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Creators vs. Brands: How to Get Influencer Endorsement (and Not Get Sued)

09 Aug

Written by Ilia, Head of Strategy at Zorka.Agency

TikTok is buzzing: Activision Blizzard, an S&P 500 video game publisher, has filed a lawsuit against popular blogger Anthony Fantano. The case involves memes, pizzas, and a brand allegedly using a blogger’s likeness to promote a product without his consent. If you’re more accustomed to this format by now, here’s a TikTok that explains the legal dispute.

For those who prefer the traditional approach, we’ll break it down step by step. This moment is also an excellent opportunity to discuss why brands — especially game developers — benefit from collaborating with content creators and how to do it correctly.

Activision vs. Anthony: What Happened

Let’s first arrange the events and content in chronological order:

  • In 2021, a pizzeria’s account posted a video featuring the continuous cutting of a pizza;
  • In the same year, Anthony Fantano, a popular music reviewer and content creator, reacted to the video on TikTok. The sound went viral, giving rise to a multitude of similar videos on the platform thereafter.
  • In 2023, Activision used the same sound in a TikTok (since deleted) to promote their game, Crash Bandicoot.
  • Upon discovering this, the creator purportedly issued a threat to sue the developer, seeking a “six-figure payment.”
  • In response, the company filed a lawsuit against the influencer, stating that their actions did not violate trademark and copyright laws, and that the creator’s likeness wasn’t used to promote a product.

Now that we’ve covered the basics, let’s delve into the heart of the matter: What are the rules for companies using creators’ and user-generated content? Can they do it? Should they pay for it? What are the benefits? With influencers ranging from A-list celebrities to overnight viral sensations, the answers to these questions vary.

One of the ways TikTok has changed the game is by enabling quick content creation using others’ text, visuals, or audio. While reaction videos have long been a staple on YouTube, the ease of sharing reactions and ‘duetting’ with others is unprecedented, and the rules regarding authorship are often unclear. Does anyone actually own memes?

Brands targeting Gen-Z and millennials, especially game developers, are acutely aware of this issue. In fact, mobile games piggybacking on existing intellectual properties have become a meme in themselves. For these companies, content creators and social media remain pivotal. While returns from influencer campaigns can be substantial, a misstep within the community can significantly damage a brand’s reputation.

Here are some points that brands should be cautious about when collaborating with influencers and leveraging their content for commercial purposes.

Content Created by Influencers vs. Content Featuring Influencers

Let’s differentiate between collaborating with influencers and using their content. Although the latter often stems from the former (brands purchase usage rights to content creators’ reactions to their product), these two are distinct media channels.

Companies leverage an influencer’s likeness to promote their products and achieve a more organic, higher-quality reach. Audiences are more inclined to not only try a product but also continue using it because they trust the individual endorsing it. This rationale underlies recent social media content, featuring “real-life” people “reviewing” products. E-commerce, clothing, and mobile games are among the top categories employing this strategy.

It’s crucial to emphasize the disparity between ads featuring bloggers and ads by bloggers. Acquiring ad space from a content creator — such as a post mentioning your product or a dedicated video — does not automatically grant the right to later use the content in paid advertising. This necessitates an additional agreement and exclusive usage rights.

While including influencers in paid media is already regarded skeptically by some, using their content without approval is unequivocally problematic. The situation might be murky with user-generated content and viral memes with untraceable owners. However, if you know the person whose video or audio you intend to use, you must approach them first and do so correctly.

How to Properly Collaborate With Influencers

At Zorka, we’ve highlighted key points that brands should adhere to:

Agree on every piece of content produced. In addition to the actual ad, influencers can provide a significant amount of additional reach. They usually have a strong following on multiple social media channels, and reposting the content can attract more viewers. However, it’s not guaranteed; if anything, creators typically attempt to draw less attention to videos with ads to avoid alienating their audience. If you want the blogger to repost your ad to generate more views, make sure to specify it in the brief and be prepared to review the associated costs.

Request ad content separately. As mentioned earlier, if you’ve asked an influencer to review your product on their channel, you cannot use this content for paid ads without their explicit permission, and usually, an additional payment. If you intend to use a blogger’s video for your paid media, it’s advisable to request this specifically and add the purchase of exclusive rights to the contract.

Document all actions. A seemingly fundamental piece of advice that cannot be stressed enough: rely solely on written contracts and insertion orders, not verbal agreements. While campaign details may change, such as brand offers or influencer scheduling, the volume of content produced and the compensation offered should be clearly defined to prevent future conflicts.

To conclude, it’s fitting to mention another lawsuit — this one initiated by a content creator. Mr. Beast, one of the world’s most followed YouTubers, sued his food delivery partner for selling “inedible” burgers under his name. He claimed that this damaged his reputation. While bloggers branching out into branding and merchandise is not new, few are willing to associate themselves with subpar products. Successful influencers avoid low-quality ventures, even if they could bring in income.

Together with similar cases, this illustrates the significant shift in dynamics between ad buyers and creators over recent years. Influencers have mastered the conversion of followers into an engaged audience, turning their digital presence into genuine media presence. Brands should start viewing them as equal partners rather than just marketing channels.