Intangiblia™
#1 Podcast on Goodpods - Intellectual Property Indie Podcasts
#3 Podcast on Goodpods - Intellectual Property Podcast
Plain talk about Intellectual Property. Podcast of Intangible Law™
Intangiblia™
Influencers, Inc.: Chasing Clout, Creating Clones
Reimagining Intellectual Property in the Age of Luxury Tech: I’m curating this exclusive side event in Geneva on September 1 during the Luxury Innovation Summit. Limited seats, apply now to join the conversation.
On this episode, we discuss how the explosive growth of the influencer economy has created a fascinating new frontier in intellectual property law, where personal brands clash with corporate interests and digital avatars raise unprecedented legal questions.
This episode unpacks the high-stakes IP battles reshaping the $20 billion influencer industry, revealing how savvy creators protect their most valuable asset, their identity. Through compelling case studies like Charli D'Amelio's strategic trademark registrations and the legendary "Battle of the Kylies" between Jenner and Minogue, we explore how influencers transform fleeting social media fame into lasting, legally-protected brand equity.
But the legal landscape doesn't just apply to human influencers. We venture into the uncanny valley of virtual personalities like Lil Miquella and Noonoouri, examining how these digital beings, composed entirely of intellectual property, navigate contracts, licensing, and disclosure requirements. As luxury brands increasingly embrace these pixel-perfect ambassadors who never age and never sleep, the boundaries between creative assets and personas continue to blur.
The global response to these challenges reveals fascinating cultural and legal differences. From Tennessee's groundbreaking AI-ELVIS Act protecting voice rights to China's comprehensive regulations on "deep synthesis" content, we witness how legal frameworks worldwide are evolving to address deepfakes, digital cloning, and the ownership of virtual identities.
Whether you're an influencer building your personal brand, a marketer navigating partnership agreements, or simply curious about the legal infrastructure behind social media fame, this episode offers crucial insights into who truly owns your digital presence—and how to protect it. Remember: in the high-stakes world of influence, the law isn't here to rain on your parade; it's here to ensure you own the parade itself.
Subscribe now to explore the intersection of intellectual property and digital influence, and join us at the Luxury Innovation Summit 2025 in Geneva this September for our special event on IP in the age of luxury technology.
Today's episode has it all clout-chasing creators, name-snatching rivals, brands ghosting their own campaigns and AI-generated fashionistas that never age and never sleep. We're diving into the lawsuits, contracts and policies shaping the influencer economy, both for humans and their pixel-perfect clones.
Speaker 2:You are listening to Intangiblia, the podcast of intangible Law, playing talk about intellectual property. Please welcome your host, Leticia Caminero.
Speaker 3:Welcome back to Intangiblia. I'm your host, leticia Caminero. This week's episode is inspired by an event I'm curating right here in Geneva reimagining intellectual property in the age of luxury tech the official side event at the Luxury Innovation Summit 2025. If you happen to be around on Monday 1 September at 11am, join us at Restaurant Le Cercle de Duron at Faire Geneva. We'll talk about where luxury brands and technology meet and occasionally collide, and that's exactly what today's topic is about the IP rules, battles and creative chaos behind influencers, real and virtual, who sell us everything from lip gloss to NFTs.
Speaker 1:Before we get too deep, a quick disclaimer I am an AI co-host, not a lawyer.
Speaker 3:And I am a lawyerhost, not a lawyer. And I am a lawyer, but not your lawyer. And I'm also a cloned AI voice which means this episode is just for information purposes only. Let's start simple. Influencers are basically personal brands in motion. That means their names, faces and content can be protected under intellectual property law.
Speaker 1:And virtual influencers. They're like brand mascots on steroids. They're entirely constructed from IP their face, their voice, their wardrobe, even the code that makes them blink.
Speaker 3:Exactly which makes them valuable assets and prime targets for legal disputes.
Speaker 1:Plus in a $20 zero cents billion a year. Influencer industry. We're not just talking about who gets the best selfie light. We're talking serious money, brand trust and reputations, both human and synthetic.
Speaker 3:Let's start with Charli D'Amelio. She is one of TikTok's biggest stars over 100 million followers, endless brand deals, and she's barely in her 20s. But Charli also did something that a lot of influencers wait too long to do she filed for multiple trademarks on her own name early.
Speaker 1:So she basically called dibs on herself.
Speaker 3:Pretty much In 2020,. Right as her fame exploded, she and her legal team filed applications with the US Patent and Trademark Office to cover Charli Amalia for everything from clothing and cosmetics to entertainment services. That meant she wasn't just protecting her name for TikTok videos, she was locking it down for merch beauty products, even potential TV shows.
Speaker 1:That's like turning your name into a legal fortress.
Speaker 3:Exactly Because here's the risk Once your name starts trending, opportunists will file for it, hoping to either block you or force a buyout. We've seen it happen People rush to register celebrity names for unrelated products, then try to cash in by filing early. Charlie avoided messy opposition battles and made sure any fake Charlie hoodie sellers would be in clear infringement territory.
Speaker 1:And it's not just about stopping fakes, it's about controlling your future. If she ever launches Charlie perfume or a dancewear line, she already owns the rights to the name in that category.
Speaker 3:Right. It's a textbook example of how influencers can use trademark law to turn a fleeting moment of fame into a lasting brand, and do it before someone else owns your identity.
Speaker 1:So moral of the story trademark first, tiktok later.
Speaker 3:Next up Kim Kardashian's SKN fight, which is a perfect reminder that even the most famous names can hit a legal wall.
Speaker 1:Wait, are we talking about the time she tried to launch her own skincare empire and ran into a Brooklyn roadblock?
Speaker 3:Exactly In 2022, kim announced her new brand, skn by Kim. Clean, minimalist packaging, luxury positioning and instantly a global headline. But here's the catch In Brooklyn, there was already a beauty salon and spa called Skin Plus, run by Sidney Lonsford, that had been using that name for years and had its own trademark application on file.
Speaker 1:So the little salon that could was suddenly facing the Kardashian legal machine.
Speaker 3:Right, and they didn't just sit quietly. Scan Plus filed a trademark opposition, arguing that Kim's brand would cause consumer confusion. From a trademark law standpoint. They had a solid point Same industry, almost identical name. Overlapping customer base in the US is about first use in commerce, not first to make it trend on Instagram.
Speaker 1:And Kim's fame actually works against her here. The bigger your reach, the higher the chance people will assume you made the other product.
Speaker 3:Exactly. The dispute turned into a PR narrative. Was this a case of trademark bullying or just an unfortunate coincidence? Reports say the two sides eventually reached a confidential settlement, but it delayed and complicated Kim's launch.
Speaker 1:So moral of the story even if your brand is by Kim, you still need a clearance search before you emboss it on a thousand jars of moisturizer.
Speaker 3:Right. Fame gives you influence, but in trademark law, prior rights win. And then there's the one I like to call the battle of the Kylie's Kylie Jenner versus Kylie Minogue.
Speaker 1:Two Kylie's enter, one Kylie leaves with a trademark.
Speaker 3:In 2015, Kylie Jenner, reality TV star, turned beauty mogul. Applied to trademark just the word Kylie in the United States for cosmetics and related products. Her goal was to lock down the name for her growing makeup empire.
Speaker 1:Her goal was to lock down the name for her growing makeup empire. Seems straightforward, unless you've been Kylie.
Speaker 3:Minogue. Since the 1980s Exactly, kylie Minogue, grammy-winning Australian pop star, internationally famous long before Instagram existed, already had her own trademarks for Kylie, covering perfumes, clothing and entertainment services. When Jenner's application hit the US Patent and Trademark Office, minogue's legal team filed an opposition and they didn't hold back. Not at all. The filing famously referred to Jenner as a secondary reality television personality and warned that granting the mark to her could cause confusion with Minogue's established brand. It was equal parts legal argument and subtle jab jab.
Speaker 1:Ouch, that's the kind of line that gets highlighted in court documents and on Twitter.
Speaker 3:The position was based on prior rights. Minogue had been using Kylie commercially for decades, with registered trademarks and global brand recognition In trademark law. That's gold.
Speaker 1:So this wasn't about who had more followers. It was about who had first dibs in the legal sense.
Speaker 3:Exactly. After some legal back and forth, they settled in 2017. Terms were confidential, but both continued using their names in their respective domains, suggesting they carved out peaceful coexistence.
Speaker 1:Listen, trademark law doesn't care about your reality show ratings. It cares about prior use and the likelihood of confusion.
Speaker 3:And maybe, just maybe, it also cares about avoiding a pop star dragging you in a public filing. Okay, now for one of the strangest influencer battles I've seen the so-called sad page lawsuit.
Speaker 1:Is that the one where someone basically tried to copyright an aesthetic?
Speaker 3:Exactly In 2024, influencer Sini Nicole Guiford sued another influencer, Alisa Shield, claiming Shield copied her entire sad beige. Look on Instagram. We're talking muted neutrals, minimalistic product shots, even similar poses and captions.
Speaker 1:So beige handbags, beige coffee cups, beige sweaters.
Speaker 3:Beige everything. Gifford argued it went beyond coincidence. She claims straight dress rights in the overall look and feel of her feed. That's unusual because trade dress usually applies to product packaging or store design, not someone's curated Instagram grid.
Speaker 1:Let me guess she also alleged copyright infringement.
Speaker 3:She did. The complaint said Shield's posts were strikingly similar and that her photos and aesthetic choices were original works protected by copyright. This was, according to the magistrate, possibly the first lawsuit of its kind between influencers over social media style.
Speaker 1:Did she win the right to own Beige?
Speaker 3:Not exactly. The case never went to a full trial. They reportedly reached a confidential settlement, but legal commentators were skeptical from the start. The general view was you can protect specific photos or designs, but you can't copyright a vibe.
Speaker 1:Which is good news, because, if you could, half of Pinterest would be in court right now.
Speaker 3:Right, but it's still a landmark in the sense that influencers are now trying to use IP law not just to protect their names but their aesthetics. Even if the law doesn't fully stretch that far yet, it shows where the next creative disputes might pop up.
Speaker 1:And the takeaway. Own your photos, sure, but don't expect to trademark the entire color palette of a coffee shop.
Speaker 3:All right. Last, stop on the real human side the right of publicity or, depending on where you are, image rights, portrait rights or personality rights rights. Basically, your legal power to say no when someone tries to profit off your name face or likeness without permission.
Speaker 1:In other words, if someone slaps your face on a billboard for cheese graters and you've never even used a cheese grater you might have a case and influencers need to understand this, because their brand is literally their identity.
Speaker 3:because their brand is literally their identity. Let's start with Kim Kardashian v Old Navy. Back in 2012, old Navy ran a TV ad with a model who looked a lot like Kim Dark hair, glamorous outfit, even similar mannerisms. Kim sued, claiming it created the false impression. She endorsed the brand. That's a classic right of publicity claim under US state law. They settled, but it reinforced the point. Lookalikes in ads can land you in court.
Speaker 1:So basically, if you're going to hire a doppelganger, make sure it's for a costume party, not a campaign.
Speaker 3:Exactly Now in the UK. There's no standalone image right, but celebrities can use Pass Enough to fight unauthorized merch. Rihanna v Topshop is the big example. Topshop sold T-shirts with Rihanna's image. They licensed the photo from a photographer but not from Rihanna herself. She sued, arguing customers would think she approved the shirts and she won.
Speaker 1:So no image right in the UK. But if you can prove the public will think you endorsed it.
Speaker 3:You've still got a weapon Exactly. And then there's China's civil code, which came into effect in 2021. It explicitly gives people the right to control their likeness and voice. That means in China, using an influencer's photo or even a voice recording for commercial purposes without consent is flat out illegal, with very limited exceptions like news reporting or public interest art.
Speaker 1:So in China you can't just pull a random influencer's video clip for your ad and hope no one notices.
Speaker 3:Not unless you enjoy lawsuits. These cases and the laws behind them show that protecting your image isn't just for A-list celebrities anymore. For influencers, your likeness is your livelihood, and knowing how it's protected where you operate is crucial.
Speaker 1:And if you go global, you better know which countries will back you up and which ones will just let someone else profit off your smile.
Speaker 3:All right time to leave the realm of ring lights and reality TV and step into the uncanny valley. Virtual influencers and AI avatars.
Speaker 1:Ah yes, the ones who never sleep, never age and never get caught subtweeting their ex.
Speaker 3:Exactly these digital personalities are entirely made of intellectual property their face, their voice, their wardrobe, even the software code that makes them blink. That's why the biggest question is who owns them? Take Lil Miquella, for example. She's a CGI girl with millions of followers, brand deals with Prada and Calvin Klein and a pop music career, but she's not a person. She's the creation of a company called Brew, which owns her image, voice and storylines, the way Disney owns Mickey.
Speaker 1:Mouse. So in legal terms she's a brand mascot who can sing and throw shade, exactly. And then you've got Nunuri, a stylized virtual fashion influencer who's done campaigns with Dior, versace and Balenciaga. She was created by a graphic designer in Germany and licensed to brands, just like you license a cartoon character for an ad. But here's where it gets tricky. These characters can be imitated or outright stolen, just like human influencers. And then there's the darker side deep fakes, like the case of Michelle Jancy, right.
Speaker 3:Right. Michelle Jancy is a lifestyle vlogger who discovered her likeness had been hijacked in a fake ad for an erectile drug, complete with a deep, faked video of her speaking in her own bedroom. It looked real, but she had nothing to do with it. Tom Hanks had a similar problem when a deepfake version of him popped up in an unauthorized dental plan ad.
Speaker 1:It's the influencer nightmare. You wake up and your face is selling something you've never heard of.
Speaker 3:Exactly, and this is where law is scrambling to keep up In the US. Some states have passed laws against this. Tennessee's AIL-VIS Act in 2024 was the first to explicitly protect people's voices and likenesses from AI mimicry without consent for both the living and the dead. California and New York are considering similar protections, especially for actors, models and public figures.
Speaker 2:Intangiblia, the podcast of intangible law. Playing talk about intellectual property.
Speaker 1:And in China they've gone even further with their deep synthesis rules. You can't use someone's image or voice in AI generated content without their consent, and anything AI altered has to be clearly labeled.
Speaker 3:Right. It's not just about stopping fakes, it's about transparency, and that applies to real and virtual influencers alike. Applies to real and virtual influencers alike. Even if your avatar is entirely fictional, ad regulators expect you to disclose when content is sponsored. The FTC in the US has made it clear that ad rule doesn't vanish just because the influencer is pixels.
Speaker 1:So, basically, whether you're carbon-based or code-based, the rules are the same Don't use someone's likeness without permission, don't mislead your audience and, yes, put that hashtag in there.
Speaker 3:Exactly. Virtual influencers might avoid human scandals, but they open up new legal battles over ownership, imitation and disclosure, and those battles are only getting started, all right. So whether your influencer is human or pixel, perfect, once the contracts are signed, you think the hard part's over.
Speaker 1:Oh, my sweet summer child.
Speaker 3:Exactly Because influencer brand partnerships can go from dream collab to legal nightmare faster than you can say unpaid invoice. Let's start with the classic breach of deliverables. Back in 2018, fashion influencer Lucas Zavatt signed a $60,000 or cents deal to promote Snap Inc's spectacles during Fashion Week. The deal required four Instagram posts and an appearance at certain events wearing the glasses. Savat got $45,000, zero cents up front posted once, skipped the rest and went about his life. The PR firm sued for breach of contract, demanding the money back plus damages.
Speaker 1:Translation if you're getting paid to post, you can't just not post, right? These days, brands protect themselves by holding part of the payment until the campaign's complete. No posts, no final check. Then there's exclusivity breaches. Contracts often say you can't promote a competitor for a set time before and after a campaign. Say you can't promote a competitor for a set time before and after a campaign. If you're the face of one sports drink, you can't pop up sipping another on TikTok the next week. Do it anyway and the brand can terminate the deal, claw back payments or, if they're feeling spicy, sue, and those clauses can be sneakily broad. No competitor can sometimes mean no other product in the same general category, which could be half your fridge.
Speaker 3:Exactly. Then there's the morals clause, the escape hatch for brands when their influencer goes off screen. In real life, it covers anything that could tarnish the brand's reputation. That's how brands dropped YouTuber Logan Paul after his infamous 2018 video, or ended lucrative partnership with Kanye West when controversy became too costly, which is why some luxury brands secretly love virtual influencers.
Speaker 1:No off the cuff tweets. No paparazzi scandals just programmable perfection. Scandals just programmable perfection.
Speaker 3:And lately we're seeing a new legal front consumer class actions. In early 2025, brands like Celsius, revolve and Alo Yoga and the influencers they hired were hit with lawsuits, alleging they failed to disclose that certain posts were sponsored. Plaintiffs claim that missing ad tags tricked consumers into thinking the endorsements were genuine, leading them to buy products at premium prices.
Speaker 1:So it's not just the FTC sending warning letters anymore, it's your own followers filing lawsuits.
Speaker 3:Exactly, and whether you're a human influencer or a CGI avatar, the disclosure rules are the same. If you're paid to promote, you have to tell people clearly and conspicuously.
Speaker 1:Bottom line deliver the post, respect exclusivity. Stay out of scandal and slap that ad where everyone can see it.
Speaker 3:Now, if there's one industry that has really leaned into influences, human and virtual, it's luxury fashion. And when they stepped into the metaverse, it's not just about selling clothes, it's about crafting a whole digital fantasy and controlling it down to the last pixel, because that's what couture level micromanagement looks like. Exactly. Take Balma's virtual model army back in 2018. Shudu, Markai and Zee, hyper-realistic digital models who starred in the brand's campaigns. Shudu, for example, looks so lifelike that many people thought she was a real model. She wasn't.
Speaker 1:She was entirely CGI, owned and operated by a creative agency, which means Balma didn't have to deal with last minute cancellations, hair emergencies or diva demands, Just render, retouch and release.
Speaker 3:Then there is Prada, who went even more interactive. They handed over their Instagram account to Lil Miquela during Milan Fashion Week in 2018. She posted from shows, wore the collection and interacted with fans as if she were really there.
Speaker 3:And the genius is no travel budget, no jet lag and she'll never get caught wearing a rival brand on her day off. Dayur has worked repeatedly with Norvi, another virtual influencer, who's been styled in everything from haute couture gowns to streetwear collabs and Louis Vuitton, even put Final Fantasy video game character lining in a campaign, complete with a handbag that matched her pixel-perfect battle gear.
Speaker 1:Talk about crossovers. That's like if a Marvel superhero showed up in a Gucci ad.
Speaker 3:IB Dynamics here are fascinating. When a luxury brand collaborates with a virtual influencer, they aren't just paying for a photo shoot, they are licensing a character. That means negotiating usage rights, creative control and sometimes exclusivity. For example, a brand might insist that the avatar can appear wearing a competitor's designs for a set period, just like with human models.
Speaker 1:And let's not forget if the brand creates original digital assets, say a virtual dress designed specifically for the avatar, the contract has to decide who owns that. Does it stay with the brand or does the avatar's creator get to reuse it?
Speaker 3:Exactly. These deals are part talent contract, part licensing agreement and part content production deal. And for brands, virtual influencers have one big advantage over humans total narrative control. They want age change style without approval or get caught in a public scandal, unless their creators script it that way.
Speaker 1:Though in a way the metaverse is the ultimate PR dream, perfectly unbanned forever.
Speaker 3:But, as you can imagine, that much control also raises IP stakes. If a collaboration goes bad, you can't just replace the face. You might have to untangle who actually owns the character's image, voice and storyline before you can move on. We've talked about the cases, the brands, the avatars. Now let's zoom out to the big picture. How are laws and policies around the world shaping the future of influence, both human and virtual?
Speaker 1:And the good news is there's a lot happening. Different countries are building their own toolkits to help protect names, faces and digital doubles names, faces and digital doubles.
Speaker 3:In the United States, the framework is a mix of state-level rights and federal guidance. Over 30 states recognize a right of publicity, meaning individuals can control how their name, image and likeness are used commercially. Some even extend this to voice and posthumous rights, giving long-term protection to creative legacies.
Speaker 1:And new developments are coming fast. Tennessee's Elvis Act in 2024 was the first US law to clearly address AI cloning of voices and likenesses. California, new York and others are exploring similar measures.
Speaker 3:Meanwhile, the Federal Trade Commission keeps influencer marketing clear and transparent through its endorsement guides. They've made it simple If you're being paid, label it so audiences can make informed choices.
Speaker 1:That's a principle that works across borders.
Speaker 3:Clarity builds trust In the European Union. Many member states already protect personal likeness through privacy or personality rights. France, germany, spain and others have strong consent requirements before someone's image can be used commercially used commercially and the upcoming AI Act adds another layer requiring disclosure for AI-generated or altered content that could be mistaken for real.
Speaker 1:That's especially relevant for virtual influencers, since it supports transparency without limiting creativity.
Speaker 3:China has integrated image and voice rights into its civil code since 2021, making consent a clear part of the process. The deep synthesis provisions build on that by ensuring that, if AI is used to create or alter a likeness, audiences are informed and the person's approval is obtained.
Speaker 1:As a practical approach. It gives room for innovation, but makes sure creators and the public know what's authentic and what's synthetic.
Speaker 3:Japan recognizes personality rights to court decisions, which allows for flexible interpretation as technology evolves. These rights cover the use of someone's image in commercial contexts and cultural norms. Also emphasize respect for or create identity.
Speaker 1:India has seen courts protect celebrity likenesses and names from unauthorized use, and the Advertising Standards Council of India's influencer guidelines encourage clear, upfront disclosure in advertising.
Speaker 3:Across Latin America. Countries like Brazil, mexico and Argentina treat image rights as part of constitutional or civil code protections. Courts there have awarded damages for unauthorized use, supporting both established and emerging public figures.
Speaker 1:And in South Africa, image and personality rights are recognized under both common law and the constitution, with data protection rules that can also apply to biometric information like facial images or voice prints.
Speaker 3:Australia and New Zealand approach the issue through consumer protection and passing off laws. This ensures that if someone's image or persona is used in a way that could mislead consumers, there's a clear path to address it.
Speaker 1:So, while the legal paths may vary, the shared goal is the same supporting creators, protecting identities and building trust between influencers, brands and audiences.
Speaker 3:whether the influencer is human, animated or entirely AI generated, human animated or entirely AI generated, and that shared goal is a solid foundation for future policies that can keep pace with the creative and commercial power of influence. All right time to land this plane with our five takeaways.
Speaker 1:Or five hashtags you might want to tattoo on your legal strategy.
Speaker 3:One trademark, early trademark, smart. If your name, slogan or avatar is part of your brand, register it before someone else does. That goes for real names, stage names and even the names of your virtual creations. Cold dips before the copycats do.
Speaker 1:It's faster and cheaper than buying it back later. Two contracts aren't just paperwork, they're your playbook. Spell out deliverables, deadlines, exclusivity and what happens if something goes wrong, whether you're the influencer or the brand. Clarity up front saves courtroom drama later. Think of it as your prenup for clout Three disclosure is your friend.
Speaker 3:A clear ad or pay partnership tag isn't just compliance, it's trust building with your audience. Hidden disclosures can cost you followers money and, yes, legal fees. Honesty is influencer currency. Spend it wisely.
Speaker 1:Four protect your likeness, carbon or code your face, your voice, your vibe. If it's you or a creation of you, guard it. That means consent for use, Watching for fakes and understanding your rights in the markets you operate. Even pixels need personal boundaries. Five virtual doesn't mean risk-free Avatars, deepfakes and AI influencers have the same IP and brand safety issues as humans, sometimes more. Treat them like any other high-value asset Register, license, monitor and protect, because in the metaverse, the brand you save might be your own.
Speaker 3:So, whether you're chasing clout or creating clones, the law is not here to rain on your parade.
Speaker 1:It's here to make sure you own the parade and that the parade isn't selling knockoff handbags with your name on them.
Speaker 2:Thank you for listening to Intangiblia, the podcast of intangible law playing. Talk about intellectual property. Did you like what we talked today? Please share with your network. Do you want to learn more about intellectual property? Subscribe now on your favorite podcast player. Follow us on Instagram, facebook, linkedin and Twitter. Visit our website wwwintangibliacom. Copyright Leticia Caminero 2020. All rights reserved. This podcast is provided for information purposes only.
