Written and Edited by Keziah Auma.

Over the last few years, social media has slowly become one of the primary medium for businesses and companies to advertise and market their products to consumers. Companies have resorted to using of social media, social media influencers, or digital content creators to promote their products and/or services to the public.

 

In engaging these influencers or content creators, companies enter into contracts that outline the duties and obligations of the parties involved. One of the primary issues that such agreements address, aside from payment, is the ownership and use of the content created. Such concerns constitute what is known as a content usage clause. This clause will form the crux of this article as it briefly examines its definition, significance, and legality.

Content Usage Clause and Its Importance

A Content Usage Clause is a provision that specifies the authorised users of the content, the permitted usage, and the duration of such usage. It is now a key feature in influencer/digital content creator agreements, regardless of whether the content creator is granting a license to a company to use their pre-made content or creating original content for the company. This is also applicable in instances when influencers are collaborating with each other.

Content usage clauses are crucial for establishing expectations and ensuring that content creators are adequately compensated for their work.

There are two types of content that may be created which can form the subject of a content usage clause, i.e., content that is eligible for copyright protection and content that is not eligible for copyright protection. In order to be eligible for copyright, a creation needs to satisfy the requirements for protection. It must qualify as a work, be original, created by a Kenyan national, and expressed in material form. Once eligible, the creator/owner is awarded certain rights under the law that they can exploit to the exclusion of others.

For content that is not eligible for copyright protection, content creators or influencers may rely on the law governing image rights to ensure that their interests are protected. This article, however, will specifically address such clauses with respect to content that is eligible for copyright protection.

Usage Rights under the Copyright Act of Kenya

Under the Copyright Act of 2001, a person who creates content that is eligible for copyright is granted rights to and over their creation. Economic rights are the rights that enable the creator of the work to commercially exploit their work, such as the right of reproduction, publishing, adaptation, distribution, and making it available. Moral rights, on the other hand, are rights that ensure that as the creator, you receive credit for coming up with the work, that your content is not distorted in a way that compromises the integrity of your creation.

As the creator of the work, you are allowed to commercially exploit your work for a specified period. For instance, the creator of a dramatic work has copyright protection for their lifetime plus 50 years after the year of their death. The creator of an audio-visual (film) work has a period of 50 years from the date their creation is first made available to the public or when it is first published.

It is the combination of all the above, i.e., economic rights, moral rights, and the time for exploitation that constitute what we are referring to as usage rights.

While the default position under the Copyright Act is that if you create or are responsible for a creation, you own it, this is not always the case. There are instances where, even though you created the work, you will not own it. Therefore, the economic rights mentioned earlier will not be available for use by you as the creator. These include employment situations and where one is hired or commissioned to create content. In such instances, the creator retains the authorship of the content/work and is entitled to moral rights, while the employer or hirer owns the content/work and is entitled to economic rights.

Content Usage Clause in Influencer Agreements

So, what does this mean for usage clauses in influencer contracts that are drafted in a way where the influencer assumes ownership of copyrighted content? Are they legal? Can they be enforced? No. It is important to note that when an influencer or content creator is hired to create content, they do not own any copyright in the work created. The content creator can claim authorship (creator-ship) of the work, but the hirer owns the copyright and therefore all the economic rights. Consequently, when attempting to draft a clause that aims to limit the duration for which an owner can use their copyright or the circumstances under which they can use the content, such a provision would conflict with the law. A usage clause drafted in such a manner will be unenforceable, even if the rest of the contract remains valid and binding. Including a usage clause framed in such a manner is pointless and does not help the content creator.

Is there some way to solve this? Yes, the foundation of every usage clause lies in the ownership of the copyright. The Copyright Act provides that while the ownership of any copyright in commissioned content is automatically transferred to the hirer, the parties can agree whether or not to exclude such a transfer or limit the transfer. Therefore, as a content creator or influencer, one can negotiate with the hirer to retain some of the economic rights. This would give the content creator the authority to dictate how long the content will be used, the extent to which the rights licensed or transferred will be used, as well as the context of use, etc.

Conclusion

Understanding the intricacies of copyright law and its relationship to the business of content creation is crucial for drafting a usage clause that effectively protects the interests of content creators and influencers. Equally important is understanding that while not all content may be eligible for copyright, this does not make the Usage Clause irrelevant in instances where the content is ineligible for copyright protection. One can still seek refuge under the law governing image rights in Kenya and craft the usage clause to reflect the protections offered under the relevant laws.

Disclaimer:  This blog article is purely meant for educational discussion of legal products and issues. It contains only general information about legal matters.It is not legal advice and should not be treated as such. You must not rely on the information on this website as an alternative to legal advice from your advocate/lawyer or other professional legal services provider. If you have any specific questions about any legal matter you should consult  your advocate/lawyer or other professional legal services provider.