Digital marketing solidified its presence in 2020 due to the technological acceleration brought about by the COVID-19 pandemic. Businesses have turned to the digital world, now more than ever, to place their products; to achieve this, one of the methods used to advertise through technological means is via influencers and their social media networks.

Companies identify influencers who are followed by their target audience and contract them to market their products through their social media platforms, such as Facebook, Instagram, YouTube, and TikTok. Influencers usually include the products or services to be offered within their daily stories, and some even generate highly creative audiovisual content for their brands.

However, this creation of advertising content can fall into a legal limbo, as the question arises: who holds the copyright over the content that an influencer creates for a brand?

Copyright protects any original intellectual production available in a tangible medium of expression. That is to say, every video or song that an influencer generates for a brand and disseminates through their social media networks is protected by copyright, without the need to register it with the National Registry (Registro Nacional).

Pursuant to the Law and the Regulations on Copyright and Related Rights of Costa Rica (Ley y el Reglamento de Derechos de Autor y Derechos Conexos de Costa Rica), the author of a work is the natural person who carries out the intellectual creation. In the case of audiovisual works, the producer shall hold the economic rights (derechos patrimoniales), unless otherwise agreed. These economic rights grant the producer the power to reproduce, distribute, publicly communicate, and transform the work.

If no contract exists between the company and the influencer, the company will not be able to reproduce or use the campaign content without the influencer's consent. It is also important to reach an agreement regarding image rights (derechos de imagen / right of publicity), as the company could face legal issues if it uses the influencer's image, without their permission, in other publications that were not previously agreed upon. In this regard, some jurisdictions impose an obligation that all advertising content from an influencer associated with a brand contract must be clearly identified in the posts using a disclosure statement, such as "sponsored by" or "in partnership with," expressly indicating the name of the brand.

In light of the foregoing, we always suggest having a written agreement between the company and the influencer, which clearly establishes the aspects indicated in the preceding paragraphs. At Facio & Cañas, we advise you on the drafting of these contracts.