Introduction

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. 

Episode Content

Hey there, I’m Danielle. Welcome to episode 37 of Simplifying Legal for Small Business Owners. Today’s episode is our last in this series and I’m discussing legal for social media managers. 

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. 

For this episode, I’m going to review different aspects of a social media manager’s business, like selecting an entity, working with clients, and building your team. 

Like all of the episodes in this series, 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/smmlegalguide. 

Before I get into the different areas, let’s talk a bit more about who this episode is for. Like many of the other categories I’ve discussed in the series, social media managers can do a lot of different things. 

From Pinterest management through Tailwind to managing multiple channels through Later or other apps, it can be a really broad range. But, generally, when I’m referring to social media managers, it is someone who is managing some aspect of social media for another business. 

Of course, there may be some overlap with other businesses, like virtual assistants or creatives. This is especially true if you are creating content that will be used on your clients’ social media channels. Because it’s a hybrid of these other areas, I thought we should cover it in a separate episode. But, of course, if you feel like your business is more accurately described as a social media VA, you may want to refer to this episode and Legal for Virtual Assistants. 

Okay, now let’s talk legal for social media managers. 

Starting Your Business

First, let’s talk about starting your business. 

Starting a business is exciting, but it can also feel overwhelming as there are so many things to do. In addition to so many other administrative things, on the legal side, one question that you should consider is whether you start an LLC, which is a limited liability company, or be a sole proprietor. 

When you’re 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. 

If you want to avoid exposure to potential personal liability, an LLC may be a great option. But, it is something to consider carefully since it requires more effort and expense than having a sole proprietorship. 

To form an LLC, you have to file official paperwork, typically with your secretary of state’s office. You will also name a registered agent, which is someone who can accept service of process if the LLC is served in a legal action. You should also have an operating agreement, which is the document that governs the LLC. This is especially important if you have more than one person starting the business.

After the LLC is formed, take care to keep your personal assets separate from those of the LLC. Since the LLC is a separate entity from you personally, 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.

Working with Clients

As a social media manager, your client relationships are the foundation of your business. You need to have a strong client agreement. Your client agreement is there to protect your business and to ensure that your clients understand exactly what to expect in the relationship. 

Here are just a few of the areas I recommend addressing in your client agreement: 

1. First, and most importantly, your agreement should have a detailed and specific scope of work that describes the services you’ll perform for your client. 
2. Next, make sure that your agreement explains how your compensation works. Is it a flat fee or hourly? If it’s hourly, how will you track and submit your time? If it’s a retainer agreement with a set number of hours or services each month, can unused hours roll over? Or will it be based on a certain number of actions per month, like a certain number of posts on a particular channel. The compensation should be very specific. 
3. Next, what happens if either you or your client wants to end the agreement? Some social media managers like to have a minimum time commitment in their agreements, as it takes some time to strategize and start to see results. If you have minimums, like three months, make sure the agreement is clear about this. 
4. Next, who owns the content that you create? Make sure you are clear about ownership. Because this is an important topic, I’m going to address this separately in a moment. 
5. Next, data security will be extremely important in your client agreement since you will likely have access to your client’s social media accounts. How will you use those logins? What happens if something is hacked? 
6. Next, your agreement should address whether or not you are guaranteeing results. Most social media managers do not guarantee performance. Instead, the agreement states that they will perform certain deliverables, but they can’t promise the results. This is particularly important if you are dealing with platforms where the algorithms seem to change daily. 
7. And finally, use your agreement to set boundaries with your clients. If you don’t plan to respond to things in an hour, make sure they know how to reach you and what your response times typically look like. 

Content Ownership

Now let’s talk about content ownership. This has been a hot topic with a lot of social media managers. Who owns the content that you create and post and how does this impact your pricing? 

I’ve heard a lot of discussion that it is “industry standard” that the social media manager owns the content they create, but I’m going to push back on this. I think it’s just as common, if not more so, that the hiring company will own the content, especially when they may be providing the stock images or other branded photography. 

But, let’s take a step back and talk more broadly about this. When I refer to content ownership, I’m referring to copyright law. If you are creating original content, you are potentially dealing with work that is eligible for copyright protection. 

The US Copyright Office defines a copyright as “a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.” In other words if your work is original and it’s fixed in a tangible medium, like a graphic or copy, it may be eligible for copyright protection. 

The creator of the work holds any copyright rights, which includes the rights to: 

• Reproduce the work; 
• Prepare a derivative work based upon the original work; 
• Distribute to the public by sale or another type of transfer; 
• Perform the work; and, 
• Display the work. 

The owner of the copyright can give some or all of these rights to others. 

There are typically three key terms to be aware of for your client agreement when it comes to content ownership in client agreements. 

1. First is Work for hire. Under this type of clause, your client owns the deliverables you create.
2. Next, is an assignment of rights. Under this type of provision, you assign all of your copyright rights to your client. This may be done for final approved versions or something you hold until the final payment is received. An assignment needs to be in writing, so, if this is your intention, it needs to be clearly addressed in your client agreement. 
3. And last is the license to your client. If you retain ownership of the copyright, but you allow your client to use it in certain ways, you’re giving them a license. For example, you may give them a license to display the content, but they can’t resell it. If you use this option, get specific about what the permitted uses are.

Be clear about content ownership. If you are creating branded Canva templates for your client and you don’t intend to give them access in the event that the agreement is terminated, please make this clear. I’ve seen a lot of disputes come up this way. Your client should know what they will own and how they can use it. 

Also, if you are using templates to create their content, and you don’t own the full rights, be extremely clear about this in your agreement so your clients know what they can and can’t do with the content. 

For anyone working online, content ownership is a really important topic. I recommend listening to episode 13, where I talk about the topic and give a lot of examples of language that you may use in an agreement.

Protecting Your Website

Next, I want to talk about your website. Depending on how you attract clients, your website may be an important asset within your business and it’s extremely important to make sure that you’ve considered the legal side of your site. Typically there are a few legal policies you should include: 

Privacy Policy

First, you should have a privacy policy. There are a number of laws that require a privacy policy and it’s important that your audience can find out what you are doing with their personal information. 

At minimum, your privacy policy should disclose what personal information you collect, what you do with it, who you share it with, and your cookie policies. 

Depending on your audience, you may have other requirements for your privacy policy. These are often based on the domicile of your audience. The General Data Protection Regulation, or GDPR, provides certain rights to those in the European Union. The California Consumer Privacy Act, or CCPA, covers websites with certain amounts of traffic from California residents. 

Terms & Conditions

The next important policy is terms and conditions. Your terms and conditions are 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. 

Disclaimer

The next policy you may want to consider to protect your site is a disclaimer. It’s there to protect the business from liability for use of the information they publish. If you talk about how doing certain things may help someone grow their business or make money, this is an important policy for you to include. 

Accessibility Statement

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. 

For many social media managers, templates for these types of website policies are an ideal solution. We do have a website policies bundle in the Businessese shop if you want to buy terms and conditions, your privacy policy and a disclaimer at a discount. 

Protecting Your Brand

Next, let’s talk about protecting your business and the brand that you’ve built. 

For many social media managers, the most important types of intellectual property are trademarks and copyrights. We’ve talked about copyright and content ownership, but let’s review trademarks too since it’s important in protecting your brand.

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 business or service packages, 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. 

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, year, and your name. This puts viewers on notice that you own that content. 

You will also want to have terms for your digital products, which can be added to your website’s terms and conditions. If money is being exchanged for your products, you should include a purchase policy that discusses refunds and any other important information regarding the purchase. 

Additionally, if someone can purchase your copyrighted content, your terms should discuss how they can use that content. This is part of copyright law and is referred to as a license. You’re giving them a license to use your materials when they make the purchase. 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. 

Building Your Team

The last thing I want to discuss today is building your team. You may start with a subcontractor to assist with your clients, but then it grows to encompass other roles too. 

When you’re hiring, 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. 

Remember, it’s important to have agreement between you and your team members. 

For subcontractors, you may want to exercise caution and ensure that you’re providing guidelines on how the subcontractor can communicate with your clients and if they can do any work for your clients in the future, if you aren’t involved. 

Action Steps

This wraps up our overview of legal for social media managers. Now let’s talk about today’s action steps. 

1. First, do you have a set business structure? If not, this is a good time to consider if you want to create an LLC. 
2. Next, are you using a strong client agreement? This agreement should help protect your business and set out clear expectations for your client. Make sure you have addressed content ownership since this is a section that can cause conflicts when a contract ends.
3. Next, do you have the website policies you need for your site? If you sell digital products, you should also ensure that you have clear refund and purchase policies. 
4. Next, have you protected your intellectual property? If you haven’t, consider whether or not you should trademark. 
5. 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. 
6. 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 of the Simplifying Legal Podcast. Please subscribe if you haven’t already. 

. Remember, you can download a PDF with resources at businessese.com/smmlegalguide. There’s a link in the show notes. 

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Thanks for listening and we’ll continue Simplifying Legal on next week’s episode.