Social media influencer marketing has had a significant impact in the way brands reach consumers worldwide. Social media influencers are very important to platforms such as YouTube and Instagram and even more so to brands. As independent contractors, social media influencers garner more outreach than any company’s advertising team could ever hope to accomplish. From engagements like brand awareness and product placement and “authentic reviews,” according to Business Insider, the influencer marketing industry is expected to be worth up to $15 billion by 2022—up from $8 billion in 2019. Influencers, once a niche group, are now everywhere—we can spot them on the red carpet, in commercials, and on runways. As their numbers become more widespread and controversies settle over fake engagements and followers, virtual influencers have entered the market and are set to transform the influencer industry.
Imagine as you scroll past an Instagram page, you notice the certified blue check, 1+ million followers, and many social engagements in the comments section. You might conclude that this person is worth pressing the “follow” button. Further, you notice that this is an influencer who has brand deals with Prada®, Balenciaga®, Calvin Klein®, Chanel®, and was even photographed with real-life celebrities. This person also shows support for Black Lives Matter®, and stands with the LGBTQ community.
But what if you realized that this person was not a human but a computer generated image created in the image of humans to be your typical “it” girl and boy and has a potential net worth of millions of dollars?
Miquela Sousa known as “Lil Miquela” is one of the most famous virtual influencers to date. With over 1.5 million followers, Miquela is a 19-year old “average” girl based in Los Angeles, California. Marketed as a musician, you can find her music on Spotify and YouTube. She came onto the scene in 2016 and after much speculation and questions such as, “why does she look like a robot?” in 2018 Miquela revealed to her followers that she was not a real human. Her success happened over a short period of time and raises many questions about brand marketing.
Should companies continue to use real-life influencers and celebrities to market their products or should they turn to a pixelated version of their ideal brand ambassadors who are: (1) less regulated than their human competitors and (2) are under the control of their creators who are not yet legally required to disclose their identity? The Federal Trade Commission has commented and acknowledged that, while it hasn’t addressed the use of virtual influencers, companies using these characters should ensure to communicate statements that are “truthful, not misleading and substantiated.” What if Miquela markets and reviews beauty and skincare products to consumers? Should we as consumers trust her reviews? Are they considered truthful statements?
While the FTC has yet to regulate virtual influencers, here are some legal and business implications to keep in mind:
- Trademark: creators of virtual influencers may want to register the names of their virtual influencers if they intend to use the names to identify the source of the creator’s goods and services.
- For instance, Miquela’s creator filed an application with the U.S. Patent and Trademark Office in 2019 for the mark MIQUELA in the “entertainment services, namely, internet appearances by a CGI social media influencer.”
- Copyright: virtual influencers may also be protected by copyright law. Copyright protects original expressions of ideas that are fixed in a tangible medium of expression such as: photographs, animations audiovisual works, and books.
- Suppose someone decides to draw or create an image of Miquela, assuming Miquela is entitled to copyright protection, Miquela’s creator would be the author of that image and may be able to sue for copyright infringement.
- Right of Publicity: virtual influencer creators may be liable for misappropriation if they are designed in the likeness of human celebrities without their permission.
- An example would be of a virtual influencer who looked and sounded like Kim Kardashian and may be married to a rapper. Creators of virtual influencers can learn from the New York decision regarding Lindsey Lohan’s allegation that Grand Theft Auto videos games used her likeness for two images and for the character Lacey Jonas. Ultimately, Lindsey Lohan lost and on appeal, the court found that the Grand Theft Auto character was a “generic artistic depiction of a ‘twenty something’ woman without any particular identifying physical characteristics.” Lohan v. Take-Two Interactive Software, Inc., 31 N.Y.3d 111, 122-23 (2018). But, as our sister blog pointed out, the result may have been very different in California.
- For now, some right of publicity statutes, such as New York, only allow claims for right of publicity against living people. Thus, for right now, creators may not be able to count on this specific intellectual property protection for their own virtual influencers. In other states, the law permits the heirs and assignees to bring a lawsuit for violations of right of publicity relating to someone no longer living.
Goodwill: Moral and social considerations
- Unlike human influencers, virtual influencers offer a level of control for many companies and brands. They are created by their creators, can be programmed to address and avoid certain topics, and associate themselves with particular brands and social issues.
Despite this level of control, creators themselves can make mistakes and face issues such as cultural appropriation and offensive comments.
In short, virtual influencers now have a piece of the social influencer pie, companies appreciate the control over them and regulators and consumers should be aware of the many legal implications and social and moral considerations before or after you press that “follow” button.