Content creators · Macro influencers · Creators with Merch or Licensing Deals
At 150K-200K+ followers, you’re not just a creator anymore, you’re a brand. This is not exclusive to just macro-influencers either. Creators with followings as low as 10K-15K+ can create meaningful income that justifies intellectual property and brand protection. Your brand, your content, your handle, and your likeness all have real commercial value. So does your audience – you’ve built your audience, now it’s time to protect the brand behind it. As an influencer, their collective value represents both the intrinsic and extrinsic worth of your brand. As that brand value grows, so does its risk of being copied or outright stolen from. That loss can exponentiate if your brand isn’t well protected! In addition to recommending trademark protection for content creators and influencers, we also advise on a 360 strategy to how you view your intellectual property protection.
Most creators don’t think about trademark protection and how it can help protect them against duplicate accounts or counterfeiters. As famous actor Matthew McConaughey demonstrated recently, people can even protect their voices when it comes to famous phrases. While creators naturally tend to have more awareness for copyright protections, they should recognize that there are a multitude of ways that they can or need to protect themselves. Confusing trademark protection with copyright protection is one place where this happens a lot, especially if several different forms of IP protection exist within the same work. It’s helpful as a influencer to familiarize yourself with the various forms of intellectual property protection and which ones are relevant to you as an individual creator.
Here are a few protections that apply to creators at every level — and per usual, the more proactive you are about identifying and protecting what you’ve built, the more value you’ll save and create in the long run.
Your name and handle as IP, what else?
The name you post under — whether it’s your legal name, a stage name, or a creative handle you’ve decided on — has inherent publicity rights attached to it. Those are the rights associated with your economic interests in your name, performances, and personal brand. If someone is impersonating you via your handle, they are infringing on your publicity rights.
There is no direct federal registration for publicity rights. They’re often protected at the state level, and even then, the offense needs to be a certain degree of severity for it to rise to a lawsuit-worthy level. This is where platform authentication services (like Instagram’s blue checkmark system) are helpful. Since platform policies and the enforcement it provides are your first line of defense, having authentication can boost your claims if you ever have an issue. The platform will acknowledge your authentication over fake accounts and this function as a publicity rights brand protection within the platform. The authority is platform-dependent though, so there is at least one serious drawback.
Even though publicity rights cases are often made through state law claims, if they meet the threshold jurisdictional requirements, they can also be tried in federal court. If you can’t establish federal subject matter jurisdiction, then your options will depend on where you live. States like California and New York, with their long histories as entertainment industry hubs, have more favorable publicity rights laws.
The best IP protection is often layered protection which creates multiple mechanisms for enforcement. Your ability to protect your rights is strongest when you have all of these applicable protections in place. For many creators, that includes trademark protection and performance releases and waivers. When you’re able to show proof of these protections, your ability to deter infringers and enforce your rights gets significantly stronger. The best-case scenario is when all the applicable IP you have is registered federally and all protective measures are signed and archived. If this can’t be done all at once, review your available common law protections – protection that doesn’t require registration – and create a plan that prioritizes protection in order of importance. Like an insurance policy, some protection is better than none.
If your name or handle could also be considered a commercial identifier — anything where the audience’s trust in your name and your recommendations drives the sale of a good or service — you may be eligible for trademark protection. Trademark protection holistically has a lot of value in social media spaces because it can often extend to protect brand-related elements like social media handles, affiliate links, and other merchandise. A federal trademark registration creates a legal foundation supporting your brand and extends the reach of its protection to anywhere your trademark is used. When that trademark is your actual name or handle, this protection extends to your integrity and reputation as an individual. While it’s not an available protection for every creator, it’s a good place to start an analysis for whether your name and handle are eligible for federal registration. Because creators with established audiences are often targeted by bad actors, a trademark registration can be a valuable asset.
Merchandising and Trademark Registration
The moment you put your name, logo, or catchphrase on a product — a hoodie, a phone case, a supplement, an online course — you’ve created a use-in-commerce scenario that could justify trademark protection. If you are putting your personal name or brand name on merchandise, or you’re creating subsidiary brands through your content creation, there’s real value in trademark registration. As early as you can, you’ll also want to screen for identical or similar brands in the marketplace. As a personal brand, a search of your name is helpful to evaluate your SEO search results and to screen for other people who might share your name. In some cases, there’s plenty of space for co-existence with that person, but in others, if there would be brand confusion, it will require you to consider the proper brand strategy moving forward — as difficult as that may be.
If you are merchandising goods or developing multiple partnerships across verticals, having your brand protections in place is really valuable. When your likeness or logo are being used to help generate revenue through sales or sponsorship, it has real economic value which then makes it attractive for misuse or misappropriation. When that happens, you want to be able to enforce your IP rights through your agreements. Your affiliate partners prefer to see your IP protections are in place as well since it affords them the same assurances about the integrity and reputation of your brand. When you as the creator are the brand or logo, then it becomes about your own personal integrity and reputation. From that perspective, there’s a lot of incentive to take trademark protection seriously.
Trademark protection also gives you the legal right to help stop or slow down economic losses from fake accounts or deepfakes. If losses on any of your agreements have the potential to add up quickly, it’s imperative you have this protection in place already. If you are witnessing other influencers or creators in your field or in the news facing certain issues, protect yourself against similar outcomes as soon as possible.
A registered trademark also signals that your brand is professionally managed and protected. When a brand approaches you about a collab, a product line, or a licensing deal, it’s an important assurance to provide them.
Brand deals implicate more than your name!
When a brand pays you to post in order to leverage your name and likeness, they’re licensing access to your audience through your identity. The agreement governing that deal often includes provisions about their access to that audience, and for how long.
Your publicity rights are your rights to control the commercial use of your name, image, voice, and persona. They’re implicated in brand deal agreements all the time and often exploited beyond what creators realize. Your usage rights can be licensed in ways that extend well beyond the original post — to repurposing content, using your likeness in ads, or associating your identity with the brand in marketing materials you never approved. Savvy brands will bundle all of these under one license fee without informing you that any or all of these can and should be negotiated as separate fees.
Understanding what you’re licensing in a brand deal, and making sure the license is clear on what you’ve actually agreed to, is a separate issue from trademark registration — but it’s equally important at your level. The deals are bigger, the usage rights are broader, and the commercial value of your identity is real enough that it needs to be protected in every agreement you sign.
Unlike many business agreements, influencer brand deals almost always invoke the publicity rights of the creator or influencer involved. If you think of those publicity rights as a commodity that appreciates over time, you’ll negotiate better value for yourself over the course of your deals.
When to start — don’t wait too long!
The most common thing I hear from creators who come in after a problem has already surfaced is that they thought about looking into it earlier. The trademark filing felt like something for later — after the next milestone, or after the merch line has launched.
You get the most value out of trademark protection the sooner you have a registration. Filing early establishes priority. Priority determines who wins when two similar marks end up in conflict — and the answer is almost always the one who filed first.
The audience you’ve built is your asset, and a trademark is part of the legal infrastructure that protects it from bad actors. One without the other may leave the most commercially valuable thing you own exposed.
At 200K+ followers, the brand deals are real, the merchandise opportunities are real, and the money is real — but the risk of someone else capitalizing on what you’ve built is real too. For creators, the first step is to perform an IP evaluation of your brand and your content. If you’re able to take care of all your protection needs at once, that sets you up for the most success — but at the least, you should come away with a plan and some groundwork for how to achieve it.
Trademark Protection for Content Creators and Influencers
CTA BLOCK Building a merch line, negotiating brand deals, or just realized your name and handle aren’t protected? An IP strategy conversation takes less time than you’d think — and costs far less than resolving a dispute after the fact.