The Content Your Influencer Made Isn't Yours: Unless the Contract Says So
A brand pays a creator four figures for three Reels, the posts perform, and the marketing team drops the best one into a paid campaign and onto the homepage. Nobody did anything wrong on purpose. The brand assumed that paying for content meant owning it. It rarely does, and that assumption is what brings these files to Braslow Legal, usually after a creator's manager sends a takedown demand or a competitor runs the same footage.
Who owns a post the creator made for your brand?
The creator does, by default. Copyright belongs to the author the moment the work is fixed in a tangible form, and for an influencer video the author is the person who shot and edited it, not the company that paid for it.
That default sits in 17 U.S.C. § 201(a). Payment alone transfers nothing. A brand that pays an invoice receives the video file and an implied permission to use it as the parties clearly contemplated, which a court will read narrowly. Homepage placement and paid media are not what anyone contemplated when the deal was three organic posts.
Isn't influencer content a work made for hire?
Almost never, unless the creator is your W-2 employee. The work-made-for-hire doctrine covers work by employees within the scope of employment, or commissioned work that falls into one of nine specific statutory categories and is covered by a signed written agreement calling it a work for hire.
Those nine categories are narrow: contributions to a collective work, parts of a motion picture or other audiovisual work, translations, supplementary works, compilations, instructional texts, tests, answer material, and atlases. A standalone TikTok or a set of product photos from an independent contractor generally fits none of them, and labeling the agreement "work for hire" does not fix a work that is not eligible.
What actually transfers ownership
A written assignment signed by the creator. Section 204(a) requires any transfer of copyright ownership to be in a signed writing, which means an email thread confirming rates will not carry it. Note that authors can terminate assignments after 35 years on advance notice, an exemption that does not apply to true works made for hire.
Does a perpetual, worldwide license mean the content is yours?
No. A license is permission to use; ownership is the right to control and to stop others. A creator who grants you a perpetual, worldwide, royalty free license can still grant the same rights to your direct competitor next quarter unless the agreement says the license is exclusive.
Read the usage terms as three separate dials. Term is how long you may run it, and paid social rights are commonly granted in windows of three to six months with renewal pricing set in advance. Media is where it can run, and organic feed rights do not cover paid amplification, out of home, retail displays, or connected TV. Exclusivity is whether the creator may work with competing brands, in what category, and for how long.
Can you keep using the creator's face after the campaign ends?
Only if the release covers it. Copyright in the video and the creator's right to control commercial use of their name, image, and voice are two different rights, and an assignment of one does not carry the other.
Florida addresses this by statute. Section 540.08 requires express written consent before using a person's name or likeness for commercial or advertising purposes and gives the person a cause of action. New Jersey protects the same interest through common law rather than a statute, so a brand running in both states should draft to the Florida writing requirement as the baseline.
Why the music on that video can still cost you
Because the creator's platform license does not extend to your brand. In-app music libraries authorize personal, non-commercial use, and a commercial track cleared for a creator's organic post is not cleared for a brand account, a paid ad, or a whitelisted version of the same video.
Running it commercially generally requires two clearances: a synchronization license from the publisher for the composition and a master use license from the label for the recording. Boosting the creator's original post through branded content tools does not resolve it. Specify a commercially licensed track in the brief instead.
What Braslow Legal puts in a creator agreement
An assignment of copyright, signed by the creator, with a fallback exclusive license if assignment is refused
Defined term, media, territory, and exclusivity, each priced separately
A name and likeness release drafted to satisfy Florida's written consent requirement
A music and third-party materials warranty, plus a ban on unlicensed commercial tracks
FTC disclosure obligations, tied to the Endorsement Guides and the 2024 consumer reviews rule, with penalties now exceeding $50,000 per violation
Flow-down terms when an agency or production company sits between you and the creator
Paying for content and owning it are different transactions, and the gap only surfaces once the content becomes valuable. Braslow Legal works with brands, businesses, and creative ventures across Florida and New Jersey on creator agreements, licensing, and brand protection. Send your current influencer template through the contact form for review before the next campaign goes live.