Authored By Haviland Macy Marie Kebler, Esq.
With the advent and proliferation of social media, personal branding has become so much more important than before. While it used to be that it might only be Sports Icons, Music Icons, and celebrities that used their names for substantial branding purposes, now, anyone in the social media, influencer, YouTube, and Twitch spaces may need to consider protecting their personal brand.
Protection for a personal brand may be available through many avenues, including copyright and trademark protection. Copyright protection may be most appropriate for content creators, vlogs, and those who have developed personal branding with a strong and artistic design. Having protection, whether under a Registered Trademark or Registered Copyright, allows you to monitor and enforce your personal brand quickly if issues of infringement arise and can be valuable business assets.
Copyright Protection arises under the Copyright Act of 1976 and while the drafters of the Act did not contemplate protection of content on social media platforms, the Act has evolved to assist content creators and influencers who are creating works of art, including websites, videos, blogs, NFTs, and photographic content. Copyright Act of 1976, 17 U.S.C. §§ 101-1332. Even though these types of specific registrations are not necessarily included in the Act, the United States Copyright Office regularly issues guidance on how to protect your authorship to created content through the Copyright Act. If a personal brand is deeply rooted in uploaded digital content you have personally created, you may want to consider protection under the Copyright Act.
For personal brands that are built on a recognizable name or logo, trademark protection may be an avenue to consider. Both State and Federal protection through the United States Patent and Trademark Office (“USPTO”) are available for personal brands seeking trademark protection. Each may have their pros and cons for registration in certain circumstances. Federal Trademark protection will generally offer stronger rights and is the more preferred method of registration. Federal Trademark Protection arise under the Lanham Act, 15 U.S.C. §§ 1051 et seq., which provides a system of registration for Marks that are (1) distinctive and (2) used in commerce. An Applicant can still apply, if they have a good faith intent to use the Mark and begins to use the Mark within a certain time of filing. See 15 U.S.C. §§ 1051, 1127. Even though there is a requirement that the Mark be used in commerce, this does not require a traditional store filled with merchandise. In fact, even the offering of services such as entertainment services and providing a website featuring a blog can receive Federal Trademark protection.
Historically, celebrities, professional athletes, and clothing designers sought trademark protection for their names in association with the goods or services they offered. For example, there are more than twenty-five registered marks with the term “Betsey Johnson,” a popular clothing and accessories designer and the term “Tom Brady” has been applied for forty-six times by TBD TM, LLC since March 2022. With the recent addition of Name, Image, and Likeness (NIL) protection for non-professional athletes, the last year or so has seen an influx of new Trademark Application filings for names of non-professional athletes. There are certain requirements, including having the consent of the living individual to file with the USPTO under 15 U.S.C. §1052(c), for all public figures or brands that use personal names for their branding. As a start, looking into trademarking your brand will provide a level of protection for your name.
Starting the process of protecting your personal brand early is important, as the typical time to secure a Federally Registered Trademark or Copyright may be upwards of one (1) to two (2) years. With the speed of social media, instant downloads, and the quickness that damaging infringement may arise, it is important that content creators and influencers begin the process of personal brand protection early.