Comment: Black Mirror’s lessons for marketeers and influencers

Forbes Daniel Fletcher

Netflix series Black Mirror is back with a bang. Season six was supported by a national advertising campaign starring members of the public, as it echoed the storyline from its ‘Joan is Awful’ episode.

The first instalment of the new series saw the title character Joan become the unwitting lead in a TV show all about her life. She’d quite literally signed the rights away to her life after accepting the terms and conditions of fictional streaming platform Streamberry.

Joan had failed to read the small print – an action that seemed to strike a chord with many of the show’s fans. Search terms for ‘Netflix terms and conditions’ spiked by 2,100% after the episode aired – this could be, in part, due to Netflix’s recent crackdown on account sharing, which is ironic given the central theme of this episode.

I imagine many of us have quickly accepted Terms and Conditions (T&Cs), without reading what we’re agreeing to. After all, it can be more exciting to get access to the product or service being purchased, rather than letting reams and reams of small print delay matters.

That said, the episode does highlight the importance of always double-checking agreements before making a commitment, and especially for marketeers and influencers with more and more campaigns featuring used-generated content.

We’d always recommend getting a professional to structure and check any agreements for clauses relating to IP and image rights before an agreement is formally ratified. However, ahead of this stage, there are three main key points to look out for, whether you are part of a marketing team planning to utilise third party content, or an influencer capitalising on your reach and personal brand.

1) Ownership and usage

If you’re going to give the small print a cursory glance, look out for key words and terms such as ‘licence’ or ‘licencing agreement’, ‘permission’ and ‘rights managed’. These parts of the agreement will often outline who will have ownership of content – and this doesn’t always have to be the content creator – as well as how the content will be used. The latter may cover elements such as marketing channels and formats and presents an opportunity to consider limitations on usage. This is the chance for all parties to consider how their brands will be represented – in Joan’s case, she could have opted not to be the main star in a show about her life or restricted any TV coverage of her more private and personal affairs.

 

2) Approvals

Undoubtedly, marketeers and influencers will be all too familiar with getting their campaigns and content absolutely perfect. From finessing straplines to repositioning cameras and lights to capture a scroll-stopping photo or short video, it’s important that the final produced content delivers exactly what’s required and expected. All parties should ensure that the T&Cs explicitly outline the stages of approval and what constitutes final sign-off. Clearly agreeing this process can help avoid any surprises in terms of what is shown to the public. It’s also a chance to outline confidentiality clauses, as well as the erasing of content that isn’t used.
 

3) Termination

This is, perhaps, the most important part of T&Cs. From the outset, all parties need to be clear about what is deemed acceptable and unacceptable. This may cover the ability to meet deadlines, to produce a certain level of quality, appropriate behaviour and conduct, and limitations on other activities. For example, marketeers may not want influencers to represent or endorse conflicting brands during a campaign or to time-bar this activity for a defined period after a campaign has ended. The same may apply for influencers considering agreements with brands.
 

All these key areas share a theme of due diligence, and it’s well worth everyone properly researching the third parties they are aiming to work with, even before starting conversations. Thorough research will help pinpoint positives and negatives and help reduce the likelihood of surprises and disputes further down the line.

Daniel Fletcher is an IP specialist at Forbes Solicitors, an award-winning law firm with 11 offices across England. Forbes specialises in supporting SMEs, providing legal expertise in practice areas including litigation, commercial, intellectual property, corporate legal services, employment, insurance, commercial property, and individual services. Forbes holds the ISO9001 Quality Certification and in its recent assessment it was described as “exceptional.” The firm is ranked as a Legal 500 Top Tier Firm and a Chambers and Partners Leading firm Forbes is also a member of LawPact – the international association of independent business law firms – which supports the expansion of its national and global reach.

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