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Who owns the rights to your face? [mashable.com]:

Last year, I received an Instagram DM from someone I was friends with in college. It had been a couple years since we’d caught up: We lived in different cities, had pursued different careers and, of course, the pandemic had brought any plans of hanging out again to a standstill. I was surprised to see her name pop up on my screen but even more so by the contents of her message.

It was my face. Specifically, it was me in a sponsored Instagram Story ad, putting on a lip balm. In the video, I applied the balm and smiled at the camera, looking pleased with my newly moisturized lips. In real life, I was confused. I had never agreed to appear in a nationwide social campaign, otherwise my checking account would have a couple more zeroes to show for it. I worked in the media industry then, sourcing the right influencers to participate in sponsored articles. I’ve spent years casting with talent, negotiating contracts to ensure fair compensation and modest usage rights [bloglovin.com] for influencers, models, and real people. Based on my experience, it was clear that my image was being exploited by a multibillion dollar brand.

Usage rights dictate who owns an image or asset, exactly how, where it’s allowed to appear, and for how long: A video is pricier than a photo, one month costs more than one year, and you’d charge a global brand much more than what you’d charge a growing business. Depending on the talent, the scale of the client, and the length of the campaign, standard licensing of images on social media alone can cost anywhere from $250 to $20,000. [entrepreneur.com]

Despite this, anyone who has worked at a media company will tell you that employees are often pressured to serve as a stand-in or supplement to these influencers. However, these campaigns are not a part of the full-time job and likely go uncompensated.

I’d been laid off from my position at one of these companies and out of its physical office for over a year. Studios everywhere had rightfully shut down to halt the spread of COVID-19, and clients were canceling their campaigns, citing a lack of fresh content to promote their latest products. But the top of my phone screen attributed the Instagram ad to an international skin care conglomerate, and I immediately knew where it came from.

It was shot pre-pandemic, where I had been told to participate in a photoshoot demonstrating the product’s healing benefits. Despite the shoot taking up the entirety of my work day, I was not paid, and the campaign itself was only supposed to run on my then employer’s social media accounts for a few months. Since my colleague, who lives hundreds of miles away, was seeing this video over a year later, it’s likely that my former employer passed this content to the skin care giant directly and allowed them to continue using my face without my permission.

SEE ALSO: Why absolutely everyone should be concerned about facial recognition [mashable.com]

I don’t have a large social media presence or a notable platform but, even as a regular person, thousands of dollars can be tallied up in lost compensation. Unfortunately, my participation in the campaign was undocumented, so when I considered the blurred lines that come along with being an employee in the media industry, pursuing further action was not worth the trouble. However, as the shape of culture and technology continues to evolve, such exploitation of people and the images we create will only grow if we lack the information needed to prevent it.

Generally speaking, we hold the copyright to any content we upload to social media platforms. However, when we create our accounts, we agree to grant those platforms a free license to use our content as they wish [copyrightlaws.com]. Twitter's recent ad campaigns [theverge.com] are a perfect example: the everyday thoughts of regular people are what fuel the platform, and the decision to feature those tweets in marketing has been widely applauded. But as a Twitter user myself, spotting my own words on the train ride home [twitter.com] would feel great, until I remember that one month of subway ads can cost up to $75,000 [bluelinemedia.com]. But, based on the terms and conditions I agreed to, none of that money has to make its way to me.

Our content is even more valuable to brands, who are slowly narrowing in on the average social media user. Where large companies were once funneling most of their influencer marketing budget into one or two macro influencers with 500,000 followers or more, companies like HelloFresh [fastcompany.com] and Canon [adweek.com] are now prioritizing the niche audiences of micro- and nano-creators. Research shows [emarketer.com] that shoppers find smaller creators “more authentic” and brands have identified those creators as “less costly,” making regular people a win-win for boosting sales.

Based on the terms and conditions I agreed to, none of that money has to make its way to me.

As the preferred audience size continues to shrink, it is paramount to understand the financial risks associated with creating on a public profile. “If you're a local bartender, and your image is associated with a spirits brand for an extended period of time,” Lauren McGrath, founder of talent and influencer consultancy, Novel Projects, shared as an example. “Whether you have 500 or 500,000 followers, that alignment will absolutely have an impact on what you can and cannot do with a brand or future employer.”

As a model, Hannah Ann Sluss was used to having her photo taken. However, those images became much more valuable after she won Season 24 of ABC’s long-running dating series, The Bachelor, in January of last year. In a 2021 lawsuit against Procter & Gamble [bloomberglaw.com], Sluss alleges that the consumer goods giant latched onto her newfound nationwide popularity by affixing a stock photo of her onto several unapproved Downy products until July 2020, even though the license for use expired in October 2019.

According to McGrath, a usage rights transgression of this scale can be costly. ”A couple years ago, a loss like this would come out to maybe a couple hundred dollars.” Citing the rapid evolution of the creator economy and the pricier arena of product merchandising, she states that “even if you’re not an influencer, your image and likeness can accrue thousands of dollars over a period of several years.”

Dance creators who have gone viral know this type of loss intimately. In the past two years, the impact of creators on the music industry has been undeniable, with 29 percent of new music being discovered on video or dance sites like TikTok [variety.com]. Unfortunately, recognition and compensation of those who shaped this growth lags behind, leaving creators like Keara Wilson, who created the mega-popular “Savage Dance,” and Young Deji, who created “The Woah,” especially under-supported.

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