February 05, 2020 Feature

Virtual Influencers: Stretching the Boundaries of Intellectual Property Governing Digital Creations

Sonia M. Okolie

©2020. Published in Landslide, Vol. 12, No. 3, January/February 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

The recent surge of social media has given rise to influencer marketing and the ubiquity of social media influencers (i.e., individuals thought to affect others’ purchasing decisions via their specialized knowledge and/or preexisting relationship with a relevant audience).1 Depending on their follower count, content format, and social media platform, a single influencer may command the attention of millions.2 Recently, however, some brands have begun employing virtual influencers—computer-generated personalities designed to promote their products and services.3 This new wave of influencer marketing raises a host of legal issues. This article will explore the mechanics, purpose, and impact of virtual influencers. It will then consider right of publicity issues inherent in attempting to protect the likeness of nonhuman characters in a virtual environment and survey related copyright issues. This examination of the world of virtual influencers reveals there are ripe legal considerations lying just below the surface.

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