Influencer and Content Marketing: IP, Privacy and Compliance Issues

Editor’s Note: More than 93 million Americans—80% of Internet users—have searched online for a health-related topic.¹ In response, healthcare companies are expected to spend $1 billion online over the next five years.² Increasingly, healthcare marketers are implementing new approaches—such as influencer marketing and native advertising—to connect more effectively with their audiences.

As powerful as these new marketing options are, they also can pose serious pitfalls. Although they may not resemble traditional advertising—and they may not be created by the healthcare organization itself—influencer and content marketing are still subject to Section 5 of the Federal Trade Commission (FTC) Act prohibiting “unfair or deceptive acts or practices.” In a recent webinar, Manatt Health revealed how healthcare organizations can safely navigate today’s dramatically changing healthcare environment. In part 1 of our article summarizing the webinar, published in our June “Health Update,” we examined the Federal Trade Commission’s (FTC) guidance on endorsements and native advertising, as well as recent regulatory developments. In part 2 of our summary, below, we examine key IP issues in content marketing, Health Insurance Portability and Accountability Act (HIPAA) considerations, and best compliance practices. Click here to view the full webinar free on demand—and here to download a free copy of the presentation.

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Understanding Copyright, Trademark and Right of Publicity Issues

Any time a company is engaged in content marketing—whether it is creating content itself or acting through influencers—it is important to be cognizant of intellectual property (IP) issues. Copyright protects original works of authorship that are fixed in a tangible medium, such as literary, musical, dramatic, pantomime or choreographic works; pictures, graphics or sculptures; motion pictures and audiovisual works; sound recordings; and architecture, such as buildings or building designs. 

Copyright only protects actual expressions of original work. (Ideas, concepts, principles, procedures or methods of orientation are not copyrightable.) Any original works, regardless of the purpose for which they were created (e.g., artistic, commercial or personal) can be protected by copyright. Therefore, before using any work, it is essential to ensure the use has been cleared.

There are some exceptions, including works for which copyright protection has expired and therefore are now in the public domain. People often assume, particularly in influencer and social media marketing, that if a work is on a website or is otherwise publicly available, then it is in the public domain. But it is dangerous to make that assumption. Just because a work can be accessed on the web does not mean that it is in the public domain.  

Certain uses of copyrighted works—when only brief or limited excerpts of the original work are used—may qualify as “fair use” and therefore not require permission from the copyright owner. Again, as with the public domain issue, it is risky to automatically assume that fair use applies. It is safest to seek legal guidance on what constitutes fair use of a particular work.

Companies posting material also need to be aware of trademark issues. Trademarks protect brand names and logos that identify goods and services as being from a particular source. Trademarks also can be attached to slogans, product designs and distinctive architectural elements. If a company or its influencers use any third-party trademarks, those trademarks must be cleared before use. 

A trademarked name may be used generically in a manner that does not identify a particular source. There are also some nominative uses permitted without the trademark owner’s permission, such as if the use is necessary to refer to the product or service and the use does not imply any association, sponsorship or approval by the trademark owner.     

Finally, it’s important to be aware of right of publicity laws that protect the unauthorized use of a person’s identifiable attributes, such as his or her name, voice, likeness, or even distinctive gestures and phrases. If a company uses any distinctive personal attribute of a third party for a commercial purpose—whether in a consumer review, an influencer endorsement or its own content marketing—it is essential to get consent in writing.

Right of publicity laws are designed to protect only identifiable and recognizable traits. Using the first name or voice of an individual that cannot be generally recognized does not require consent from that individual.

It is critical to remember that, unlike copyright and trademark protection, right of publicity protection is provided at the state level and can vary from state to state. Some states do not recognize right of publicity after an individual’s death, while others extend protection for a set number of years after death. (The duration of postmortem protection also differs by state.)  

Five Steps to Third-Party Clearance

Whenever material is being produced—whether by a company itself or an influencer—it is key to be aware of any third-party content that would require clearance for use. There are five key steps to follow:

1. Identify all protectable third-party elements, such as any copyrighted material; trademarks; or the name, voice, likeness or other identifiable traits of an individual.
2. Determine who owns or controls the rights of any third-party elements.
3. Evaluate whether consent, license or release is necessary.
4. Determine the type of consent, license or release that is needed.
5. Obtain the written consent, license or release from the appropriate owners.

If those five steps have not been followed, avoid using the content.

Disclosure of Protected Health Information (PHI) in a Testimonial

The Health Insurance Portability and Accountability Act (HIPAA) applies when using identifiable information—including a patient’s name, photo, date of birth or other information that would make it possible to identify the patient—in any type of marketing, including testimonials. Before PHI is used, patients must consent to their information being shared. If a patient signs an authorization to allow the use of his or her PHI for content marketing, the specified PHI may be disclosed to the people or entities listed on the authorization form. The patient must sign the authorization knowing that the PHI is going to be used for content marketing. Among other things, a valid authorization form must include:

• The PHI to be disclosed,
• The people/entities who are permitted to disclose and receive PHI,
• The purpose of the disclosure,
• The termination date of the authorization, and
• The patient’s or personal representative’s signature.

A HIPAA authorization form cannot be combined with other types of consent forms. If a healthcare entity is getting consent for patient-related marketing, for example, it should have the patient sign one form for HIPAA authorization and then a separate form allowing the entity to use the patient’s likeness as part of a testimonial campaign. 

Entities cannot take excerpts from letters or even from public Facebook or Yelp reviews to use on their websites or in advertisements without getting HIPAA authorization. Even if a patient has disclosed his or her PHI, the entity cannot re-disclose it without authorization. It’s also important to be aware of HIPAA rules when taking pictures at patient-related events. Pictures can be considered PHI—and neither an entity nor its employees can post them without proper authorization from any patients who appear in the photos. 

Best Practices to Ensure Compliance

It is critical to review any advertising or marketing materials to assess risk. It is helpful to develop a questionnaire that marketing teams can use to identify risk areas and ensure they undergo legal review before any materials go live. While lists should be customized to each organization, some important questions include:

• Is the entity incentivizing patients, customers or other individuals to provide positive reviews on its website or in social media?
• Is the entity paying a physician, provider or influencer to endorse or promote its product or service?
• Can the entity substantiate each claim made by experts, consumer endorsers or influencers in their social media posts or product reviews?
• Is the entity paying for a study that directly or indirectly promotes its products and using the findings in an ad campaign?
• Does the ad or sponsored content include someone else’s copyrighted material, trademark or likeness?
• Is PHI used in the advertisement?

If the answer to any of these question is “yes,” it’s critical to ensure compliance with legal requirements. If there is a material relationship between an influencer and an advertiser, it must be clearly identified and disclosed, ideally at the beginning of a post. In addition, the disclosure must be attention grabbing. It must be where viewers are likely to look—not below the fold or after a “read more.” When streamed content is used, disclosures should be repeated. 

Tips to Ensure Compliance

Five key tips can help ensure that advertisers avoid potential problems when developing promotional campaigns:

1. Have proper agreements in place with influencers and content marketing partners that clearly lay out disclosure and other legal requirements.
2. Develop social media influencer guidelines, and require influencers and content marketers to comply with those guidelines.
3. Train the marketing team and influencers on legal requirements.
4. Monitor influencer and partner activity.
5. Enforce compliance with legal requirements and social media influencer guidelines—and have clear penalties for noncompliance.  

_{¹ Pew Internet and American Life Project.}

_{² Juniper Research.}