OPINION: Nonini, Wakadinali suing influencers, brands over copyright a wake up call to creatives

A few weeks ago, rapper Nonini surprised many when he announced that he was suing a TV brand for infringing on his copyright by using his music to promote the brand. Last week, rap group Wakadinali also said they were suing another brand for the unauthorised use of their music in an influencer video promotion.

The two cases have brought to the fore the sensitive but largely ignored issue of copyright infringement that cuts through major brands, their advertising agencies and influencers.

So, what exactly is copyright law and why is it crucial?

In copyright law, there is the fair use doctrine, sometimes synonymously used with the term exceptions and limitations. This simply refers to circumstances under which the express permission of the rights holder need not be sought.

Some exceptions include (not exhaustive): education, research, parody, criticisms and review and personal use. However, when it comes to the digital space, there seems to be an increasingly large blurred line between personal use and endorsements/ promotion campaigns.

It is an intricate balance when one is an influencer or when an agency is engaging the services of an influencer.

Based on the Kenyan legal trends, we have been more sensitized to the image rights conversation and have observed such restriction clauses on influencer agreements.

However, on a copyright level, most of these contracts have been mum on the issue leaving a lot of assumptions to the unknowing influencers to test their various theories and push the creativity envelope.

In my view, most parties have not stopped to interrogate the legal ramifications of such actions which can easily be construed as copyright infringement.

Over the last couple of months, we have made observations of the increased use of local music to advertise products and services, especially through influencer marketing.

As alluded to, copyright law knowledge is still taken for granted by influencers. For a while, most local influencers have gotten away scot-free for using third-party copyright assets which include, but are not limited to; music, artwork, and for the most part, it has been assets belonging to international rights holders.

The assumption has been all is well because they have been lucky and escaped from the proverbial (legal) slap in the wrist. All has been “fine and dandy” until the rise of knowledgeable rights holders. Here we are now!

Local influencers shrugged their shoulders when they heard of stories of influencers in international markets getting sued. “In the Kenyan market? Who cares?”

It is now important for influencers to educate themselves about legal matters revolving around the influencing business. They need to understand what boundaries are provided under law and how far the envelope can be pushed while standing out as an influential creative.

Marketing agencies have also thrown caution to the wind and barely review or regulate the use of these campaigns by influencers and, in turn, the commissioning corporates too rely on the indemnification clause thinking they need not know what happens behind the scenes. The law is now catching up fast.

What is rather evident is that most corporates and agencies forget that they too could be liable through the Principal - Agency relationship.

Due diligence is something that has to be part of any corporate or agency structure. It is high time that all these parties consult IP counsel as they come up with some of their campaigns and engage influencers to assess and review their legal risks.

For the corporates with legal departments, stop treating the legal team as “flower girls!” All business fundamentals are anchored in law; the law is everywhere and the law is diverse.

It is time that influencers, advertising and marketing agencies and corporates stopped burying their heads in the sand and respect third-party rights in their quest for creative digital campaigns to boost sales and brand popularity.

The writer is Liz Lenjo, IP & Entertainment Law Expert Consultant and Founder MyIP Legal Studio