Thanks to promotion and sponsorship deals, becoming a popular content creator on social media platforms, like Instagram, TikTok and YouTube, is big business. Creators, doing everything from dancing, to singing, to telling jokes or catching baseballs, can make thousands of dollars per month — or what would be a comfortable living for most of us.
But social media stardom can also be kind of a legal morass. Similar to the situation for any entertainer, there are contracts, sometimes agents, and myriad potential liabilities to deal with, such as intellectual property rights.
Content creators also have another layer of concerns. Unlike traditional creative types like actors and musicians, they must be fully self-sustaining businesses, responsible for everything from conceiving material, to distribution, to monetization. That’s all quite a bit to take on, especially for someone in their teens or early 20s.
Fear not, where legal needs and potential revenue sources exist, specialized legal practices will soon follow. Many lawyers, often with backgrounds in entertainment or contract law, have now developed practices focusing on the social media creator market.
Two top lawyers in that field, Anita K. Sharma, founder and managing partner of Brooklyn-based Sharma Law PLLC, and Marcie Cleary, partner at Frankfurt Kurnit Klein & Selz, offered us their perspective on the issues that frequently come up in their line of work and how they tackle them.
Clarifying who owns what
“The most interesting legal issue that comes up when representing digital and social media influencers is ownership,” said Cleary, who represents podcasters, influencers, as well as athletes and actors who have transitioned into being social media creators. In traditional entertainment, “the default is that the buyer owns all rights to the content, including the underlying [intellectual property].”
When it comes to social media influencers, however, “content is owned by the creator,” she said. “A brand or agency may pay the creator to include references to the brand in the content, but I will negotiate for my clients so that the creator owns the content.”
“That opens up opportunities for the creator so that they may use the format, the concepts, the jokes, or themes for other projects...such as television opportunities or other derivative projects,” she said.
Making sure creators are paid for the value they add
How much should a social media post be worth to a brand? The number of followers a creator has is certainly a big factor, Cleary explains, but there are other important components to that calculation as well.
“It's also the niche and who is following you,” she told us. “So for example, I represent an influencer, who has a large following of plus-size women. And so even though she may not have the Kardashian numbers, the brands are very interested in working with her because her followers are a very niche, specific audience. They listen to her and trust her opinion about different products and different brands.”
Those issues come into play in contract negotiations, she said.
“Typically, what happens when you're negotiating the deals, is [you’re] just trying to figure out how much you're going to deliver, how much you're going to get paid. And if there's any conflict. What's the value of the services that you're providing? What's your exclusivity to those brands?”
The challenge of running a business while also creating
“Our clients are building businesses,” said Sharma, who started out representing indie filmmakers before switching around 2013 to handling mostly YouTubers and other creators. “What’s unique about that, versus like traditional talent, like an actor, or a musician who’s very focused on one thing...with our clients, they’re doing a whole bunch of things, right? So their legal needs vary widely, from forming business entities to taking equity in companies in exchange for services. They’re writing books, they’re doing some acting and hosting giges here and there, and they’re doing a lot of brand and sponsorship deals.”
“They're doing co-branding deals, licensing deals,” she added. “I mean, you know, deals with social media platforms in China. I mean, it's the whole gamut right?”
For that reason, one of the qualities that Sharma looks for in clients is the ability to branch out and turn their content and personal brand into a business.
“I think they recognize that their social media shelf life may be short, and now's the time to strike while the iron is hot, and sort of expand into different areas,” she said. “If they get tired of social media, for whatever reason, they can turn to these other things.”
Power from the masses -- and perils of cancel culture
What Sharma said she loved about transitioning from representing mostly indie filmmakers to social media creators was that “all of a sudden, my clients had a ton of leverage.”
In the case of filmmakers, “You had to get past the gatekeepers to have your stuff shown anywhere.” On platforms like YouTube and Facebook, creators “were building their own audiences,” she said. “They didn’t need anyone’s permission to do that.”
But what direct connection with the public giveth, it can also taketh away. If an insensitive post goes viral, a creator can swiftly lose their audience, and end up with their account suspended. Sharma says none of her clients have had the worst happen so far, but it is a risk she is concerned about.
“It’s heartbreaking because we are living in a world of this cancel culture where people are not afforded any kind of opportunity for apologies,” she said. “You know, if somebody had done something legitimately wrong, or racist, or homophobic, or sexist, or anything along those lines, they should absolutely, you know apologize. There should be accountability.”
“But I think you’re just seeing people canceled even if there is a hint of some kind of impropriety,” she added. “It’s emotionally exhausting, you know, when you see these types of things happening to good people. They might have said something stupid in their youth, as we all did, and they’re not given a chance to explain or apologize or make up for that — they’re just immediately canceled and, like, no brands will work with them.”
So far, Sharma hasn’t found a way to get people “uncanceled,” but “I'm kind of following what Chrissy Teigan has been doing,” she said.