Agency and Nickname: Who Owns the Avatar?
A blogger signs a contract with an agency or advertiser. The document contains a standard phrase about the transfer of exclusive rights to content. The blogger signs and loses control over their nickname, avatar, and entire brand. This situation happens dozens of times a month. In this article, we will analyze how a license agreement with an agency works, who legally owns a blogger's nickname and avatar, and how not to lose the main asset — your own name.
The main threat: the clause on alienation of copyright
The most dangerous clause in a contract with an agency is the complete alienation of exclusive copyrights. If the contract states that you transfer all copyrights to the created materials (including videos, photos, texts) to the company, it means that the company becomes the copyright holder.
What does this mean in practice?
You no longer have the right to use the created content without the company's permission. The company can publish, distribute, modify, sell, and use the material at its discretion. It can prohibit you from showing the video on your page, using it in your portfolio, or even referring to it in future projects.
Many bloggers do not read contracts carefully. They see familiar words and sign. And then it turns out that they have transferred to the agency not only the rights to one video, but also to their nickname, avatar, logo, and corporate identity. Losing a brand with one signature is a reality, not a horror story.
Nickname and avatar as intellectual property objects
To understand who owns the nickname and avatar, you need to understand the legal nature of these objects.
A blogger's nickname is not just a set of characters. It is a means of individualization that works like a trademark, even if not formally registered. When an audience hears "Wylsacom," "TheBrianMaps," or "EeOneGuy," they know who is being talked about. The nickname becomes a brand that generates income.
An avatar is an image that can be a copyrighted work. If the avatar was created specifically for the blogger (by a designer, artist, or neural network at the blogger's request), it has an author, and this copyright belongs to the creator of the image, unless otherwise provided by the contract.
But there's a nuance. Even if you ordered an avatar from a designer and paid money, the copyrights by default remain with them, unless you have concluded an alienation agreement. You only get the right to use the image — a simple license. This means that the designer can sell the same avatar to another blogger or use it in their portfolios, and you won't be able to do anything.
For nicknames, the situation is even more complicated. The nickname itself as a set of characters is not protected by copyright. But it can be registered as a trademark. It is the registration of a trademark that gives the exclusive right to use a specific designation for specific goods and services. If the nickname is not registered, your rights to it are minimal.
Global precedent: the court on who owns the account
In January 2024, the U.S. Court of Appeals for the Second Circuit issued an important ruling in JLM Couture, Inc. v. designer Hayley Gutman. This case set the standard for determining ownership of social accounts in global practice.
The essence of the case. Hayley Gutman worked at JLM Couture as a wedding dress designer. In 2011, she created Instagram and Pinterest accounts under the nickname misshayleypaige, using her personal email and phone. The accounts contained both personal posts (family photos, travel) and work-related posts (advertising JLM dresses). Over time, the accounts gained millions of followers.
In 2019, Gutman blocked the company's access to the accounts. JLM sued, demanding that the accounts be recognized as company property. The trial court sided with the company, applying a special six-factor test.
The Court of Appeals overturned this decision and established a new standard. The main principle: the question of ownership of a social media account is resolved by the same rules as the question of ownership of any other property. The first step is to identify the original owner of the account. The second step is to find out whether ownership was ever transferred to another person.
The court explicitly stated: the analysis begins with determining who created the account. If the claimant is not the original owner and cannot confirm the chain of rights transfer, they do not own the account. The fact that the account was used to promote a business or that company employees had access to it does not change ownership. Extraneous signs (who "impersonated" the owner or who owned the email for login) are irrelevant for determining the original owner.
This decision is a powerful argument for bloggers who created their accounts themselves, without direct instruction from an employer. If you created an account with your personal email, from your personal phone, on your own initiative — by this standard, you are its original owner.
Another approach: control, use, and documents
In another high-profile case — Vital Pharmaceuticals v. Bang Energy founder — the court applied a three-factor test to determine ownership of social media.
The factors are:
Documented proprietary interest. A party can claim ownership if it has a contract documenting its rights to the account.
Access control. The party that has exclusive access to the account and can prevent others from accessing it can overcome the presumption of ownership.
Use. If neither party can confirm the first two factors, the nature of the account's use becomes decisive: its name, participation in product promotion, integration with marketing strategies.
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