I’ve had the pleasure of working in the influencer marketing industry for more than a decade. (You know, when we didn’t yet call it influencer marketing.) The blogging and influencer industries have grown by leaps and bounds since then. Five years ago, when Businessese was formed, our goal was to give bloggers a place to find reliable legal templates.
Over the next few weeks, I’ll be looking at the legal needs of particular types of businesses. Today, I start with my roots: bloggers and influencers. So if you’re a blogger or influencer, listen in as I guide you on the necessary steps that you, specifically, need to take to protect yourself and your business. We’re covering starting your business, protecting your website, working with brands, protecting your content and brand, and so much more.
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In this episode:
[03:52] – What legal entity should bloggers and influencers be? Danielle discusses the pros and cons of the two most common options.
[07:16] – Terms and conditions act as your contract with those viewing your site.
[07:42] – If you’ve ever visited a website like WebMD, you’ve seen a disclaimer before. Is this something you need on your site?
[08:45] – Content sponsorship has drastically changed in the last decade, for the better. Danielle reviews two common ways you may work with brands.
[10:03] – What do you need to be aware of when working with brands? What do you need to know about FTC compliance?
[10:50] – Danielle talks about protecting your business and brand with trademarks and copyright.
[12:22] – If you offer digital products or services, you have a couple of other policy considerations you may want to put in place.
[14:28] – Here’s what you’ll need to know and implement as you build and grow your team.
[15:44] – Keep these questions in mind as you complete your actions steps for today.
Links & Resources:
- Blogger Legal Guide
- Legal Templates for Bloggers and Influencers
- Episode 31: “Website Accessibility”
- Liss Legal
Welcome to the Simplifying Legal podcast, brought to you by Businessese. I’m your host, Danielle Liss.
Many years ago, someone told me I was the least lawyer-y lawyer she’d ever met because I helped make legal easier to understand. To this day, it’s one of the best compliments I’ve received in my professional life.
If you've ever felt legal was too scary, too overwhelming, too complicated, or just plain incomprehensible, you're not alone. The Simplifying Legal podcast was created to help.
In each episode, we’ll do a deep dive into a legal topic and give you concrete next steps so you can apply it to your business.
My goal is for you to walk away from each episode thinking, oh, that was easier than I thought it would be.
Let’s get started.
Hey there, I’m Danielle. Welcome to episode 32 of Simplifying Legal for Small Business Owners. With this episode, we’re diving into a new series. For the next few weeks, I’ll be doing an overview of the legal needs of a particular type of business. Think of it as a legal checklist of sorts.
We’re starting today with legal bloggers and influencers. Prior to our launch in 2015, one of our goals at Businessese was to give bloggers a place to get reliable legal templates. Of course, the business has morphed a lot since then and we now work with many types of businesses. But, it felt right to get back to our roots and start with legal for bloggers.
Disclaimer: As always, before we get into today’s topic, a quick disclaimer. This podcast is meant to provide you with legal information only. It’s not legal advice and does not create any type of attorney-client relationship between us. Please don’t take any action without consulting your lawyer first.
I can’t believe this is true, but it’s now been more than a decade since I started speaking at conferences for bloggers. (For any old school bloggers listening, I have a very special place in my heart for Bloggy Bootcamp, which is where I got my start.) In those early years of monetizing blogs, my talks usually revolved around legal basics for bloggers. Today’s episode reminds me of that, but it’s incredible how much has changed as the industry has grown. When I did the talks before, I used to break it into categories based upon legal activities, like LLC formation or website policies. We always spent a lot of time on contracts since sponsored content was relatively new and the field was changing quickly.
So, this series is inspired by those early talks, but of course, things have expanded beyond blogging. I decided for this series, the easiest way to organize the information will be to categorize it by the types of actions you take in your business.
There’s a lot of information and a lot of resources to tag. To make things easier, I created a PDF with some general information on each category, as well as a list of resources that you can consult. You can download the resource guide at Businessese.com/bloggerlegalguide.
Okay, now let’s talk legal for bloggers and influencers.
Starting Your Business
First, let’s talk about starting your business.
Starting a business is so exciting, but there are so many things to do. For some bloggers, your business may start out as a hobby that has slowly morphed as you’ve grown and monetized. For others, you may intentionally start a blog as a business and consider revenue from the earliest steps.
On the legal side, a question that comes up frequently as bloggers and influencers start a business is what entity they should be. The most common options are sole proprietor and limited liability companies, which are typically referred to as LLCs.
When you are a sole proprietor, it usually doesn’t require a lot of paperwork, other than possibly obtaining a business license. As a sole prop, you and your business are considered the same entity. This is easy, but it could expose you to the possibility of personal liability in the event that something goes wrong.
For those who want to avoid that potential liability, an LLC may be a great option. This does require more effort and expense than having a sole proprietorship.
You have to file official paperwork to form your LLC, typically with your secretary of state’s office. This will also involve naming a registered agent, which is someone who can accept service of process if your business is served in a legal action. You should also have an operating agreement for your LLC, which is the document that governs the business. This is especially important if you have more than one person starting the business.
After the company is formed, you’ll need to be careful to keep your personal assets separate from those of the LLC. Since the LLC is a separate entity from you personally, unlike a sole proprietorship, it’s key that you treat it like a distinct and separate entity, or you could reopen the door to the potential for personal liability in the event something happens.
Many bloggers will set up an LLC either when the business is formed, or when they start making money or entering into contractual relationships. For those who wait, it’s often the desire to protect themselves from liability as the business grows.
Protecting your website
Next, I want to talk about your website. If you are a blogger, your website is the foundation of your business. We talk a lot about website design, branding, SEO and the technical side of the blog. But, it’s also extremely important to make sure that you have considered the legal side of your website.
For most blogs, you should have a few key legal policies.
Depending on your audience, you may have other requirements for your privacy. These are often based on the domicile of your audience. The General Data Protection Regulation, which is commonly referred to as GDPR, provides certain rights to those in the European Union. The California Consumer Privacy Act, also known as CCPA, covers websites with certain amounts of traffic from California residents.
Terms & Conditions
The next important policy for your site is terms and conditions. Think of your terms and conditions as your contract with your audience on how they can use your site. Often, these terms will include things your audience can do with your content, things they can’t do, intellectual property notices, licenses regarding user-submitted content, and other legal terms. It’s an important document to add.
The next policy you may want to consider to protect your site is a disclaimer. If you’ve ever visited a website like WebMD, you’ve definitely seen a disclaimer in action. It’s there to protect the business from liability for the information they publish. For example, Web MD might have a disclaimer stating that the information is provided for informational purposes only and to contact your doctor. It will then state that they aren’t liable for how you use that information.
The last policy that you may want to include is an accessibility statement to show your commitment to providing an accessible website. Check out episode 31 for more information.
Working with Brands
As your business grows, working with brands is usually something most bloggers and influencers do.
In the decade plus that I’ve been working with bloggers and influencers, sponsored content has changed so much, in a good way. Now, there are more industry standards, so bloggers can approach their brand work with a lot more knowledge. And, of course, brands now see the immense value of sponsored content, which wasn’t always clear when things were getting started.
There are two common ways to work with brands, affiliate programs and sponsored content.
As an affiliate, you receive a commission for sales that you refer to the brand. Be sure to read the terms and conditions carefully. Understand how your referrals will be tracked, what your commission will be, and when and how you’ll be paid.
If you are doing sponsored content with a brand, please get it in writing. There are so many important components to these agreements, like the ability to terminate, confidentiality, ownership of your work product, exclusivity and more. Check out episode 20 for a deep dive on what you should have in your sponsored content agreements.
For any type of work with brands, you need to be aware of FTC disclosures. Both affiliate links and sponsored content need appropriate disclosure to be compliant with the Federal Trade Commission’s rules about endorsements. The goal is to ensure that any material relationship is disclosed in a clear and concise manner.
Many brands will have something specific in their agreements regarding how you should disclose. For some, it is #ad or #brandpartner. Others prefer natural language.
An affiliate should state that they are an affiliate and may receive a commission if the viewer makes a purchase using their link.
Protecting Your Content and Brand
Next, let’s talk about protecting your business and the brand that you’ve built. Yup, it’s time to talk about intellectual property.
For most bloggers and influencers, the most important types of intellectual property are trademarks and copyrights.
A trademark is something that identifies your brand as the source of a product or service. It can be a word or phrase, a logo or symbol, or your company name. It can be anything that helps distinguish your brand in commerce.
If you are using a distinctive name for your blog or your other products or services, I strongly recommend that you consider whether it is time to apply to register a trademark with the patent and trademark office.
If you register your trademark, it gives you the exclusive right to use that trademark for the types of goods and services that you offer.
Talk to a lawyer to see if this makes sense for your business.
Next, let’s talk about copyrights. Understanding copyright law is extremely important for bloggers and influencers. First, you need to make sure that none of your content infringes on someone else’s copyrighted content.
Additionally, all of your original work, whether it’s your written posts, images, or videos, may be eligible for copyright protection. This means that you have certain exclusive rights in content, like the right to display or sell the content.
Ownership of content comes up frequently in sponsored content agreements, so it is an extremely important area to learn about.
Adding Digital Products
As your business grows, you may add digital products, like an ebook, printables, or a course. This can also include freebies, like lead magnets, which are really an ebook that you are offering for free in exchange for an email address.
First and foremost, ensure that you are including a copyright notice on the content. This is the copyright symbol and your name. This puts viewers on notice that you own that content.
You will also want to have terms for your digital products. For many bloggers, this means that they add to their website’s terms and conditions. If money is being exchanged, you should include a purchase policy that discusses refunds and any other important information regarding the purchase.
Additionally, if your copyrighted content is being purchased, your terms should discuss how the purchaser can use that content. This is part of copyright law and is referred to as a license. You are giving them a license to use your materials, so get clear about what they can and can’t do. For example, you may state that a purchase is for personal use only and that you are not providing a license to any other rights.
Some content creators also want to ensure that their content itself is more clearly labeled with some of their key terms. I love this idea and think that adding a copyright notice, information about usage and any necessary disclaimers is an excellent option.
And, if you need a template for this, we do have one in the shop. Check out the link in the show notes.
Offering Freelance Services
For some bloggers and influencers, your business may also grow to add offering services. I know a lot of food bloggers who become well known for their photography and become freelance food photographers. Or, you may find that you are great at creating compelling recipe videos. Or, you write really great copy.
If you add a service to your business, make sure you have a solid contract. It should cover the type of services you are offering, discuss rights and any other important terms.
Building Your Team
The last thing I want to discuss today is building your team. I absolutely love hearing when bloggers and influencers have grown and they need more people in the business. You may start with a virtual assistant, but then it might be content contributors, social media managers, Pinterest managers, or other roles.
When you’re hiring, first, you will need to know whether you’re hiring for a contractor or employee role. If you plan to hire an independent contractor, be sure to check your local laws regarding contractors as they are not the same everywhere.
If you aren’t sure if you should hire a contractor or employee, I’ll link some articles in the resource guide to help you make a determination. I do always recommend talking to your accountant if it is time to start hiring employees.
And, as with most things, it is key for you to have an agreement between you and your team members. And, this is important, make sure the agreement fits the role that they are in. I’ve seen a lot of people try to use a more generic independent contractor agreement, but it might not make sense for all roles. We have a number of agreements in the shop that you can look at. The agreements for VAs and content contributors are very popular for bloggers whose businesses are growing.
This wraps up our overview. Now let’s talk about today’s action steps.
- First, do you have a set business structure? Take any steps needed to tie up any loose ends.
- Next, do you post sponsored content? Do you have a brand agreement that you can use with brands or as a template for negotiations? If you need one, I’ll have a link in the show notes for templates for bloggers and influencers and you can check out the sponsored content agreement.
- Next, have you protected your intellectual property? If you haven’t, consider whether or not you should trademark or copyright any aspects of your site.
- Next, has your business expanded to add services? If so, make sure you have an agreement for your clients. This is especially important for creatives as copyright ownership often comes into play.
- Next, have you hired team members? Do you have an agreement for those team members? If not, you know that I’m going to recommend that you get one.
- Last, as always, if you have questions on any of these aspects of your business, please talk to a lawyer. If you aren’t sure where to start, I do offer strategy sessions through my law firm, Liss Legal and I’d love to talk with you more. I’ll include a link in the show notes.
Thanks for joining me for today’s episode. In the next episode, we’ll continue this series and we’re talking about legal for virtual assistants. Remember, you can download a PDF with resources at businessese.com/bloggerlegalguide. There’s a link in the show notes.
I’d love to connect with you outside of the show. Visit Businessese at businessese.com. To find show notes for today’s episode, visit businessese.com/podcast.
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