Legal Protection for Influencers and Creators

By Paul S. Rafelson, Founder, Rafelson Law PLLC

An influencer’s name, image, voice, handle and content are business assets, and the law protects each of them differently: the right of publicity (state law) for name and likeness, trademark law for the brand and copyright for the content. Rafelson Law helps creators protect those assets and negotiate brand deals and talent agreements. We also help creators license their reach on terms they control. We also draft influencer agreements for brands that work with creators.

What does a creator actually own?

Asset	Main source of protection	Where to read more
Name, face, voice and likeness	State right-of-publicity laws, and false-endorsement claims under the Lanham Act	Protecting your name, image and likeness
Creator name, handle, logo and merchandise brand	Trademark law, based on use and strengthened by registration	Trademarking your name and brand
Photos, videos, posts, captions and designs	Copyright, which belongs to whoever made the photo or video unless a signed assignment or a qualifying work-for-hire agreement says otherwise	Copyright in your content
Brand deals and representation	Contracts and the FTC’s endorsement rules	Brand deals and talent agreements
Reach and audience	Licenses of the assets above, on terms the creator controls	Monetizing your reach through IP

What problems do creators run into?

Someone uses their image or voice in an ad or on a product without permission.
A brand deal takes more than the creator intended: broad usage rights, long exclusivity or content the brand can use forever.
Someone else registers or uses their name or handle for goods or services.
A photographer, editor or agency owns the creator’s own content because nothing was signed.
Disclosure mistakes that put both the creator and the brand at risk under the FTC’s endorsement rules.
A licensing deal that weakens the creator’s brand, because the creator gave up control over quality or use.

How can we help?

Take inventory of the name, handles, content, existing contracts and any registrations.
Fix ownership: written assignments and licenses from the people who helped create the content, and the right entity holding the brand. See LLC and company formation.
Register what can be registered, starting with the brand name and logo.
Negotiate deals with usage, exclusivity and termination terms the creator can live with.
Enforce when someone takes an asset: platform reports, demand letters and, where needed, court. See demand letters.

What about brands that work with creators?

Brands also need clear influencer agreements: content approval, disclosure compliance, ownership and usage of the content and what happens when the campaign ends. See contracts for online businesses and the page on brand deals and talent agreements.

Where can I read more?

Our article How influencers can protect their likeness and monetize their social reach through IP walks through the same ideas in order.

How do I get started?

Contact us. Tell us about your name, the content and any deal or problem you have, and we will tell you whether we can help.

Paul Rafelson is admitted in Florida and New Jersey. Katie Dariano is admitted in New York. For a matter governed by another state’s law, or in another state’s courts, we bring in local counsel or seek admission as the rules require.

Realistic expectations

We cannot guarantee any particular outcome, that a platform removes content or that a trademark application is registered.
Right-of-publicity law is state law and varies, and platform terms change.
Laws, platform programs and their terms change; confirm current terms before acting.
Past results do not guarantee similar outcomes.

Frequently asked questions

What legal protections do influencers have for their name and image?

Two things. The state right of publicity limits commercial use of a person’s name or likeness without consent. False-endorsement claims under the Lanham Act add a federal claim. The rules vary by state. Trademark and copyright protect the brand and the content separately. We look at which protection fits the situation.

Do creators own the photos and videos they post?

Usually the person who creates the work owns the copyright, which means a creator owns what the creator shoots and edits personally. A photographer, editor or agency who creates content for the creator may own it unless there is a signed written assignment or a qualifying work-made-for-hire agreement.

Can I trademark my name or handle?

Yes, when you use it as a brand for specific goods or services. A personal name faces two extra hurdles: a surname refusal unless you show the public connects the name with your goods, and conflicts with others who share the name. Registration builds on use, and the right entity should own it. Our page on trademarking your name and brand covers the process and the issues.

What should I look for in a brand deal?

Check the deliverables, usage rights for the content (including paid use), exclusivity, approval rights, disclosure duties under the FTC’s rules, ownership of the content, term and termination and indemnity. A deal that takes too much can limit future deals and the creator’s control of their own brand.

Do you represent brands that work with influencers?

Yes. Brands need influencer agreements that cover approval, disclosure compliance, content ownership and usage and what happens after the campaign. We draft and review them for the brand’s side. See our contracts page and the page on brand deals and talent agreements for the terms involved.

Can you help if someone is using my likeness in an ad?

We review the use, where it appeared and your options: a platform report, a demand letter, negotiation or court. Right-of-publicity law is state law and varies, so the claim depends on where the person lives and where the use occurred. Preserve screenshots and links first.

Protecting your name, image and likeness

Right of publicity, false endorsement and impersonation.

Trademarking your name and brand

Brand names, handles and merchandise.

Brand deals and talent agreements

Deal terms and FTC disclosures.

Monetizing your reach through IP

Licensing without losing control.

Sources and notes

See the child pages for statutes, regulations and cases. FTC Endorsement Guides, 16 C.F.R. Part 255.

About the author

Paul S. Rafelson is the Founder of Rafelson Law PLLC, a law firm for eCommerce and online business owners. The firm’s practice focuses on Amazon account issues, eCommerce mergers and acquisitions, Proposition 65 and related corporate work. He holds an LL.M. in Taxation from NYU (2017). He founded the Online Merchants Guild in 2018, a volunteer-led trade association run by and for Amazon sellers. He taught state and local taxation as an adjunct professor at Pace Law School. Katherine (Katie) Dariano is a Senior Counsel at the firm. Full biography.

Background

Founder, Rafelson Law PLLC; office at 2255 Glades Rd, Suite 319A, Boca Raton, FL 33431.
Admitted to the bars of Florida (2005) and New Jersey (2006). Katherine Dariano is admitted in New York (2021).
LL.M. in Taxation, NYU (2017).
Before private practice, Paul was in-house counsel at Microsoft, Walmart and GE.
Paul founded the Online Merchants Guild in 2018, a volunteer-led trade association run by and for Amazon sellers. More on the Guild's About page.
Paul taught state and local taxation as an adjunct professor at Pace Law School.

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Rafelson Law PLLC · 2255 Glades Rd, Suite 319A, Boca Raton, FL 33431

Phone: (833) 326-6529 · Email: [email protected]

Informational only; not legal advice. Contacting us does not create an attorney-client relationship, which begins only with a signed written engagement. Please do not send confidential details until we confirm in writing that we represent you. If you face a deadline, say so in your first message.