Update of May 31, 2023: influencers law
The influencer generally has a community on one or more social networks such as instagram, facebook, tiktok..
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Brands can ask him to comment on their products or services.
When is there an operation of an advertising nature? The intellectual property lawyer answers you
The practice of influencer is very framed as soon as it is identified as "advertising", that is to say when the influencer and the brand have concluded an agreement, and the weight of the brand is felt.
The Court of Cassation recalls that "the fact that this message was relayed by the intervention of an Internet user for his "network of friends" did not cause it to lose its advertising character" (Cas. 1st civ., July 3 2013, no. 12-22.633).
Advertising is subject to the requirements resulting from the misleading or aggressive commercial practices of Articles L. 121-1 and following of the Consumer Code, to the identification obligations provided for by the law for confidence in the digital economy (L. no. 2004-575, June 21, 2004, said LCEN) and the fight against hidden advertising, as far as the French market is concerned.
What are the rights at stake to consider in a contract with a brand? The intellectual property lawyer intervenes
The influencer of course has image rights.
But more generally he has a right to the protection of all the attributes of his personality, such as his surname and first name.
The brand essentially has a trademark right, allowing it to capitalize on the reputation of its product or service.
Other service providers have copyright, such as the photographer or the producer/director.
This right allows them to claim compensation against the exploitation of their work, in addition to the remuneration they may have received for the performance of their service.
All of these rights must therefore be subject to negotiation and a contract in order to avoid the risk of claims as much as possible.
The law aimed at regulating the commercial exploitation of the image of children under 16 on online platforms has been published (L. No. 2020-1266, Oct. 19, 2020).
The rules of the labor code are now applicable to them (art. L. 7124-1 et seq.), thus forcing parents to request individual authorization or approval from the administration.
The latter also have the obligation to invest part of their child's income with the Caisse des dépôts et consignations until they reach majority or are emancipated.(art. L.7124-9).
In all cases, a declaration must be made, beyond certain thresholds of duration or number of videos or income derived from their distribution. (L. no. 2020-1266, art. 3).
At the same time, video-sharing platforms are strongly encouraged, under the aegis of ARCOM, to adopt charters favoring the information of minors on the consequences of the dissemination of their image on their private life as well as on the psychological risks. and resulting legal (L. no. 2020-1266, art. 4 and 5).
The law gives children a right to digital oblivion that they can exercise alone without their parents (L. no. 2020-1266, art. 6).
What are the pitfalls to avoid when drafting and negotiating the contract with the brand? The intellectual property lawyer in Paris assists you
At the start of a partnership, we don't necessarily have all the cards in hand to negotiate as best and fairly as possible.
It is therefore appropriate to provide for a more or less flexible contract review clause, allowing a contracting party to withdraw, at least under such and such conditions.
It is also a question of avoiding contracts that are too long or written too small, or referring to general conditions, which are often tricky or unclear.
However, unclear contracts are open to interpretation. They are therefore a source of discussion, most often to the advantage of the economically stronger co-contractor.
Influencer Law
The proposed law aims to fight against organized gang scams and places influencers under commercial advertising law (Evin law, gaming and lotteries law, minors' law, financial investment law, pharmaceutical law, on alcohol, tobacco, food law, health, cosmetic surgery, counterfeits, etc.); specialized agents for the repression of fraud (DGCCRF) will monitor the sector, with sanctions of prohibition and closure. Penal sanctions are planned, in particular to sanction the use of retouched images; the job of agent for influencers who mediate with brands is regulated. Platform operators and social networks must be vigilant about their reporting mechanisms (LCEN law, DSA regulation).
(guide on tax, social and regulatory obligations: https://www.economie.gouv.fr/guide-bonne-conduite-influenceurs-createurs-contenu)
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