featured in a live video under your handle — who owns this content then?

Answer: When you get into a situation like this, it can be tricky to navigate who actually owns the content that is produced, especially when the content ownership is not defined in writing.

If you don't have a contract in place that clearly defines your rights to use the content — assume that any content created during a campaign or collaboration belongs to the individual influencer who created that content.

This is where a contract is important to put in place.

You need to define the scope of the work and the rights your brand will have in relation to the content being created during this campaign or collaboration. Make sure you list specifically what type of content is to be created for the campaign (i.e live video), describe the use of content created for your campaign across your own social media accounts, and outline whether your brand gets the full rights to the content your influencer creates.

Why It’s Important To Secure Content Rights

Apart from it being part of the law, content rights management is an important situation within the influencer marketing space for you to be aware of. Not only can you face some legal consequences, but you can also burn bridges too. And by that we mean, losing all the hard work you've put into building strong credibility with influencers (even your customers).

What are the consequences of not getting permission?

It can be costly, you could face legal battles, and you put your brand's reputation at risk. While there can be exceptions, copyright infringement penalties are significant that can range anywhere from $750 to $150,000 for each work infringed.

Even an international supermodel like Gigi Hadid is not excempt to the rules.

Hadid was sued for copyright infringement by a New York photo agency called Xclusive-Lee in 2019 — after the supermodel posted one of their photos to her Instagram account without consent.

Long story short, Hadid defended the case and wasn't charged — but not for her justifications. Hadid argued that by nature of copyright law, the photo was an example of "fair use," which is wasn't. However, because the agency Xclusive-Lee did not receive copyright registration by the time they filed the lawsuit against Hadid, the charges were dismissed.

So even though the photo agency had submitted their application to get copyright registration, they had no leg to stand on in court because they had not officially been granted the copyright registration.

Now, there's a few things to take away from this story:

1. Never assume you have the right to share content (even if it's something to do with your brand)

2. If you want to share it, ask for permission to do so

3. If you don't, be prepared for the wrath of a legal nightmare

As soon as you come across an influencer organically posting about your brand without you having to reach out, compensate, or contract them — don't ever repurpose without usage rights from them first.

Not only will this burn a major bridge between the brand and this specific creator but will serve as a deterrent for any future influencers looking to build a relationship with your team.

The Nuggs collab gone wrong: the copyright situation every brand should avoid

We put a lot of emphasis on repurposing influencer content into your paid social efforts (i.e facebook ads) but you still need usage rights.

The Nuggs example is well documented — the influencer completed blasted this brand, and for good reason. So what happened?

An influencer named Derrick Downey Jr. reached out to Nuggs to collaborate back in November 2019. After some negotiations on price, Derrick agreed and went on to create some great content for them. He submitted it for approval. A month had passed and he still had not heard back.

It wasn't until he was told by his many Instagram followers that he was appearing in some of Nuggs paid advertising.

You can check out all the details of what went down in Derrick's Instagram post.

But here's a few things that should be pointed out here:

1. Nuggs was using Derrick's video in ways they did not have permission

2. There was no contract in place, so the brand did not have content rights to use any of it

3. Even after ruffling some feathers, Nuggs had the audacity to ask for the rights to the content in perpetuity. Obviously, Derrick did not oblige. Bridge is already burned.

Don't let yourself be this brand. Get content usage rights from influencers.

So how do you go about doing this the right way?

How To Ask Content Creators for Usage Rights to the UGC About Your Brand

First things first, you need to follow up with every influencer, asking for usage rights to their content to be able to repurpose across your own distribution channels, especially for Facebook or Instagram ads.

You might ask: "But how and what should I say to get content usage rights from influencers when they post about my brand?" Use the message below verbatim.

"Hey X! We're so glad you loved our product so much so you were willing to share this content with your audience. We'd love to be able to share this content with our audiences as well! Could we have the rights to use this content on organic and paid social for 30 days?"

Some tips for your content rights "ask"

• Ask for only 30-day usage rights. This is much less of an aggressive ask in comparison to asking for full ownership and lends itself incredibly well to getting such usage rights 9/10 times. More importantly, 30 days is plenty of time to test content within your paid efforts.
• Once the influencer content shows success and the 30 days are up, go back to the influencer letting them know how much you appreciate them and offer them compensation to own that content in perpetuity.
• If this influencer has 150K followers or less, offer them no more than $500. If you're really looking for a deal, begin by offering them and anchoring yourself at $150. You'll never have to pay more than $500 and after 30 days in paid ads you've made FAR MORE than this.

Worth mentioning, this method is not only applicable to just influencers posting about your product organically but anyone posting UGC that you'd want to be able to use within your paid social efforts.

So every time someone tags you on social, be sure to follow up with them in this way — whether they are an influencer or just a great UGC creator.

Content is king and you want as much of it at your disposal as possible.

Documenting consent to use content

The default rule in the absence of any kind of contract is that when someone creates the content, they own all the rights to that piece of content. But this default rule can be changed through something like an influencer agreement or rights request contract.

Let's take a look at some of the issues you'll have to think about — including what rights you're actually obtaining and what you're really negotiating for.

Negotiating license terms to use the content

Sometimes a brand will want to own all the content the influencer owns outright. A lot of influencers will push back on that and want to keep ownership rights, but they will grant some kind of license to the brand.

So you want to be careful, and think carefully, about what that license actually grants you.

Ask questions like: "Where can I use the content the influencer creates? On what platforms can I combine it? How long can I run that content for?"

These are some examples of what you should think about when you're drafting the usage rights as part of that agreement.

Doing this will help you avoid some kind of of dispute over copyrights or other intellectual property down the track.

Publicity rights

An issue that is related to usage rights has to do with the right of publicity. You want to make sure that there is a publicity rights release in your influencer agreement.

The right of publicity protects everyone from having their name, likeness or image used for a commercial purpose without their consent.

So if someone takes a picture of you and uses it in an ad without your permission, they have violated your publicity rights. Depending on where you live, these claims can be easy to bring and difficult to defend against, and expensive to defend.

So having a publicity rights release with your influencers is crucial.

User-generated content and Influencer-generated content can be powerful assets for your marketing campaigns. But without consent from the original copyright owner, it can quickly become a costly mistake.

The rule to remember is simple: if you didn't create it, you don't own it. If you want to use it, you have to ask for permission.

And if you are asking for permission, here is the exact wording again that works for us 9/10 times.

"Hey X! We're so glad you loved our product so much so you were willing to share this content with your audience. We'd love to be able to share this content with our audiences as well! Could we have the rights to use this content on organic and paid social for 30 days?"

The irony of this topic is that we need to put in our own little disclaimer: The content of this article is intended to provide a general guide to the subject matter of user-generated content rights. Make sure you get specialist advice from an attorney if you need it for your own circumstances.