Demystifying Influencer Laws: A Legal Guide for Content Creators

Andrey_Popov/Shutterstock, Remix by Caterina Cox

Believe it or not, the law applies even before you decide to “take social media seriously.” This should not come as a surprise because TLDR; it’s a lot, but we’ve got a lawyer to break down some of the more relevant laws for content creators.

Intellectual Property Law 

Intellectual property is the foundation of your creator business. Intellectual property is an area of law that governs what your rights are in the content you create. From that clever podcast name to a viral video, intellectual property law outlines your rights in those creative assets and how to protect them. By having a basic understanding of intellectual property, you will not only be able to understand how to protect your work on social media, but how you can leverage that as a business. You can learn more about that from this article

When it comes to copyright law, there seems to be a canon event that every creator experiences in their career–a brand stealing their content without their permission. Most creators can resolve this issue via a DMCA takedown or sending a cease and desist letter demanding payment. 

Advertising Law 

Ever wonder why creators include #ad or have random text overlays in their stories? The Federal Trade Commission Act (FTC) created a set of regulations specifically designed for advertisers and influencers to follow when creating content online, known as “Endorsement Guides.” These regulations outline the steps influencers and advertisers need to take to help their audience distinguish that what they see isn’t a run-of-the-mill organic post.

This body of law boils down to one simple question: is there a material connection? In other words, is the creator talking about gifted products or Amazon storefront recs, or attending a brand trip? (Creators who attend brand trips are required to include disclosures but rarely do).

If yes, then the FTC’s requirements apply. You’d be surprised to find out that a “material connection” is present even when you’re not working with a brand. So apart from your brand deal content, creators need to follow these requirements in other scenarios. We dive into more detail about the regulation requirements here and the recent updates here.  

Contract Law

For most creators, contracts are considered common law contracts because they are for services. That means most of your issues and the likelihood of your success will be defined by how courts in the state governing your contract will interpret your issue. Court cases are also a huge source of inspiration for certain deal terms. If you’ve ever seen an indemnification term or representations and warranties term, you will know what sort of court cases keep attorneys up at night. 

Contract law not only governs your brand deals, but also your contracts with service providers, team members, and your website’s terms of service. Each of these documents outlines your relationship, your respective responsibilities, and (hopefully) your rights and remedies if there is a problem. Without a contract, you are left arguing with the other side about what was agreed upon—and no one wants to waste their time and energy on that.

Check out: The Importance of Negotiations And Having An Influencer Contract

Business Law, not to be confused with contracts law 

Once creators begin to take social media seriously, a logical next step is setting up a company for their services. Business law generally defines the different company types future business owners can set up and the legal requirements necessary to keep their business in good standing. 

The benefit of doing this is it creates a legal barrier between your personal assets and business liabilities. This comes in handy in the event of a lawsuit or legal dispute where a company is looking to recover damages. Assuming a creator has followed all the legal requirements, then the company could only look to the business’s bank account and assets to recover money. However, if a creator is using their company’s money to pay for their personal Netflix account or pay for personal things (known as commingling funds) that’s a surefire way to undo that legal protection. You might as well have not formed the company. 

The most popular entity structure is a limited liability company (an LLC). Generally, a limited liability company in most states has the least amount of legal requirements to keep the entity in good standing. Some creators opt for a corporation, but that’s not to be confused with an S-Corp. An S-Corp is not a business structure, but instead a tax election. This is something that you decide to do with the help of an accountant. Your accountant would be the best person to tell you if this election makes sense, not a social media doodler walking you through the benefits. 

There’s also chatter about which state to set up your company (Delaware being a common state thrown around in the convo). For a majority of creators, it makes more sense to establish your company in the state where you live. To establish a company on your own, most states have a division of corporations or a secretary of state website that provides useful information regarding the filing requirements. 

Check out: Illinois Passed a Game-Changing ‘Kidfluencer’ Law. Here’s What You Need To Know.

Employment and Labor Law 

A lot of creators believe that designating a team member as a contractor automatically absolves them from employment law and labor law obligations. 

Most creators opt for an independent contractor model because they may hire freelancers or separate companies to perform discrete tasks or projects. Another added benefit is that it’s typically cheaper to do that instead of hiring an employee. As soon as you hire an employee, there are other legal requirements associated with that title such as providing benefits and unemployment insurance, among other things. Depending on that team member’s job functions and how they’re performing their work, they may *technically* be considered an employee. Misclassification lawsuits are a thing you don’t want to be a part of. 

Honorable Mention: privacy law 

Many creators operate a website, collect emails, and may even collect other personal information. Data privacy laws dictate how you are supposed to handle that information. There are federal regulations and even some states have enacted their own set of privacy laws. When you’re operating a website that means you should become familiar with them all (or consult an attorney to help).

Generally, if you have a website and you are collecting personal information, you are supposed to have a privacy policy. A privacy policy outlines how you are handling the personal information you collect and gives website visitors a mechanism to enforce their privacy rights. Otherwise, you may have to pay a hefty fine to a state or federal agency per violation. Keep in mind, each day you don’t have a privacy policy is considered a separate violation, so that can stack up! 

If you send emails: the CAN-SPAM Act and rules apply

Fun fact: The FTC also regulates your email list. Under the CAN-SPAM Act and regulations, you have to follow certain requirements such as providing your correct name and domain info, disclosing the sponsored content on your emails, and giving your subscribers an easy way to hit “unsubscribe.” You can check out this helpful guide by the FTC for more information.

The content discussed in this article is for educational purposes only and not to provide legal advice. Use of and access to this article does not create an attorney-client relationship between Curator Counsel PLLC and you. The material and information presented should not be relied upon or construed as professional advice. You should not take action based on this information without consulting legal counsel.

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