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Influencer infringement: Protecting intellectual property online

From: Canadian Intellectual Property Office

In the eighth episode of Canadian IP Voices, the Canadian Intellectual Property Office's podcast series where we talk about intellectual property (IP), entertainment media lawyer Naomi Zener joins us to discuss how IP rights work to protect creators on social media. With billions of users worldwide, social media is used by almost everyone, yet very few understand how copyright and other IP protection functions in the online space. Naomi's interview sheds some light on how online content can be protected and clarifies some of the rules surrounding sharing posts and what copyright means for online creators.

To illustrate the points made in the podcast, let's follow the fictional example of Nathaniel Branson. Nathaniel is a fourth year university student studying geology and earth science. He is a social media influencer who creates content for Instagram, YouTube, Facebook and Snapchat. Nathaniel's pages on these social media platforms have a sizable following, with posts normally getting upwards of tens of thousands of views and likes. He is known online as "Nathaniel the Nomad' and posts vlogs, commentary videos and other content on his pages.

A man sitting at a desk with his laptop, looking at his phone while it receives many notifications

At heart, Nathaniel is a creator. As such, he recognises the importance of protecting his creations. He knows that his IP is protected by copyright the moment it's created, but also knows that being an online personality could create some IP dilemmas. Recently, a few of Nathaniel's vlogs went viral, and this presented some interesting IP protection situations.

Because this vlog went viral, many news channels wanted to show and discuss the video on their news programs. These companies reached out to Nathaniel before using any of his content because they knew that even though his content was posted to social media sites, that did not mean that it was in the public domain. These companies asked for Nathaniel's permission before sharing his work so that they would not infringe on his copyright.

Nathaniel also creates commentary videos, meaning he films himself reacting and commenting on other people's IP. Because of this, Nathaniel hired an entertainment media lawyer to review his content before he posts it online to check for infringement of copyright and advise on the legality of the content he is creating. He normally relies on criticism, review and parody exceptions to copyright laws to do so, but he makes sure to always get the assistance of his copyright lawyer before posting anything that might infringe on someone else's IP.

Nathaniel also holds a trademark for the name "Nathaniel the Nomad", and he sells merchandise like hats, sweaters and t-shirts with this trademark on display. Recently, though, Nathaniel found that a third-party website was selling merchandise displaying the Nathaniel the Nomad trademark and making huge profits off of his likeness. He knows that he never licenced out this trademark and is going to talk to his lawyer about how to handle the situation. Unfortunately, this is a somewhat common occurrence for online creators.

Nathaniel is happy that he lives in a country with strong IP protections for work posted online. Through his venture into being a social media content creator, he has learned that the public domain is actually a very specific term and not just anything widely accessible to the public. He also knows that his work is protected by copyright and, with the help of his entertainment media lawyer, that he can easily protect himself from improper use of his content.

To learn more about IP rights in Canada and how they apply to social media posts, listen to the Canadian IP Voices podcast with Naomi Zener.

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