Social media has transformed the “nobodies” of the past into new “somebodies” who have influence over the online audience. Businesses do endorsement deals with these “influencers” to sell their wares. This brings up an interesting question: How do you put a value on the intellectual property (IP) associated with influencer marketing? In an interview with Forbes, Doug Bania and Brian Buss, who are both with Nevium Intellectual Property Consultants (San Diego), talk about this new phenomenon. They have developed new techniques, using internet analytics tools, to determine both the valuation and potential damages for infringement of influencer marketing. For example, they developed the “relief from pay-per-click” method, which is a variation on the “relief from royalty” method. In the article, they advise companies to identify and organize their IP early on—a simple Excel sheet providing the description of the asset and the date registered will do. Also, companies should never let employees register IP assets such as domain names, websites, and social media accounts with a personal email address or using their own name. “Sounds simple, but this can get very messy over the years if you don’t keep track of the details,” they say. When doing due diligence on a recent case, they found that the company selling IP assets it thought it owned didn’t legally own them at all.

Bania and Buss are authors of two chapters on valuation for internet IP infringement and defamation in The Comprehensive Guide to Economic Damages, 5th edition. They also recently conducted a webinar for BVR, Valuing the Misuse of Intellectual Property Online.