Five intellectual property considerations for talent partnerships

In today’s rapidly evolving digital landscape, the intersection of technology and entertainment raises new challenges and opportunities in the realm of talent partnerships. With generative artificial intelligence’s growing role in content creation, advertisers are leveraging AI-driven tools to enhance their marketing strategies.

Brands are encouraged to consider the legal issues that come with leaning into developing trends related to talent campaigns, including complex intellectual property (IP) issues. In this article, we dive into five key IP considerations based on the current market and legal landscape.

1. AI and the right of publicity

Considerations

• Contract terms allowing for use of AI tools to replicate aspects of talent’s likeness, including for voiceovers, editing, and versions
  
  
• Licenses and permissions to use third-party content or another’s likeness to train AI tools for campaign materials
  
  
• Policies in place outlining brand practices for using AI tools to develop marketing assets

Why it’s important

AI has grown in popularity and is being used by many advertisers and agencies in numerous ways, including in the creation of marketing materials. AI-driven technology can create highly realistic yet misleading videos by altering or entirely replace a person’s face with someone else’s. This may involve training neural networks on large datasets of images to create a model that can superimpose or swap faces.

AI can also generate highly realistic digital avatars or digital doubles of individuals, which can be programmed to perform specific actions or speak in ways that mimic the original talent. In some cases, celebrity talent might be open to using AI to finalize assets – for example, in the event they are faced with a packed calendar but the brand needs to rerecord voiceovers. These are just some examples of the ways AI can be used to develop or enhance brand campaign assets, each of which triggers various IP-related considerations that can be addressed in the agreement with talent.

Arguably the most important AI-related consideration in the context of talent campaigns is the right of publicity of the individual. There is clearly a growing regulatory scheme detailing the importance of informed consent and permission when developing AI generated replicas.

For example, the NO FAKES Act was formally introduced to prevent a person or company from producing/distributing an unauthorized AI-generated replica of an individual to perform in an audiovisual or sound recording without the consent of the individual being replicated.[1]

Similarly, the ELVIS Act became the first legislation of its kind to update Tennessee law to include protections for songwriters, performers, and music industry professionals’ voices from the misuse of AI.[2]

Finally, the California Senate passed AB 2602, a bill that aims to prohibit contracts allowing the use of a digital replica of a performer’s likeness in place of in-person work, and AB 1836, a bill that requires consent for the use of dead performers’ likenesses for AI-created digital replicas. According to SAG AFTRA, the legislation is intended to supplement the protections included in last year’s television and theatrical contract negotiated with the AMPTP.

Brands planning to use AI to enhance their campaign materials are encouraged to carefully cover AI related terms in their agreements and obtain consents if replicating individuals through AI technology.

2. Content ownership

Considerations

• Contract terms covering ownership rights in brand-produced assets
  
  
• Whether talent-produced content should be owned by the brand, or by the talent and licensed for use by the brand
  
  
• Ownership rights in contributions made by talent partners

Why it’s important

Establishing ownership rights in content, including talent-created materials, is key in drafting and negotiating talent agreements.

Typically, brands own the content provided/produced by the brand, even including talent-created materials (ie, self-produced images/videos). It is more common in celebrity agreements for all materials to be owned by the brand, whereas partnerships with influencers when most (or all) of the assets are self-produced will give talent ownership of those assets, with a license (covering territory, usage term, media in which the assets can be used) to the brand.

Brands should also carefully consider ownership terms where all assets or deliverables will be self-produced (eg, a brand engages an influencer to create and post social media videos highlighting the brand’s latest product) due to certain state employment laws like those of California.

3. Use of third-party materials

Considerations

• Terms limiting talent’s use of third-party IP, including logos and products
  
  
• Contractual controls over incorporation of third-party materials after the fact, including use of music in social media posts
  
  
• Reviewing representations and indemnity obligations in connection with third-party IP infringement by the brand

Why it’s important

Both brands and talent may consider use of third-party materials in campaign assets. If a brand is producing content, materials are encouraged to be original or licensed for contemplated use, including logos, artwork, and music. This is not just about the brand on the t-shirt worn by talent, but also the sneaker on a background performer, visible tattoos, or graffiti along a streetscape. In instances where showing third-party IP is desired, the brand may consider obtaining necessary permissions, such as licenses.

If self-produced talent content includes someone other than talent and the brand uses the post as permitted by the agreement (eg, resharing on its social accounts), there are also right of publicity considerations.

Another concern that arises with respect to third-party rights is the use of music/sounds. Music libraries on social media platforms typically cover noncommercial use only (ie, not for advertising use). Thus, when using such music in a commercial context, without licensing the music, may give rise to a copyright infringement claim. Recently, labels have sued brands over use of music in social media advertisements without proper licenses, settling for large sums. It is best to approach social media content as if it is a commercial or similar asset – brands should seek the appropriate licenses from the music rightsholders.

4. Usage rights

Considerations

• Terms to cover where, when, and how a brand can use campaign assets and image and likeness of the talent
  
  
• Cover additional parties that may need a right to use the assets (affiliates, agencies, franchisees, retailers, and wholesalers)
  
  
• Rights to noncommercial uses and archival uses (eg, social media profiles) after expiration of usage term

Why it’s important

Even where the brand obtains full ownership over campaign materials, the value of that ownership is directly linked to the brand’s usage rights. This includes the duration, geographical reach, and media (eg, digital, print, broadcast) where the content can be used. For example, if talent’s likeness is used in certain paid media, the agreement may specify the compensation associated with such usage. Usage rights disputes may arise if the terms of the agreement are vague or overly broad and the parties disagree whether usage exceeds the scope of the rights. In addition, usage broader than that which is covered by your talent agreements can subject a brand to claims of contract breach or violation of the individual’s right of publicity, making it critical that the terms not only meet the brand’s needs, but are also adhered to. It is important to be specific about the usage rights in the agreement, and ensure that all brand partners (eg, retailers) understand the parameters around such usage.

5. Guardrails for talent

Considerations

• Limitations on talent’s rights in connection with the brand’s IP, with a limited license solely as needed for talent to perform their obligations
  
  
• Restrictions on talent’s ability to use campaign assets and brand IP following expiration of partnership
  
  
• Cover similar “dos” and “don’ts” in supplemental social media and content guidelines
  
  
• Ensure talent makes any required legal disclosures, such as those required by the FTC

Why it’s important

Where talent is self-producing content for a brand project, they would ideally receive a license to use brand property (eg, trademarks) for the content. The standard license would not confer any ownership to talent and would be limited in scope – solely to the term of the project, in specified media and territories, subject to brand instructions (eg, guidelines), and usually conditioned on brand approval. Prudent brands will require talent to adhere to their brand guidelines when using their trademarks, taglines, etc. in talent produced content.

Brands are also encouraged to require talent to disclose they have a relationship, or so-called material connection, with the brand/that the campaign is sponsored. Failure to properly disclose a material connection could lead to liability. FTC and many state unfair, deceptive, and abusive practice (UDAP) laws require influencers endorsing a product or service through social media state they have a material connection (eg, employment, financial) with the brand. Compliant disclosure should be conspicuous and easily understood by ordinary consumers.

Conclusion

There is a web of IP-related issues that come up with talent agreements. Historically common considerations, such as ownership and usage rights, are now met with emerging issues involving AI and third-party rights. By carefully negotiating and defining these terms, parties can navigate the complexities of content creation while ensuring that IP rights are respected.

For more information, please contact the authors. 

[1] Senators Coons, Blackburn, Klobuchar, Tillis introduce bill to protect individuals’ voices and likenesses from AI-generated replicas (July 31, 2024), https://www.coons.senate.gov/news/press-releases/senators-coons-blackburn-klobuchar-tillis-introduce-bill-to-protect-individuals-voices-and-likenesses-from-ai-generated-replicas.

[2] Tennessee First in the Nation to Address AI Impact on Music Industry (January 10, 2024), https://www.tn.gov/governor/news/2024/1/10/tennessee-first-in-the-nation-to-address-ai-impact-on-music-industry.html.