The senior associate of Ontier's Fashion and Luxury team, Paula Enríquez, has published an article in the specialised magazine Luxonomy analysing the new reality of virtual influencers.
Paula Enriquez argues that for several years now influencers have been an essential piece of the fashion world. Despite having been rooted in society for years, influencers are difficult to regulate. 'Beyond mere recommendations, the influencer has freedom of action and it is the jurisprudence that is gradually establishing the applicable regulatory framework. And as if that were not enough, before the figure of the influencer has been regulated, another figure appears whose regulation is even more problematic, the virtual influencer', she points out.
She says that 'from a legal perspective, there are many doubts that may arise, which brands need to take into account when entering into contractual relationships with the creators of virtual influencers, and we say creators, because unless things change a lot, the contractual relationship is established with them.'
She also points out that 'in the absence of specific regulation, the way to protect avatars is similar to other animated characters: registering the trademark, trade name or appearance of the virtual influencer as an industrial design.'
Paula Enríquez reminds us that 'unless the brand is the creator of the influencer, it must sign a contract with the creator and obtain all the intellectual and industrial property rights for its exploitation, either locally or globally. In order to do this, it is important to have a contract for the provision of services where the legal conditions of the contractual relationship are clearly and precisely set out. As it is an atypical figure, it is important that the contract specifies the legal conditions of the relationship and that, at least, it contains the following mentions: ownership of the intellectual and industrial property rights, actions to be carried out by the influencer - as well as the guidelines or control that the brand will have over the messages and actions, and whether there will be a minimum number of creations - the channels, the duration of the contractual relationship, the type of relationship, i.e. whether or not there is exclusivity and the scope of the relationship, confidentiality, economic conditions, liability, the applicable law and the method of dispute resolution.'
The article concludes that 'we cannot ignore the fact that these figures are here to stay and that their presence on social networks will increase. However, they probably won't become a 'real' threat to influencers, because although it is true that the avatars are very well made and it is often difficult to detect whether we are dealing with a virtual figure -although it is likely that it will be necessary to mention the fact that we are dealing with a virtual creation-, the public will be able to relate to a real being and not a virtual one. Furthermore, there are certain products, such as food or cosmetics, that wouldn't work in a virtual world because an avatar talking about the benefits of an anti-wrinkle cream or how tasty a soft drink is wouldn't be relatable. However, these creations will share the limelight with influencers and in the face of this new competition, it is likely that they will create their own avatar to prevent simple digital creations from taking the limelight.'
The full article is available here.
