Social media influencer was not a job title when I was growing up. Social media did exist, but it was used primarily to connect with friends or watch funny cat videos. But as we all know times have changed and now not only is “Influencer” a job title, it’s a pretty lucrative one at that.
But like anything in life, there are rules, and a lot of legal and business foundational aspects to familiarize yourself with before you invest in those ring lights and Instagram (or are we only using TikTok now) presets.
For starters, as an Influencer, you need to think of yourself as a legitimate business. While some of the Influencers I work with have their personal brand + other active businesses, they all started with just the personal brand. Treating your personal brand as a business from day one will put you years ahead and likely save you thousands of dollars down the road.
But why should you spend the time to ensure your brand is legally protected? I am glad you asked, let’s jump in.
Exactly what does it mean when I say treat your personal brand as a business
- Forming a business entity that is right for you
o A limited liability company, corporation, or maybe a nonprofit?
o Having all of the proper agreements in place to cover this entity such as an operating agreement or corporate bylaws
o Are you an Influencer team? You’re definitely going to want a partnership agreement!
- Having ALL of your contracts in place
o With brands you work with
o Any collaborations you do with other Influencers
o With contractors you hire to help you
o With clients as you start to grow into a product or service-based business
- Ensuring your personal brand, product, and business names and logos are not infringing on the intellectual property rights of others
o Trademark clearance searches help to find other trademarks that are the same or similar to yours so you know it’s time to differentiate!
o Copyrighted material exists in an abundance online…rule of thumb, if you didn’t create it you cannot use it!
- When you’re working with brands
o Get all of your brand deals in writing
o Ensure you know what it is you’re agreeing to do, and give the brand in exchange for the product and money
o Be on the lookout for who owns the content you create
– If the brand does what are they allowed to do with it after the deal is over?
o Stay FTC compliant with your posts!
– Always disclaim the relationship even if all you received was free product and nothing else!
How will having all of the above things covered before you get underway as an Influencer help you?
1. For starters, setting up your business entity even if it’s a simple LLC is perhaps the most important. This will shield you and your personal assets from liability for things that happen while you’re acting as an Influencer. A legal entity acts as a shield or cover and ensures that if someone is to sue you and win, they cannot take your personal assets like your home or your car. They’re only able to get to business assets. So if you happen to infringe on someone’s copyright, or you breach the contract you have with a sponsor, your personal assets won’t be at risk and that is huge.
2. The Federal Trade Commission (FTC) guidelines for advertising, marketing, and endorsements as it applies to social media are no joke, and you can face some pretty severe penalties for failing to follow the rules. The FTC is concerned with consumer protection and ensuring that people’s buying decisions aren’t inappropriately influenced, and their buying experiences aren’t negative or fraudulent in any way. They are a government agency that does, in fact, monitor your social media.
There appears to be a lot of confusion as it relates to social media, brands, and promoting products or services. If you’re approached by a brand that either gives you a free product, or gives you a product and pays you, and then asks for you to post about your experience with that product then you must follow the FTC guidelines. You can check out the endorsement and advertising rules here if you’re interested. But, I’ll summarize things for you a bit.
The FTC Endorsement Guides require that any material connection between an influencer and the product or service they are posting about must be clearly disclosed i.e. tell the world that you were given the product for free, paid to post, or somehow inorganically came in contact with the product or service in exchange for a social media post. How these disclosures are made can happen in a variety of ways. For example, on Instagram, the use of hashtags that say sponsored or paid advertisement is often seen as appropriate especially if paired with a statement within the caption from the influencer regarding the connection. The FTC clearly indicates in its Enforcement Policy Statement on Deceptively Formatted Advertisements, that messages (posts, videos, etc.) that are not readily“identifiable as advertising to consumers are deceptive if they mislead consumers into believing they are independent, impartial or not from the sponsoring advertiser itself.” Other businesses aren’t allowed to mislead consumers in their marketing so neither are you. Unfair or deceptive advertising is a no go for you the social media user/influencer as well as for the brand you are working with
3. Contracts? Yes! Having contracts in place with anyone you work with will dramatically reduce the number of issues you face throughout your Influencer career. If both parties are on the exact same page as far as money, what you are providing, what you expect from them, and so on, it will make the relationship that much easier. Your brand partners, contractors, collaborators, and maybe one day clients will know what to expect from you and this is so important! Detailed contracts can save your business. And yes, you as the Influencer should be negotiating every contract you’re handed from a brand or other Influencers don’t ever sign something in its first iteration without a good thorough legal review. This brings me to point 4…
4. As an Influencer, when working with a brand they are going to want to take ownership of all of the content that is part of the brand partnership. Generally speaking, that isn’t necessarily a bad thing. However, you have to be careful that the contract does not give the brand lifetime rights to your name and likeness. What does that mean? It means you could be signing a deal that allows that brand to use or sell your pictures forever with no more compensation to you. You may appear on an ad for a product you’re really not comfortable with but at the end of the day, it’s all contractually legal. I will stress this one more time please review your contracts with a representative before you sign.
5. And finally, there is no point in building a personal brand if you’re not sure whose trademarks you might be infringing with your own branding. Yes, your social media handles can be protected with a trademark registration if certain facts are present, and yes your social media handle can infringe on a business that already exists.
If you don’t do a proper trademark search and clearance before you start to brand yourself, there’s a good chance someone will send you a cease and desist and ask you to stop using your chosen name, logo, business name, or product names. And that can cost you thousands in rebranding. Whether you decide to register your brand or business name with the USPTO is a question for another day. But, you should always clear your desired trademarks before you use them to avoid marketplace confusion and worse, infringement. Trademarks are an incredibly nuanced area of law so don’t forget to check back in the coming weeks for more information on how trademark laws impact your career as an Influencer.
To sum it all up, starting your career as an Influencer with a strong legal foundation is key. It might be a little more work (and money) upfront but the time and resources it will save you as you grow are priceless.
If you want to grow your brand into the huge success it should be, get these things done before it’s too late! If you have questions or need help on anything you’ve read here feel free to reach out to us at shannon@montgomerypllc.com.
Please note that nothing in this post is meant to be legal advice. It is merely information provided in a general sense meant for educational purposes only. No attorney-client relationship has been formed unless or until you engage Shannon and Montgomery Law PLLC through signing an engagement letter.