‘There needs to be an AI clause’: AI hype sparks influencer contract overhauls for name, image and likeness

“I am really bullish about sending out the rider, and just asking that my clients consider it. And luckily enough, most of them do,” she said.

AI has brought on a shift in influencer marketing. Marketers are commissioning creator content either fully or partly using generative AI, and there’s been a resurgence of virtual influencers and AI-generated content creators. And last week, SAG-AFTRA struck a deal with Narrativ, an online platform on which performers can license digital voice replicas to be used in audio ads. The deal will allow advertisers to replicate actors’ voices with AI, and at the same time performers will get to choose which brands they work with and how much to charge them.

This isn’t to say there hasn’t been pushback. SAG-AFTRA’s video game performer members went on strike against major companies, citing AI usage and consent as a sticking point. And last month, AI video generator Runway came under fire after allegedly training thousands of YouTube videos from news outlets, entertainment companies and creators without permission.

While AI clauses in influencer-brand contracts have yet to become the standard, the topic has given influencers something to think about, according to Steven Sharpe, a full-time lifestyle and wellness content creator with more than 24,000 followers across TikTok and Instagram, and founder of Nobius Creative Studios, a creative shop and talent agency.

“My mindset on it is as things kind of move into this whole AI field where AI is combing through all of our content, it’s going to be about who owns what,” he said. There are also swirling questions including how that content is being used with AI and who’s making money from a creator’s likeness, he said. Sharpe hasn’t baked AI stipulations into his own contracts because he doesn’t want to “jump the gun,” he added, but he is taking a closer look at contractual content usage rights out of caution.

The bigger content conversation

The conversation around AI and influencer marketing is couched in a greater conversation about content usage rights, or legal permissions that outline when and how a brand can use a creator’s content.

Influencer marketing is quickly maturing. To get the most bang for their buck, marketers are putting paid dollars behind creator content, stretching it across brands’ own social and digital channels, streaming platforms and even retail media networks. In response, creators and influencers have become more adamant about setting a precedent around their name, image and likeness, and content usage rights. AI only adds another layer to all of this, said Lindsay Calabrese, brand partnerships and culture director at ad agency Team One.

“It’s just changing so quickly that now there needs to be an AI clause and creators need to make sure that that’s covered in there,” said Calabrese, adding that she’s still trying to wrap her head around just how quickly things are advancing with AI.

Historically, brands had free reign when it came to content usage rights, she added. Oftentimes, usage rights lasted anywhere from six months to perpetuity (otherwise known as forever). As influencers and creators have gotten more knowledgeable about contracts, the standard has changed to 30 days. Not only does this give influencers more control over when and how their content appears both online and in the real world, but it also signifies a push for bigger creator payouts.

“I would say now, the content usage right of IP is the single biggest factor that allows creators to charge greater rates for working with brands,” said Neil Waller, co-founder and co-CEO at Whalar Group, a creator company. Waller said that adding usage rights to an influencer-brand contract can get a creator anywhere from two to 10 times more pay while the creator puts out the same amount of content, which a brand can continue to use for the agreed-upon duration.

Greater payouts for creators

For example, Sharpe charges $300 per month, per asset, and sends out a recurring invoice to brands for content usage rights. So if a brand wanted to leverage four social posts beyond the span of a specific campaign, it would cost that brand $1,200 per month. However, Sharpe avoids full usage rights, ensuring he ultimately owns not only his own content, but his own name, likeness and image.

“That’s the reason why people are going to buy usage rights on the content, is because they want to make money off of it,” he said. “I know how the industry works, and it’s my way of asserting myself as someone who’s very knowledgeable, as a brand partner.”

Meanwhile, Ofodu’s content usage rights are discussed during a client’s onboarding meeting, she said. Fees can swing upward of $1,000 to use on a brand’s website.

In the big picture of social media marketing, brands need almost an endless amount of content to keep up with how consumers are spending their time. For example, over half of U.S. teens spend at least four hours a day on social media, according to Gallup. So it makes sense that many brands are turning to influencers and content creators to help build up their content libraries.

“You’re leaving money on the table, and you’re actually overspending in other areas not to be investing in the creator’s content and using it to the max,” said Waller.

He added that the industry is a long way from standardization in how different players approach content usage rights, especially as the influencer economy and AI hype cycle continues. Not to mention, the upcoming election season, during which political candidates are expected to turn to influencers for organic reach. At the same time, the next U.S. president will need to consider things like AI regulation as AI continues to be incorporated into more tech. (Read more about where Vice President Kamala Harris and former President Donald Trump stand on big tech issues here.)

Still, creators are trying to set a precedent, Ofodu said, referring to the SAG-AFTRA deal and other legislation she and other creators are advocating for to protect themselves as AI continues to evolve.

“If we don’t advocate for the legislation that we need this year, when it comes to usage rights on projects, then, in the years to come we will not get it, because we wouldn’t have set a precedent,” said Ofodu. “It’s a historic time.”