A Primer on Key Legal Issues for Digital Media and Content Creators

Introduction

Digital content creation is a high-growth industry in which independent filmmakers, social media influencers, streamers, and digital media companies must constantly navigate contracts, intellectual property rights issues, and platform terms and conditions. As their audiences and business grow, creators must gain an understanding of the legal and contractual issues that affect them.

Content Ownership and Licensing

Ownership of a piece of media is always key. When content is commissioned or produced collaboratively, it is not always obvious who ultimately owns the finished product or the materials used to create it.

For example, if you are commissioned to create a short film or other piece of digital content, who owns the finished product once it is delivered? What about the footage you captured that was not used in the final edit? Do any rights come back to you if your client decides not to release the film? What rights are granted to the platforms that host the film? If you won’t own the final product, what license do you have to use it in your own portfolio or for self-promotion on social media?

Outside of your relationship with your client, are any third-party rights implicated? Have you ensured that you have the right to use any music or stock footage included in the film? Separately, does your use of or discussion of any particular individual expose you to defamation or other similar liability? Do you need a waiver form for your activities in public?

These issues are typically addressed, at least in part, in production contracts and licensing agreements. Even where you can’t negotiate the terms and conditions imposed by media giants like YouTube and Twitch, your growth and success depend on understanding what you are agreeing to. The same applies if you’re marketing or hosting content you’ve commissioned.

In any negotiation, you’re most empowered to protect your interests if you understand what rights you can reserve for yourself and the value of the rights you choose to grant.

Sponsorships and Endorsements

If you have built a substantial audience, you are likely to be approached for sponsorships and endorsements. Sponsorships may include advertising segments such as ad reads, while endorsements often involve product reviews, demonstrations, or unboxing videos. These engagements raise several contractual issues, one of the most important being the structure of compensation. Some offer a flat fee, while others pay per deliverable. In either scenario, you should consider what triggers a payment obligation. Are you paid for every deliverable you produce, or only for the content that the sponsor approves and publishes? How much discretion is involved in approval? If the agreement is terminated after you submit deliverables but before they are approved or released, are you still entitled to compensation?

How you produce the deliverables under a given contract may be controlled by your client. For example, you may be prohibited from speaking negatively about the product or the client, or you may be required to read from a script. You may also find restrictions on your ability to contract with a client’s competitors, which may significantly limit your revenue generation.

For endorsements specifically, you should also be mindful of applicable legal and ethical disclosure obligations. For example, the U.S. Federal Trade Commission requires certain disclosures in social media posts if you’re being compensated for reviewing or advertising a product. Failing to understand and abide by guidelines such as these may expose you to penalties and other legal liability.

Brand Management

For many creators, their personal brand is the core of their business. Maintaining and protecting that brand requires careful management of sponsorships, advertising relationships, and collaborations. At a basic level, you should consider whether certain products align with your brand identity.

On platforms that automatically place advertisements on hosted content, you may find advertisements for products such as alcohol, tobacco, or gambling attached to your content. If these products don’t align with your brand, then you should determine whether you can opt out of certain advertising categories. For example, YouTube allows creators to opt out of certain “sensitive” advertising categories. For podcasters joining a platform or working with an advertising go-between, being specific in your contract is critical.

At a contractual level, brand protection includes a variety of rights and obligations. Do you have a right to terminate a contract or back out of a sponsorship if the relationship becomes a threat to your brand? Have you signed a non-disparagement clause that affects your ability to do damage control? What happens if content you create is edited, distorted, or decontextualization in bad faith?

Conclusion

Digital media and content creation involve various, often overlapping, revenue streams. Each opportunity brings with it unique legal challenges. Growing your business requires understanding these challenges and navigating them skillfully.

At NOVA Business Law Group LLP, we help clients prepare and negotiate contracts and structure businesses in digital media, entertainment, and content creation industries. Whether you’re running a media company or operating as a social media personality, our team can advise you on every step of your journey.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Please consult an attorney to discuss your specific situation.

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