The creator’s greatest asset, often more valuable than any single video, is their personal brand: their name, voice, signature look, and unique style. This is protected by the overlapping areas of trademark law and the right of publicity.

A trademark protects your brand, source, and identity. For example, your podcast title, your logo, or your unique clothing line name. Even if you haven’t registered the trademark with the USPTO or your state, you do have some common law trademark rights. They’re just pretty weak. Registration with the USPTO, when it’s possible, and it’s not always possible, gives you the most enforcement rights and the ability to maximize a judgment against an infringer.

The right of publicity is a state-based right that gives every person, especially celebrities and influencers, the right to control the commercial use of their name, likeness, image, voice, and other identifying characteristics. Now, it doesn’t usually provide any protection for news, parodies, or public interest use. Since it is dependent on state laws, the exact rights vary from state to state.

Here’s the contract trap:

If an influencer contract is too broad, it might grant the brand rights that undermine the influencer’s own brand. For example, the contract might allow the brand to exclusively edit the content in a way that damages the influencer’s reputation or give the brand the right to use the influencer’s name or likeness in unrelated future marketing materials, without a separate fee or review by the influencer.

An influencer successfully suing a brand specifically for misappropriating the influencer’s own trademarked catchphrase or brand name and passing it off as their own is still an evolving area.

While people often think that trademark law just covers words and symbols, trademark law also protects trade dress, which is about the overall commercial image or total look of a product or service. The classic Coca-Cola bottle shape is a great example of trade dress.

For creative entrepreneurs, the unique aesthetic of the brand is a critical asset that must be protected, often requiring registration of copyrights and trademarks and the strategic use of trade dress law.