Intellectual Property and Content Creators

José Abelino Báez and Jessy Guerrero, experts in Intellectual Property at ARIAS Nicaragua, present this article on the implications of intellectual property assets in collaboration with content creators and advertising campaigns.

In an increasingly digitalized world, it is common for companies, as part of their brand reach and promotion strategies, to incorporate collaborations with content creators into their advertising campaigns. In this context, intellectual property assumes a central role, since both the creation and the dissemination of content on social networks and digital platforms entail certain legal risks that must be considered. Hence the importance of identifying which intangible assets are at stake and how these risks can be mitigated.

Intellectual property is understood as a set of exclusive rights that the law grants over creations of the mind and human ingenuity, that is, trademarks, copyrights, patents, industrial designs, among others. These rights turn those ideas into intangible assets capable of generating economic value. However, in the digital era and with the advance of communication technologies, the ways in which content is created, distributed, and consumed have multiplied the challenges for the protection of these exclusive rights.

Content creators mainly represent "trademarks” through their social networks, contributing their image and/or voice to link it with the trademark they promote. They do this by producing different types of content, which can range from a short video, a story, or a post to more elaborate productions, such as promotional videos or their participation in advertising spots. The diversity of forms of creation opens the door to the emergence of copyrights, where ownership of the works may be confusing.

In Nicaragua we have a legal framework for the protection of these assets. Both for the promoted trademarks (Law No. 380 "Law on Trademarks and Other Distinctive Signs”), and for the content created and the advertising material, which may be subject to rights in distinctive signs or copyrights (Law No. 312 "Copyright and Related Rights Law”).

In matters of distinctive signs, two key aspects stand out. The first is the use of the promoted trademark: content creators must use it to produce the advertising material, but always in a limited manner, with authorization from the owner and subject to prior review to avoid damage to the brand’s prestige, trademark dilution, or acts of confusion in the market. This review must be carried out not only from a commercial perspective, but also with a legal approach that allows the mitigation of risks in consumer protection and infringement of third parties’ intellectual property. This leads us to the second aspect, which is precisely avoiding the improper use of trademarks or distinctive signs owned by third parties.

Regarding the latter, which is usually the most delicate, content creators must take extreme precautions not to incorporate trademarks or signs belonging to third parties. The unauthorized use of materials such as movie clips, music, photographs, texts, or advertising signs can result in legal and economic consequences of great impact. In case of doubt as to whether a sign or phrase is subject to trademark or copyright protection, the most advisable thing is to confirm it beforehand or refrain from using it. In Nicaragua, a useful tool in these cases is a search of registry history on a certain distinctive sign, which functions as a first filter to identify possible obstacles to the use or registration of advertising signs, including advertising signs.

In relation to copyrights arising from the creation of content, the issue arises as to who holds ownership; companies that contract with content creators must ensure that they correctly assign the economic rights over these "works,” whether under an employment contract framework or through an assignment of rights. This is where the drafting of intellectual property clauses within commercial contracts takes on an important role for the proper functioning of these campaigns.

Content creators will be recognized as authors holding the works, who retain their moral rights, while the economic rights must be assigned to the contracting party. Clear drafting of this section is important, as it can be a source of confusion between the parties, especially in agreements where the publication is made on the content creator’s profile.

Another aspect to consider for content creation is the use or implementation of comparisons with competitors; in this sense, it is necessary to establish measures and take precautions not to make comparisons that are defamatory with respect to the prestige and quality of the competing brand. They cannot be false comparisons, nor may they express opinions as if they were facts. In this regard, Law No. 601 "Law on Promotion of Competition” establishes that acts of comparison constitute unfair competition when the comparison refers to aspects that are not objectively verifiable, or that, if they are, contain false or inaccurate statements or information.

Likewise, a key point that cannot be overlooked in these collaborations is the Image Rights of the creators; these are related to consent for the use of the person’s image and the express consent for such image to be used to promote the brand, or for the duration of the advertising campaign in which they are participating, the period during which their image may be used if this is expressly established, and above all when it has a commercial and, therefore, monetary purpose.

Within Nicaraguan legislation, image rights are not expressly recognized as an autonomous right; however, they are implicitly protected through legal framework related to dignity, privacy, and personal integrity. In the constitutional framework, the Nicaraguan constitution establishes that every person has the right "to have their physical, mental, and moral integrity respected.” Likewise, protection mechanisms are provided to guarantee the safeguarding of personal data found in "media and digital environments” when their advertising use constitutes an invasion of privacy and, consequently, an infringement of dignity.