Influencers as artists: when content is subject to the concept of art and how it is protected

The concept of art and its legal definition

The concept of art is a multifaceted and often controversial topic. Art can take many different forms and expressions, which often makes its definition complex and controversial. Legally, art falls within the scope of copyright law, which protects artists and their works.

In the legal sense, art is protected by copyright law, which grants certain rights to the creators of a work, such as the right to have their authorship recognized and the right to decide on the use and exploitation of their works. However, copyright law does not protect all types of content, but only those that are considered personal intellectual creations. A certain degree of originality and individuality must be present for a work to enjoy copyright protection. The duration of copyright protection is limited in time and varies depending on the country and the type of work. Within the term of protection, authors have the right to grant licenses for the use of their works or, if necessary, to take action against copyright infringement. It is important to note that copyright arises automatically when a work is created and no registration is required to claim protection.

Art in copyright law

The Copyright Act defines art as creations that are in the field of literature, science and art. This includes, for example, texts, music, images, films, but also digital artwork and other creative content. In order to be recognized as art in the sense of copyright law, a work must reach a certain level of creation. This means that the work must have a personal and individual imprint of the creator and not be a mere copy or imitation of already existing works. Works of art that meet these requirements enjoy copyright protection, which allows the author to determine the use and exploitation of his work and, if necessary, to enforce claims against third parties.

Influencers and the concept of art

In the digital world, influencers have established themselves as a new breed of artists who showcase their work in the form of photos, videos, texts, or other digital content. The question of whether and when content from influencers is subject to the concept of art depends on various factors. First, influencer content must be considered personal intellectual creations in order to enjoy copyright protection. The level of creation plays a decisive role here. Furthermore, it is important to what extent the content of influencers has artistic aspects. This can be the case, for example, if an influencer demonstrates special skills in the areas of photography, video production or text design and his or her content carries a creative, personal and individual touch. It should be noted, however, that not all influencer content is automatically considered art. Many posts by influencers are more commercial in nature, such as product placements or promotional collaborations. Such content generally does not meet the requirements to be recognized as art under copyright law.

In order to assess whether an influencer’s content is subject to the concept of art, it is necessary to consider each case individually and analyze the respective artistic characteristics and the level of creation of the content.

Art and the Artists’ Social Security Fund

The Künstlersozialkasse (KSK) is a German social insurance institution that supports artists and publicists in the areas of health, nursing care and pension insurance. In order to be recognized as an artist within the meaning of the Künstlersozialkasse, certain requirements must be met. In addition to the predominantly artistic or journalistic activity, the applicant must also earn his or her living primarily from this activity. Whether influencers are recognized as artists within the meaning of the KSK depends on the extent to which their activities are classified as artistic or journalistic and whether they meet the other requirements.

The artists’ social security contribution is a levy that companies in Germany must pay when they use artistic or journalistic services provided by self-employed artists or publicists. The levy goes towards financing the artists’ social insurance and is used to cover the artists’ social insurance contributions. In connection with influencers, the question may also arise as to which content is subject to the artists’ social security contribution.

When working with influencers, their reach plays an important role, as it plays a significant role in how effective the distribution of advertising can be. However, if influencers are commissioned solely on the basis of their reach to disseminate advertising for products or services, without any artistic or journalistic performance being rendered, the artists’ social security contribution is generally not due.

In the field of affiliate marketing, influencers recommend products or services via special affiliate links, through which they receive a commission if the referral is successful. Here, too, the question arises as to whether the artists’ social security contribution is applicable to such content. Since the content is primarily of an advertising nature and the artistic or journalistic performance is subordinate in most cases, the artists’ social security contribution does not usually apply.

It’s a different story with custom content that influencers create on behalf of sponsors. Here it may well be the case that the content represents an artistic or journalistic achievement, if, for example, special photographic or cinematic skills are brought to bear. In such cases, the artists’ social security contribution may be due, provided that the cooperation with the Influencer is considered to be the use of an artistic or journalistic service. Companies that commission such content should therefore inform themselves about their obligations with regard to the artists’ social security contribution and pay it if necessary.

Concluding remarks

In summary, content from influencers can be subject to the concept of art, provided it meets the requirements of copyright law and can be considered personal intellectual creations with a certain level of creation. With regard to the Künstlersozialkasse, recognition as an artist depends on various factors, such as the classification of the activity as artistic or journalistic and the fulfillment of other requirements. Each case should be examined individually to determine whether influencers and their content are subject to the concept of art and enjoy corresponding protection.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.