Oldham, Li & Nie | View firm profile
88% of Hong Kong population is using social media, and this number is growing every minute. It is no surprise that social media has become a lucrative business. Social media influencers (“Influencers”) or key opinion leaders (“KOLs”) are popular and powerful – they create tight bonds with their followers and have the ability to influence their perceptions of brands and hence their spending behaviours. As a result, they are now an important marketing channel for many local and foreign brands. Influencers partner with these brands and generate income by way of endorsement or other forms of support through their profiles on Instagram, WeChat, Facebook, YouTube, TikTok, and other social media networks.
Influencers and KOLs build up and grow their reputations and market values by creating original contents, where multiple intellectual property rights may subsist, that should be managed properly to preserve and maximize their values. At the same time, Influencers and KOLs may overlook the potential risk of infringing others’ intellectual property rights when creating their posts and articles given their contents often ride on photographs and videos officially released by the leading brands in the market which carry protectable intellectual property rights.
Why influencers and KOLs should be concerned about intellectual property rights (“IPR”) of themselves and others?
- Intellectual property rights infringements on the internet, unfortunately, are common. If trade mark and copyright are protected with registration, it is easier to enforce them in the event of a dispute, as compared to unregistered rights.
- Registration of intellectual property rights makes it clear to others that they are protected. This helps to avoid plagiarism – if other influencers know that the content is protected, they won’t in the first place replicate the content.
- Registered intellectual property rights give a social media account more credibility – followers and brands find the contents more trustworthy and risks free.
What types of intellectual property should influencers register?
Copyright protects the original influencer’s works of authorship: photographs, videos, posts, art, sound recordings, and other types of content. The social media influencer or KOL is the owner of the content that he / she creates, and can freely distribute, make copies and commercially exploit the original works. Others must get permission or license before using such copyrighted contents unless a legal based exception, such as “fair use”, applies.
In Hong Kong, it is not necessary to register a copyrighted work as the copyright subsisting therein automatically arises upon the creation of an original work. Having said that, from the perspective of enforcement, the social media influencer may wish to register or deposit a copyright work if it is of significant value in the event it is stolen by a third party.
Trademark is a design, logo, phrase or any graphic representation that differentiates one brand from the others in the marketplace. The personal name or nick name of the social media influencer or KOL is the brand name that should be property protected by trade mark registration to preserve and generate its value.
The website domain in itself does not carry an intellectual property right yet the domain name usually contains a word, a name or a phrase forming the brand name of the social media influencer or KOL which can be registered as a trade mark.
Intellectual property policies of different social media platforms
- Facebook: Intellectual Property policy
- Instagram: Intellectual Property policies
- TikTok – Intellectual Property policy
- Twitter – Trademark policy Copyright policy
- WeChat – Acceptable Use Policy
- YouTube – Copyright Centre
The future of protecting intellectual property on social media
To grow exposure and reputation, social media influencers or KOLs often create different types of original contents which are highly susceptible to legal risks. With the internet evolving at such a fast pace, we anticipate infringement of IP right in social media online platforms will increase taking new and more sophisticated forms. Hence, it is imperative for social media influencers and KOLs to be more cautious and proactive to protect their original works going forward. It should not be taken for granted that because nothing bad has happened so far and therefore they will be continue to be safe going forward.
It is also important to respect others’ IP rights and not to replicate others’ contents without prior permission.