Who owns the rights to branded content: publishers or brands?

Tessa Gould, director of HuffPost Partner Studio, said that questions about content ownership have replaced questions about promotion as brands’ biggest concerns with sponsored content. In contrast with the WSJ, The Huffington Post typically takes the position that it owns the content it creates on behalf of brands, according to chief legal counsel Kelly O’Connor. “We are willing to work with our advertisers to make sure that content gets out there and distributed on all the places that it should be distributed,” she said.

The Huffington Post shares its approach with Complex Content Studio. The company, which has created articles with brands like of Footlocker, Verizon Wireless and Mountain Dew, says it retains ownership over its content and licenses it to brands, which can then use the creations elsewhere. 

As of yet, there haven’t been any public spats between publishers and brands over custom content. Trevor Fellows, head of global media sales at The Wall Street Journal, said the while legal questions around sponsored content are both complicated and increasingly commonplace, The Wall Street Journal’s stance is fairly simple. When WSJ Content Studio creates content on behalf of brands, that content belongs to the brand, not the Journal.

“Our view, in principle, is that if our custom content team is creating content that brands are paying for, then those brands should enjoy as many benefits to that content as they possibly can,” he said, adding this is what most clients are asking for.

For brands, this means being able to not only redistribute WSJ Content Studio content but also to decide how long that content can stay online. If a brand determines that a piece of content has outlived its usefulness, or is no longer relevant, the brand can ask WSJ Content Studio to take it down.

Regardless of the ownership position that publishers take, creating content for brands has created some new legal wrinkles for all the parties involved. One big issue involves the photos used in sponsored content. Using images from stock photography agencies like Getty Images, for example, makes it harder for publishers to give brand partners complete control over the content they create for them. Gould said that these licensing concerns are largely why Huffington Post Content Studio has moved toward doing more of its own original photography rather than lean too heavily on third parties, because it makes it easier for HuffPost clients to ‘own’ content that includes imagery.

“Generally, you can’t transfer the rights to something you don’t own,” said Daniel Gervais, an intellectual property law professor at Vanderbilt University.