What if the contract for your next big brand or marketing deal was actually a monster, and it just swallowed the rights to your best work?
Sometimes, what looks like a great influencer or marketing contract can hide a monstrous reality. Much like the eerie, compelling creatures from classic horror films, these contracts often have hidden claws in their clauses that can wound your business and intellectual property (IP).
Too many businesses and creators lose control of their most valuable assets, their brand and content, by overlooking a few critical legal clauses.
In this article (the written version of our Spellbinding IP episode), we’re confronting the “Contract from the Black Lagoon.” I’m not here to be a stuffy lawyer throwing legal jargon at you. I’m here to break down complex US legal issues into plain language, so you can focus on creating killer content while keeping your legal defenses airtight.
You’ll learn three essential legal traps in marketing: who truly owns the content, how to dodge crippling FTC fines, and how to protect your personal brand’s trademark.
It’s time to stop signing bad deals. Let’s dive in and battle that contract creature and the traps it sets to ensnare your business and IP!
Trap One: The Siren’s Copyright Song Luring Content Owners Astray
When a creator, influencer, or filmmaker produces a piece of content for a brand, such as a video, a custom song, a photo, or an edit, the key question is: Who owns the finished work?
The natural assumption is often that the person who paid for it (the brand) owns it, or that the person who created it (the influencer or marketing agency) owns it. The legal answer is far more specific and is rooted in US Copyright Law.
The Core Legal Mechanisms: License or Assignment vs Work Made for Hire
The law provides two main paths for a brand to obtain rights to content created by an independent contractor:
Copyright Assignment or License (Transfer of Ownership or Permission to Use)
This is the most common way ownership of copyright rights is handled between a business and an influencer or marketing agency. That relationship is defined by contract terms, and those terms include how copyright rights will be handled.
- Assignment is used when the creator initially owns the copyright but then transfers all ownership rights to the brand in a signed writing, such as a clause in the contract. In marketing service deals, while the creator is still the author, the ownership of the work is assigned through the terms in the service contract to the business who contracted with the marketing agency to have the work done.
- A license is used when the creator keeps ownership of the content but grants the other person or business permission to use it under specific conditions. In many influencer deals, the influencer is the default owner, and the brand is granted a broad license through the service contract to use the work created by the influencer. The contract may also include restrictions on how the influencer can use the content they own, in order to protect the reputation of the brand.
"Work Made for Hire" (Authorship and Ownership from the Start)
This is less common because the rules are strict. There are two ways copyrighted work can be a “work made for hire,” or “work for hire” as it’s more commonly known.
- Employment agreement. When someone is in an employer-employee relationship, and the work was created as part of the employee’s regular duties, it is a work for hire, and the employer is legally the author and the owner. The employee has no rights to it. If your business has a marketing department, the people in it are most likely employees. If you hire a marketing agency, the agency and its employees are almost never your
(It’s too much detail to go into whether someone is an employee in this post, but you can find that information in Circular 30 at copyright.gov. It’s a good idea to consult a copyright lawyer about this. A labor or employment lawyer will know the technical definition under state law, but copyright law looks at other issues to decide whether the creator is an employee or independent contractor.)
- Commissioned/ordered work. When work is ordered or commissioned by someone and it meets strict guidelines, it can be a work for hire. For an independent contractor’s work, or work from a marketing agency, to be legally considered a work made for hire, three things must be true:
- The parties must sign a written agreement,
- The written agreement must explicitly say it is a work made for hire, and
- The work must fall into one of nine specific categories defined in the Copyright Act (such as a contribution to an audiovisual work or a compilation); you can look at that Circular 30 at copyright.gov to see what all nine of those categories are.
If any of these requirements are missed, the work is not a work made for hire, and the creator is still the author, and ownership is decided by the contract.
The Horror Story of Overreaching Licenses and Unintended Assignments
The true horror happens when a contract is poorly drafted or poorly understood.
The Perpetual License Trap: For instance, an influencer thinks they are giving the brand permission to use a short TikTok video for one month, but the contract grants a “perpetual, royalty-free, worldwide license to use the content in any medium now known or later devised.” That creator has effectively given the brand the right to use that short clip forever, in any context (even print ads or television), without paying another dime.
The Missing Assignment Trap: Or consider a contract in which a business hires a marketing agency but that doesn’t have anything in it about assigning copyright ownership to the business. That means the business might not own its own marketing material and the agency may remain the owner. You can see how that could end up being a huge problem and lead to expensive legal battles over who really owns the material and who can use, change, or sell it. Would you want material made for your business to use also sold to some other business with just a few minor changes?
Trap Two: The Leviathan Grip of the FTC’s Rules About Transparency and Disclosures for Influencer Marketing
This trap for the unwary is more about consumer protection than about intellectual property, but it still touches on the truth behind the content. The consequences of getting the legal details about transparency and disclosure wrong can be terrifying. In this case they can include fines, class-action lawsuits, and the destruction of consumer trust.
The Core Legal Mechanism: The FTC Act and Endorsement Guides
The Federal Trade Commission (FTC) enforces the law that prohibits unfair and deceptive acts or practices, which includes misleading advertising.
The rule is simple: if there is a material connection between the brand and the endorser (the influencer), that connection must be clearly and conspicuously shown.
- A “material connection” is anything that might affect the weight or credibility of the endorsement: cash, free product, loans, or a family relationship.
- By law, it is permissible to pay an influencer to endorse your product. However, it is legally required to show that paid relationship.
The Horror Story of Hidden Hashtags
While some platforms have built-in disclosure tools, those aren’t always sufficient. The FTC’s focus is on whether the disclosure is clear and conspicuous.
The FTC’s focus is on whether the disclosure is clear and conspicuous. Legal mistakes that are considered a deceptive act include:
- Hiding the disclosure behind a “See More” link.
- Burying it in a block of 30 other hashtags.
- Using ambiguous terms like #collab or #partner.
Case Example: The FTC has taken law enforcement actions against individuals and brands like Lord & Taylor and the American Beverage Association and their influencers for non-disclosure. Class-action lawsuits filed this year against major brands such as Shein and Celsius and their influencers show that private plaintiffs are also targeting these issues, seeking massive damages if non-disclosure is proven to have misled consumers.
Key Takeaway for Both Brands and Creators: Always make your disclosure unambiguous and impossible to miss. Use clear terms like #Ad or #Sponsored at the very top of the caption or superimposed clearly on a video.
Trap Three: Protecting Your Brand, Name, Likeness, and Voice from the Reputational Whirlpool
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.
The Core Legal Principles: Trademark and Right of Publicity
- A trademark protects brand source and identity (e.g., your podcast title, your logo, 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 possible, gives you the most enforcement rights and the ability to maximize a judgement 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. 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.
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 extensively edit the content in a way that damages the influencer’s reputation.
- Give the brand the right to use the influencer’s name or likeness in unrelated future marketing materials without a separate fee or review.
Step Right Up to Learn a Horror Story of a Violation of the Right of Publicity
The right of publicity is why Tom Waits successfully sued Frito-Lay and its advertising agency Tracy-Locke Inc. for using a singer whose voice sounded exactly like his in a commercial for SalsaRio Doritos. Waits, who famously refused endorsements, won $375,000 in compensatory damages and an extra $2 million in punitive damages. The court noted that a voice is “as distinctive and personal as a face”.
For more details, please see the mini post on this topic later this week!
This Just In: Coca-Cola Sued Over Their Attempt to Cash In on Johnny Cash’s Vocal Style with an Impostor
Just last week, on November 25, 2025, as I was writing this, news broke that the John R. Cash Revocable Trust filed a lawsuit against The Coca-Cola Company regarding the right of publicity and Tennessee’s new ELVIS Act! Johnny Cash has one of the most legendary and distinctive voices in music history, one that is readily identifiable to listeners. The Trust, which owns the commercial rights to his voice and likeness, sued Coca-Cola over a 2025 college football advertisement campaign. The complaint alleges that Coca-Cola hired a Johnny Cash tribute singer (a “Sound-Alike Singer”) to record a song for the ad. The singer is a known Cash tribute performer (“the No. 1 Johnny Cash Tribute Show” per his website), which makes the similarity to the Waits case stronger.
For more details, please see my post on this topic from November 25, 2025.
The Deepfake End of The Lagoon
The unauthorized use of artificial intelligence to clone or duplicate a celebrity’s likeness, particularly their voice or image (often called a “deepfake” or “digital replica”), has led to a rapid, but fragmented, legal response. Because no single federal statute directly addresses this issue, the legal battle is being fought primarily under state-level right of publicity laws.
Tennessee, home to many entertainers, enacted the wonderfully named ELVIS Act (the Ensuring Likeness, Voice, and Image Security Act), which updated its right of publicity law to protect an individual’s voice from unauthorized AI simulation. Similarly, California has passed new legislation aimed at protecting digital likenesses of performers.
Federally, legislation like the proposed NO FAKES Act has been introduced in Congress to create a national, harmonized federal right of publicity that specifically covers digital replicas, but such efforts face complex challenges, including balancing creator protection against First Amendment free speech concerns.
In the courts, claims often combine state right of publicity laws with federal Lanham Act claims (for false endorsement/passing off) and breach of contract, highlighting that for now, the strongest protections are found in state statutes and precisely drafted contracts.
Key Takeaway for Creators
Do not let a contract give the brand the power to tarnish the goodwill you have built into your personal brand. Ensure any use of your name, likeness, or voice is strictly limited to the agreed-upon campaign and that your right to protect your reputation is preserved. Make sure there are explicit provisions about the use of AI to replicate your image, voice, etc.
Don't Face the Contract from the Black Lagoon and Its Slimy Pals Alone
Navigating brand partnerships doesn’t have to be terrifying.
If you are a small business hiring a marketing team or agency or using influencer marketing, or if you’re a creative entrepreneur signing your first (or twentieth) brand deal, remember this: the horror contracts are usually the ones you sign without a thorough review.
Having an attorney review these clauses, specifically the IP ownership, disclosure, indemnity, and right of publicity sections, is an investment that protects the commercial value of everything you’ve worked to create and makes it clear who has the rights to what going forward.
The contracts are often the only thing standing between a profitable collaboration and a legal nightmare.
Intellectual property is one of the most terrifyingly useful tools you have. If you’re a creator or other entrepreneur ready to build a frighteningly powerful brand and business, you need to know how to use it. You don’t have to face the darkness alone, though.
I help entrepreneurs across the U.S. make smart, legally sound decisions about their intellectual property. I’m an attorney in Champaign-Urbana, Illinois, but I serve intellectual property clients nationwide.
If you’d like to consult with me, please book a consultation online at kingpatentlaw.com or by calling my office at 312-596-2222 or 217-714-8558.
Please check out the other posts and pages on my website for more information on intellectual property and business law issues. I’m also on most major podcast platforms as “Know Your Rights: Your Intellectual Property and Business Law Playbook” (video on YouTube, Spotify, and Substack only) and on most social media as @kingpatentlaw.
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