In February 2021, SAG-AFTRA’s National Board voted to approve a new Influencer Agreement.  But, the announcement included few details, leaving many Brands and so-called Influencers to wonder what’s the deal?

To date, SAG-AFTRA has not released the actual long form agreement covering Influencers, but it has posted an Influencer Agreement Fact Sheet online here.  The Fact Sheet makes clear that, for now, the Influencer Agreement is extremely narrow in reach.  Indeed, it all but places the entire onus of documentation, compliance, and pension and health contributions solely on the Influencer.  Therefore, the Influencer Agreement will allow Influencers to earn union eligibility and make their own contributions toward their own benefits.  Here are the key points for Brands and Influencers to be aware of:
Continue Reading Brands And Influencers Need To Know About SAG-AFTRA’s New Influencer Agreement

To date, there are over 1 billion augmented reality (“AR”) users and 171 million virtual reality (“VR”) users worldwide[1], a number that continues to increase as more industries turn to AR and VR to create immersive user experiences. Companies are offering stand-alone experiences that integrate augmented reality and virtual reality at events, such as Samsung and Live Nation’s broadcast of a VR Coldplay concert, as well as through in-store location based applications to encourage a seamless “try before you buy” approach, like Gucci’s AR apparel and accessories try-on app. AR and VR are shaping the future of advertising and influencing our purchasing decisions. As a society with limited attention spans, these immersive experiences may be the answer to cultivating brand awareness and fostering consumer loyalty.
Continue Reading Is it Time to Make AR and VR a Part of Your Reality?

Khloe Kardashian is the latest Kardashian to find herself in court over her activities on social media. The youngest Kardashian sister was sued by a photographer for copyright infringement in Xposure Photos UK Ltd v Khloe Kardashian et al, 2:17-CV-3088 (C.D. Cal). Xposure alleges that Ms. Kardashian posted a photo it owned on her Instagram without permission and without the copyright attribution notice included on the original. For brands, celebrities, influencers, and others who use social media, particularly to make money or for promotion, this serves as a good reminder that all rights in any photographs, videos, and other content they post on social media must be cleared.
Continue Reading The Kardashians Can’t Keep up with Copyright Law


User generated content (“UGC”) has quickly come to dominate the current landscape of online promotions and marketing initiatives.  As UGC is generally made available for public viewing without prior screening, its growing prevalence raises liability concerns when the UGC contains third party references or materials.  Web site operators/promotion sponsors have broad protections under the Communications Decency Act (“CDA”) and the Digital Millennium Copyright Act (“DMCA”) against liability for infringing UGC, but that protection is not without limits.

Promotion sponsors often want the right to exploit certain UGC beyond posting it online in connection with the promotion.  For example, a sponsor may want to incorporate artwork created by entrants in an online contest in a print or television advertisement for a new product or service.  Similarly, video submissions entered into a contest tied to a motion picture’s theatrical release may make a great “extras” feature to include in the DVD release of the motion picture.  To secure such rights, the official rules for UGC promotions generally accord the promotion sponsor a broad grant of rights to further exploit UGC submissions or require a transfer of ownership in the UGC to the promotion sponsor upon posting.  These mechanisms enable the promotion sponsor to utilize the UGC more fully, if it so chooses, but these options also raise the question of whether a transfer of ownership in UGC affects the scope of protection offered to the promotion sponsor under the CDA and DMCA.
 Continue Reading User Generated Content Promotions: Balancing The Sponsor’s Rights Against Risks

Most major players in the promotions industry know that the so-called Cairns patent (U.S. Patent No. 6,173,267) is an online business method patent relating to online sweepstakes that involve unique codes.  Although it should be clearly understood that I am not a patent attorney (a highly-technical legal specialty), and this blog entry does not constitute legal advice and most certainly does not constitute a legal opinion of this firm, there are several steps that can be taken to potentially avoid at least one of the elements, or its equivalent, for each claim of the patent.Continue Reading Cairns Patent Once Again Provokes The Promotions Industry To Re-Evaluate Online Promotional Games