What Every Influencer Needs to Know About the Law

One of the first jobs I tackled when I began focusing on social media marketing in the mid-2000s was to arm wrestle with a room full of corporate lawyers about what a client could and couldn’t do on social media. Fortunately, I was working with attorneys who had an attitude of possibility, not risk-aversion. They tried to find ways within the rules and regulations to say “yes” rather than “no.”

Most influencers or content creators out there don’t have the advantage of a room full of lawyers on their side. And reading things like mandates from the Federal Trade Commission or legal briefs from cases that set precedent in legal matters is better than sleeping pills. So influencers need to know about the law, but don’t always have somewhere to turn for legal advice.

Jamie Lieberman is that somewhere to turn. She and her team at Hashtag Legal specialize in helping small businesses, entrepreneurs and influencers understand how the law affects them, their clients, content and beyond. We chatted recently about the ins and outs of FTC disclosure, intellectual property and even defamation, which Jamie brought up as an area of concern.

Even if you think you know how to avoid legal risk as an influencer or even what you need to understand as a brand or agency, reviewing the legal issues of the day is a good idea. Listen in to my conversation with Jamie Lieberman and share the episode with an influencer friend when you’re finished.

Jamie Lieberman can be found on LinkedIn. Hashtag Legal has a useful website and can be found on Instagram, Facebook and Twitter. Jamie’s podcast, The Fearless Business Podcast is online and available wherever you listen to podcasts.

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Winfluence Transcript – Jamie Lieberman – Hashtag Legal

Jason Falls
Hello again, friends thanks for listening to Winfluence – The Influence Marketing Podcast. Whether you’re a brand, an agency that serves brands or an influencer or content creator, your time in the influence marketing world will not be pleasant if you don’t have a good understanding of the legal implications of what we do. The Federal Trade Commission has disclosure standards, there’s a good chance you think you know what they are, there’s an even better chance you might be mistaken. But if you’re an influencer or creator, do you also understand the implications and ramifications of your content and intellectual property? Do you understand what defamation is and whether or not you might run the risk of committing it against a person a place or a brand in your content?

Jason Falls
Legal questions are seldom fun to discuss when you’re in the middle of content creation or campaigns, because they slow you down. I know at least on the brand and agency side of things, nothing kills momentum faster than a call from compliance. You can’t do that because of XYZ! One of the first things I ever did in the social media space was sit in the conference room with corporate attorneys and a big Fortune 500 company armwrestling over what the company could and couldn’t do on social networks on blogs, and the internet in the emerging world of social media. I was fortunate then to work with some really amazing attorneys, whose attitude wasn’t a blanket, “No, you can’t do that.” Instead, their attitude was let’s find a way within the rules and regulations to say, “Yes, you can!”

Jason Falls
Jamie Lieberman has made a name for herself doing just that with legal advice for small businesses and entrepreneurs and yes, influencers. Her firm Hashtag Legal is a great resource for all things related to the law for you content creators, and influencers out there. I asked Jamie to come on the show and give us a reminder of the main issues we need to be cognizant of. As we create content and engage with brands on the influencer side of the aisle, and what brands need to understand to work with creators on the brand side of the industry. We’re getting our refresher on IP, FTC and all sorts of other acronyms with Jamie Lieberman next on Winfluence.

Jason Falls
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Jason Falls
Jamie just to start us off, because I think this will present an interesting scope of the problems you solve. When you look at influencers today, whether it’s established ones who grew their following as social networks emerged or micro nano influencers who are trying to build something bigger for themselves. Even kids coming out of high school in college thinking that they can just YouTube and Instagram to earn a living. How much risk? Does the average influence person expose themselves to these days that they aren’t even aware of?

Jamie Lieberman
Oh, my gosh, I love this question. It’s a great way to start. I think the biggest risk is when influencers jump in without educating themselves a little bit. And the areas of law that you need to not be an expert in, but at least understand in this space are intellectual property. So copyright and trademark. And also an understanding of the FTC disclosure requirements is another great area that I think more people need to know about. And finally, I think people need to have a good understanding about what defamation actually is. And when that could be occurring. Because I think a lot of people throw those words around without a good understanding of what it is they actually are.

Jason Falls
Okay, let’s start there. What’s a good definition of defamation? What do people need to know?

Jamie Lieberman
So it varies state by state. So I think that’s the first big issue that people need to have an understanding of is that it, you need to understand where where you are and who you’re aiming at is. But understanding the difference, generally speaking between what’s in you’re presenting as opinion, and what you’re presenting as fact. And so and also understanding that whatever you are presenting and talking about making sure that it’s the truth, are some good basis for staying in the right lane.

Jason Falls
So your, your, what you’re saying is people on the internet need to fact check and until truths when they speak online, is that what I’m getting?

Jamie Lieberman
I know it’s radical.

Jason Falls
I don’t think we live in that world.

Jamie Lieberman
I know, I know. That’s why I get a lot of emails about defamation.

Jason Falls
I guess so. So let me let me ask you real quickly, I’ve got a ton of other questions to get into, again, to parlay off your first answer. FTC disclosure rules, my approach and my advice not being a legal scholar. But I think understanding the law and the I can read and interpret things fairly intelligently. My understanding has always been and what I’ve told people is the spirit of this, this law, and typically, it’s not so much here are the black and white rules, it’s Are you operating in the spirit of the law, at least in my experience, in the spirit of the rule, or the FTC disclosure statements, as always, you cannot recommend a product or service or tell someone to go buy something without disclosing that they’re paying you that they’re giving you free product, as long as you’re open and honest and transparent with folks, you should be okay. Now, that’s probably not the legal advice that you would give. But am I in the right ballpark there?

Jamie Lieberman
No, you definitely are. And that’s a great way to look at it. You know, the FTC is really concerned about the disclosure of what I’ll call a material connection. So what that means is not just money, it also means a family connection and employment connection, it also means a trade or when you receive something for free. So I think a broad definition of what a material connection is is also important. And making sure that that disclosure is not just a small footnote in you know, size for font, but that it’s in the FTC is where it’s clear and conspicuous. So I always like to look at it that my mom who has a flip phone, if she looked at your post or whatever you’re creating, would she know that there’s some kind of material connection? And if she would, then you’re probably okay.

Jason Falls
Very nice. Now you specialize in legal counsel for online businesses and influencer marketing professionals hashtag legal is is actually a law firm for the modern age. I think in a lot of ways. I know one of your focal points is helping regular folks understand legal ease, and legal ease type documents easier. As it relates to influencers. I wonder what the biggest oversights most influencers have and making sure their legal loosens are tied up might be.

Jamie Lieberman
That’s a great question. I think that it’s an for some reason, and in in many cases, and not all, there’s an aversion to contracts. And so just really having a good solid contract that you can use for your sponsored work or any consulting that you’re doing or whatever services you’re providing as an influencer, which actually are there’s a wide range of ways that influencers can monetize, but having a really good contract and making sure you understand what that contract means is a really good place to start and it’s well worth the investment. meant if you’re taking your business seriously and looking to grow, and frankly want to be taken seriously by some of the larger partners.

Jason Falls
Right? So I’ll offer up some guilt on this myself, I have in the past had a really good relationship with someone at a brand. They lob something over and say, Hey, why don’t you participate in xy campaign, and I’ll pay you $500, or whatever. And we’re friends. And it sounds fun and getting paid for just doing a post or two on social, great way to make the car payment. I’ve done it before and just, you know, passed on an email or a text message as sort of the documentation. My assumption is, you would strongly advise against that, even if the person is your friend, tell folks why even the friendly relationships need documentation.

Jamie Lieberman
So I think sometimes the friendly relationships need more documentation, because you’re so friendly. And when things go wrong, if they do, you want to be able to have a really clear place to go back to so there’s no motion involved in it. And I find that that makes a really big difference. So I will say that not everything needs a 15 page, single spaced contract. And there are certainly some instances where you could certainly create a more informal contract that would really protect the parties just fine. But generally speaking, having a contract is really what gives everybody both sides peace of mind, so that if someone, something does go wrong, you can refer back to it without having any kind of emotion attached to it, you can just say, Hey, here’s what the contract says this is what we signed, this is what we agreed to. And it’s pretty clear. So I think that that just takes out some of the potential pitfalls is agreeing upfront, and putting that in writing in a place that you can refer back to.

Jason Falls
Another issue, I think, is a murky area for folks is understanding who really completely owns your content, it’s not as simple as I created it, therefore, it’s mine, because of the terms of service and whatnot, of all these networks that you’re posting on. And certainly, when you’re collaborating with a brand ownership of the content, or at least licensing to us, it may be a part of the equation. So I’m not just pointing to lending your content or selling your content to a brand, but also, again, understanding the terms of service of the various social networks, what they can and cannot do with your content. What are those sort of funky quirks in terms of service that we admittedly probably never read? And we agree to when we sign up for these social networks, and then maybe get surprised by later, are there any that surface for you regularly that people just aren’t aware of, and go, Oh, crap, I didn’t know that.

Jamie Lieberman
Yeah, it surfaces, particularly on Instagram, and YouTube with the embed function. I think for a very long time, companies were just using that embed function to be able to utilize works that were created and posted on Instagram. So the ownership of the content is usually pretty straightforward. Unless it’s contracted differently. If you’re an independent contractor, or you’re a creator, and you create something as the individual who created it, you’re usually the owner. If you’ve contracted with somebody to create something called a work for hire, the individual who contracted with you would be the owner of the work that you’ve created. But and when you’re an employee, typically, anything created in the scope of your employment is considered a work for hire as well. So your employer owns whatever you’re creating. But let’s just say I’m a photographer, and I took a bunch of pictures. And as soon as I took those pictures, I owned the copyright to the images. If I post them on Instagram, I still remain the owner, but there are certain licenses for sharing that you agree to in the terms, same with videos on YouTube. And I think there’s a lot of fights as to what that looks like. And it’s actually being played out in the courts right now. So there’s some interesting things going on that haven’t quite been resolved yet, but it keeps changing. But one thing that is really important to bear in mind when you enter into an agreement with, say, a brand, like you are talking about to create content, is knowing what the ownership looks like, are you creating a work for hire? And if you’re not, and you still remain the owner of the work that you’re creating? Well, what license Are you granting to that individual who’s contracting with you? And so understanding what licenses how to read a license and what that looks like, I think is also really important, because there are some really broad licenses where you as the creator may continue to own the content, but you’ve basically given away all the rights to another entity, who is going to be able to do whatever they want with your content anyway, even if you remain the owner in name only.

Jason Falls
Right so and this is an area where I think a lot of creators and influencers maybe could use a little help in legal advice because if I am a photographer or I’m a videographer, or I create, you know, really fun, Instagram stories or whatever, and I create something that is not a work for hire, it’s my original content and I own it. But a brand comes along and you know, wants to share it wants to republish it, or something of that nature. Just like a musician, or just like an actor who, you know, is a union actor and portrays a part in a movie or a television show. A creator can literally say, look, you can use this, but there’s a cost for every time you use it. Now, I know that that’s possible out there for the world of creators. But I also know that if I’m a micro influencer, and I only have you know, 12,000 fans or followers, if I get into a licensing discussion, the brand I’m working with is just gonna laugh at me and say, nevermind, I’ll find somebody else. How do you think an influencer can start to introduce that conversation about licensing their content without appearing to be making a land grab for more money?

Jamie Lieberman
I mean, I think that licensing in particular is a really great monetization tool that not a lot of content creators, or creators in general, think about. And your reach in licensing doesn’t often even matter, because the license is usually for another party or person or company, to use something that you’ve created, and your reach may not matter to them. So I know this happens a lot in the travel space where some of these travel bloggers or, you know, travel influencers take these unbelievably beautiful pictures, right. And so the the destination, whether it’s the hotel or the place where they’re visiting, they want to use those images in their marketing. And it’s a great way for both travel influencer, whether they have a lot of followers or not can say, yeah, of course, you can use this in your brochure, or in a print ad. But this is what the cost is. And so it’s you should be monetizing and being paid for content that you create. When someone else wants to use it for their own marketing purposes, or whatever those purposes are. There’s, there’s absolutely nothing wrong with getting paid for that in money, not just exposure.

Jason Falls
So this question is probably going to make me look like I’ve put the cart squarely before the horse, and it’s as much an accounting question probably is a legal one. But I’d love your your take on this. Because I think it’s important to ask, at what point should an influencer or aspiring influencer incorporate get a business license from the state, set up a business checking account, and stop treating their work like freelance personal income sources.

Jamie Lieberman
So I’m of the mindset that if you’re creating a business, you should start a separate entity. It does a lot of things. But the biggest advantage to doing that is just a separation of your personal assets and your business assets. limiting your personal liability for the for the liabilities of your business is just a really sound decision to make. And I think it also gives legitimacy to a business when you create a separate entity. But it also gives peace of mind. Because if you have a lot of personal assets, whether they’re bank accounts, your car, your house, if you’re married, you have children, whatever the case may be, the last thing that you want is for something to happen in your business. And then all of a sudden, you realize, well, all of my personal assets are also at risk. So I think if you’re creating a business, whether it’s something that’s in addition to a full time job, or it is something that you do full time, creating an entity that’s right for you, you know, you obviously need to talk to both a lawyer and an accountant to make sure that you’re covered from a tax perspective. But creating an entity it It protects you and i think is just a really smart thing to do.

Jason Falls
Kind of a call back to the whole defamation conversation. If you don’t know what defamation is, and you ever do it in your job, you don’t want people to sue you and be able to get your car and your house and everything else. Right.

Jamie Lieberman
That is correct. Yes.

Jason Falls
So you also co host The Fearless Business Podcast, right? Tell us about that show?

Jamie Lieberman
I do. We talk about all the things in your business that many people are afraid of, like these topics. And we try to tackle them in a way to make it not scary, which is what I try to do with legal topics also. But we talked about lots of different topics related to sort of general businesses. Typically our listeners are in the service industry space, whether they’re creators, but we also have product based businesses that listen to us too. But we just try to tackle those issues with great interviews and just providing information that hopefully will be a little bit more accessible.

Jason Falls
Excellent. Jamie, where can people find you the podcasts, the website, the business online? Where can they connect with with you.

Jamie Lieberman
So my law firm is Hashtag Legal and you can find us at hashtag spelled out dash legal.com (hashtag-legal.com). We’re also on the social media networks. Instagram happens to be my favorite. So you can find us there hashtag spelled out underscore legal (@hashtag_legal). And we’re also on Facebook to and on YouTube, fearless business podcast is linked through my website as well.

Jason Falls
Awesome. We’ll make sure all the links to all those entities are in the show notes and really appreciate your help and your insight. I’m sure I’ll be calling you again when there are legal issues going on in the influencer space. I know somebody who can explain them in a way I can understand them. So we’ll be in touch but thank you for sharing your insights with us today.

Jamie Lieberman
Thank you

Transcribed by otter.ai

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