The Complete Legal Guide for Professional Bloggers
As content creators (aka bloggers), we make our living on creating original photography, writing and even videos. These are our most valuable assets and you should always have a legal plan in-place to protect them. Just because we share our content on the internet and social media, that doesn’t mean that it’s free for anyone to use.
My father is a retired attorney and I asked him to help me put together a comprehensive legal guide for professional content creators. Most bloggers operate on a shoestring budget and don’t have the resources to hire legal professionals to assist them with things such as writing contracts. But the good news is that you can take many precautions on your own.
I know it sounds far-fetched but I personally know bloggers who have gone to court over content copyright disputes. And I’ve seen many occasions where bloggers have had their work stolen and used to profit others.
This guide covers three main topics - contracts with brands, disclosures and content copyright.
Contracts
Content creators must always have a contract signed with a brand before they begin any work. If the brand is not able to provide you with an pre-written template, make sure to create your own and have a brand representative sign and date it.
Things to Know & Consider in a Contract
Contracts should be specific as to Who, What, When and Where.
Know who are the actual parties to the contract.
Are you contracting with the Brand itself or with an Agency?
What legal entity is your actual contract with? Make sure you put the exact legal name of the company in the contract. You may think you are contracting with Amazon, but you are actually contracting with Amazon.com, Inc. So, get the name right. In this regard, the Brand or Agency may have several legal companies. And you may be communicating/dealing with one of their companies but your contract may be with one of their affiliate companies. If you are unsure on this point, find out what entity will actually be paying you. That will be a good indicator.
Timeline of the Terms of the Contract
When will your contractual relationship start? When will it end? Be specific. Does the Brand/Agency have an option to extend it? If so will they have to pay your extra money to do so? Is there a limit on the length of the extension? Are you foreclosed from working for competitors during this term? And for a period of time after the end of the term? These are all considerations when determining the Term of the contract.
The Deliverables of the Contract
What actually are you contractually obligated to deliver to other party? Is it a blog post? If so is there a word requirement or range? Are photos and/or videos to be included? If so, how many? Is it to be only posted on your blog website? Or to also be published in some form on social media platforms? If so which ones? Instagram, Pinterest, Twitter, Facebook, etc. Are there required imbeds for your post, links, tags, hashtags etc. If so make sure those are identified.
Does the Brand/Agency have rights to review and revise the blog post? If so is there a limit on their number of reviews? Is there a time limit on how long they can take to complete a review/revision? Who specifically at the Brand/Agency has the final say on revisions? If so, make sure you get their sign off. What happens when there is a deadline for the deliverable and the delay in review/revisions causes the deadline to be missed? Make sure you are paid under the contract under such scenarios.
What if the Brand/Agency cancels the assignment in mid-stream, while you are working on the initial draft, or after you have submitted an initial draft. And they claim that you didn’t provide the Deliverable so they are not going to pay you. Make sure that the contract includes payment to you for such a mid-stream, premature cancellation by the other party. In legal terms, this is called Liquidated Damages.
Make sure the amount specified is enough to compensate you for preliminary work and time spent on the initial draft. Make sure it also accounts for out of pocket expenses such as amounts paid to outside vendors such as photographers or videographers. And also make sure that you are covered for any required travel costs.
Location of Where Your Contract is Being Created
.Is the Brand/Agency requiring that your photo shoot be done on Kaanapali Beach in Maui specifically? Or would a similar tropical beach be acceptable? If so who determines what is an acceptable substitute? Make sure that is confirmed in writing before paying for tickets, etc.
If possible, it is better to have attachments to the actual contract that specify such things as reimbursable expenses, rather than have such issues discussed/addressed in emails or texts. In the latter you run the risk of the other party claiming that the person who seemingly authorized the expense in an email was not authorized to do so.
How to Deliver Your Content
Also make sure that you have specified in the contract where your content is to be delivered. Is it to be uploaded to a specific Google Drive. Uploaded to a specific Drop Box account etc. Sent as an email attachment? Note this required place of delivery is very important when there is a tight deadline on the contract. You need to prove that you provided the Deliverable to the Right Location, in a timely manner. And that can be proved by a time stamp, e.g. day/time uploaded.
Nail Down Payment Terms in Your Contract
Don’t be afraid to get in the weeds and be very specific about payment. Which company will be paying you? The Brand if they are the other contracting party? The Agency on behalf of the Brand even though the Agency is not a legal party to the contract? A Third-Party Bill Payment Company? Does someone at the Brand/Agency have to approve your bill before it can be processed for payment? If so, Who specifically? When will you be paid? Net 30, Net 60, Net 90? When will the clock start for payment? When they receive your invoice? Only after it has been approved by the person at the company dealing with your Account? When it has been processed by their AP department? If so is there a limit on how long AP can take to “process it”. How will you be paid? Check, ACH to your designated account, wire transfer? If they are late on payment are they required to pay penalties and/or interest? If so specify the amount/rate in the contract.
Contracts Need to be SIGNED by All the Parties
There are many ways to logistically have contracts signed. The most efficient involves Electronic Signatures. There are many companies that provide such electronic contract services. You can also email them the contract. Have them sign it, scan and send it back to you. Then you sign your part, scan and send it back to them. The same procedure can be done by Fax. Contracts can also of course be signed in face to face meetings, and by snail mail. But all of these alternatives are more cumbersome than Electronic Signatures. Make sure that Fax, Email and Electronic Signatures are listed as approved methods of securing signatures/execution of the contract.
If terms change after the original contract has been signed and work commenced, then, to the extent possible, do quick written amendments, and have those signed by the parties. Having a simple contract amendment form handy is always a good idea. That allows you to document agreed changes. Lest the other party later claim that they never agreed to such a change.
Note that there may be a legal argument that a series of email exchanges between the parties, can make or amend a contract. But it can’t be counted on as contracts must contain specific legal elements to be in force.
To the extent possible you may want to list your own states’ laws as the law governing the contract. And that the jurisdiction for handling of a lawsuit arising from the contract be vested in the courts of your own state. This could provide you with “home court” advantage if you ever had to sue to recoup your payment on the contract. More importantly, it may provide an incentive to the other party to just settle your claim, especially if the Brand or Agency is located in another state.
Guide to FTC Disclosures
If you have, or will receive compensation, in terms of cash or merchandise from a sponsoring Brand for a review, recommendation or feedback then that needs to be disclosed in your post. And it can’t be buried at the bottom in small print. There are specific requirements regarding the placement and size of the disclosure. See below for more details in that regard.
This includes requirement of disclosure of affiliate links that may result in payment.
These disclosures relate to Federal Trade Commission (FTC) regulation of commerce. In wake of the Fyre Festival fiasco, these FTC requirements have become more widely known. Arising from the Fyre Festival fall out, the FTC issued advisory letters to social media influencers, and to the Brands and Agencies hiring them regarding their responsibilities under the law. They referenced The FTC Endorsement Guides: What People are Asking. It would be a good idea for bloggers to get a copy of this Guide and familiarize themselves with its rules on marketing, including blogging and social media posts. A summary of key comments from the FTC are listed below:
If there is a “material connection” between the social media influencer/blogger and the Brand (Marketer), that connection should be clearly and conspicuously disclosed in your endorsement.
A “material connection” is a connection that might affect the weight or credibility that consumers give the endorsement. It can consist of a business or family relationship, monetary payment, or provision of free products to the endorser.
Unless the connection between the social media influencer/blogger and the Brand is already clear in the post, the blogger should make a “clear” and “conspicuous” disclosure. The placement should be before the More button on Instagram, and also before the listing tags, links, or hashtags at the bottom of the post.
Guide to Content Copyrights
Content Copyrights on Your Original Work
This blog post will address two different scenarios with respect to Content. The first is where you create your own original content, be it the written word, a photo, video, graphic or artist rendering. You generally have a right to protect others from copying and publishing your work without your permission. That is what is known as a copyright. Generally, that copyright lasts for the life of the author plus an additional seventy years. Once It expires then the content becomes part of the public domain. Once in the public domain others can copy and use it without your permission. If you created the content under a Work for Hire agreement, then you generally do not own the content. And the person that paid you to create it has the copyright.
It is a good idea to file with the US Copyright Office to have them issue you a written copyright over the content. That makes your ownership clear, and your ability to sue to enforce it easier. But even if you are not issued that piece of paper by the US Copyright Office, you still have ownership and rights related to the content, it is just harder to prove and enforce. If others want to use your content, then you can license it to them. That allows them to temporarily use your content with your blessing for a specified period of time and/or a specified use. Quite often brands will want such a license to use your original content which you used in your contracted post, such that they can use it in their own parallel marketing efforts/campaign. Make sure that the terms of this license are specified in the contract to ensure that you are adequately compensated for its use.
Generally, if someone wants to use your content then they need to pay you to do so, under a license, or get your permission to use it without charge. There is a Creative Commons license that you can provide for your content which makes it easier for others to use your content.
There are six different types of such a license, and they all at a minimum, require attribution to you as the original content creator. Finally, under the Fair Use Doctrine, others can use your original content without your permission under limited circumstances. Using the content in a criticism, comment, news reporting, teaching, scholarship or research activities may be protected under Fair Use. The smaller the part of the original content used then the more likely it will be considered Fair Use. For example, if you wrote a 1500-word blog, and they only cited 10 words from your blog in a comment or criticism, then the less likely it would be considered to be a copyright infringement, than if they had listed the whole 1500 words.
If someone posts your original content on a third-party platform such as YouTube, Facebook etc. then under the Digital Millennium Copyright Act (DMCA) you can send a written Takedown request to the platform to have them remove it. This is known as a DMCA Takedown. As part of this notification you have to specifically identify the material to be taken down, provide proof of a copyright on it, and indicate a good faith belief that it is not being used in an authorized manner. If the platform takes the material down in a timely manner after proper notification then the DMCA protects them against any actions from the copyright holder. This is called the DMCA Safe Harbor. Some believe that YouTube and others should be more pro-active and filtering out copyrighted material BEFORE posting it on their platform. But for now, the DMCA, after the fact takedown remains the only remedy to get unauthorized posting of your original content off of YouTube and other widespread platforms.
How to Legally Use the Work of Others
The second scenario under Content is your use of materials originally created by others. This is in effect just the flip side of what was discussed above. You can’t use someone else’s original writings, photos, videos etc. unless you have their permission, normally in the form a license.
If, however you hired them to create under a Work for Hire agreement, then you, not they, own it. Moreover, if they died a long time ago, then it may be in the public domain. So, you can use it without any prior permission. So, quote Shakespeare as much as you like. If you do get a license to use content from another creator, then they may limit the amount of time, or manner in which you can use it. The same can be said of your own right to limit the use of your original content by Brands and others.
Note that some authors and publishers have a rule of thumb as to when they will bring enforcement actions. They may only bring an action if you quote more than 10 consecutive words from their written work/blog etc. This is for logistical reasons. They may not have the time and money to bring an action against everybody that quotes less than 10 words from their work. Also remember that the Fair Use doctrine may protect such a limited citing of words from the original work, especially if it is put into the context of a commentary, criticism or educational presentation.
You should finally note that there have been circumstances relating to music, photography and art where the subsequent usage was considered transformative and therefore not a copyright violation. The definition of transformative involves many factors but has been successfully used by a painter (Richard Prince) who did a collage based upon the photos of another. It was also used by rap musicians (2 Live Crew) who used lyrics from the song , Oh, Pretty Woman, by a 60’s rock n’ roll artist (Roy Orbison) In both cases, they supplemented the original work with new material, and context, such that the new work was deemed by the court to be distinctly different from the original. Or in other words, the original work had been “transformed” into something new. Claiming that your use of another’s original work is “transformative” may be pretty risky. So, proceed with caution in that regard.
Royalty-Free & Copyright-Free Images
As the online creators community keeps growing, there are companies popping up that actually have photography that is legally free for anyone to use in their creative projects. In these scenarios the original photographer has essentially donated their work to the greater community. These images can be used for commercial and noncommercial purposes, you don’t need to credit the photographer or ask for permission to use them. The only restriction is that you are not allowed to sell the image or claim it as your own.
One of the most popular websites to find free modern high-resolution photography is Unsplash. This website has over 1.5 million photos available to download for your blogging projects.
