Disclaimer: * This blog post is for informational purposes only. No attorney-client privilege has been formed.
When I first started my law practice representing creative entrepreneurs, I remember making it my mission to help bloggers in particular. I had a personal travel blog for a number of years called Legal Pearls of Joy, and already knew many of the legal concerns faced by content creators.
I know that many bloggers feel lost when it comes to understanding and negotiating contracts, protecting their image, and of course knowing how to turn their blog into a legally viable business. Starting a blog is easy but making sure you’re legally protected is a whole different story.
Let’s dive into how to legally protect your platform regardless of whether you just started, or you’ve been blogging for years!
Terms and Conditions
I remember my first blog ever, Legal Pearls of Joy. I was so excited to choose and design my blog theme, to select my brand colors, and to create my Instagram and Facebook accounts that I almost forgot the legal aspect of protecting my website. I knew that I had to make sure that I had a terms and conditions and a privacy policy in place.
What’s a Terms and Conditions, you may be thinking? Terms and Conditions (T&Cs) outline the policies of your website. It will inform users of what information is being collected and how it can be used by third parties.
For example, if you have affiliate links on your website, your Terms and Conditions (T&Cs) will notify users that their information might be collected for statistical purposes on a third party (the affiliate’s) website. It will also outline the consequences of users who abuse your website. T&Cs can also limit your liability in cases where errors are found in the content presented on your website.
Privacy Policy
If you collect any personal information from visitors (i.e. taking an e-mail address when someone subscribes to your newsletter), you are required to have a privacy policy that informs your visitors that their information is being collected. This privacy policy should include what type of information you collect, how that information is used, what third parties have access to that information (influencer or ad networks), how a person can opt-out of personal information being shared or stored, and the processing of payments made on the website (i.e. credit card information/PayPal). Your privacy policy should also be at the foot of your website.
General Data Protection
Overall, the point is to make sure that your website has both T&Cs and a Privacy policy. You may have heard about the recent General Data Protection Regulation (GDPR) that was passed on May 25, 2018. To summarize, the GDPR essentially requires anyone with a website to inform their site visitors about what information they’re collecting and to allow these visitors to either consent to or to opt-out of their information being collected and stored. This is why it’s important to have both the required T&C and Privacy Policy in place. I wrote an extensive blog post about the GDPR here. The point though is to make sure that your site has both of these policies. If you’re unsure about where you can get a lawyer-drafted terms and conditions and privacy policy, I custom drafted both of these agreements in my shop and package them as a bundle!
Limited Liability Company
Many bloggers who are able to monetize their blogs and Instagram accounts don’t realize that they’ve basically formed a business and don’t know how to protect their assets and how to protect themselves from liability. A limited liability company (“LLC”) is a type of legal business entity created to protect business owners from being personally liable for business debts and other liabilities of the LLC.
As a blogger, forming an LLC may be beneficial for several reasons. First, as explained above, an LLC protects your personal assets (think house, car, personal bank accounts, etc.,) from creditors. Second, forming an LLC allows you to open up a business bank account so that you don’t have to co-mingle personal and business funds. Lastly, forming a business entity makes you look more professional and it makes brands take you more seriously.
Although an LLC offers the most flexibility in terms of forming an entity, this may not be the best structure for your particular brand. If you’re looking for guidance on how to form an LLC and you live in New York, I’d be happy to advise you. You can contact me here.
Contracts
This is one of my favorite topics. I could talk about contracts all day because there are so many intricacies involved when it comes to understanding the different provisions of a contract. I plan to write an entire blog post on this.
As a content creator, it’s critical that you understand what potential rights you might be giving away when entering into a contract with a brand. For example, recently, a brand reached out to me and wanted to advertise my Instagram posts on all of their social media and email marketing platforms for an indefinite period without any compensation. This brand would essentially have the right to use my image and likeliness to advertise with no specified end date without compensating me for my work. Had I not read the contract carefully and understood the provisions, I would have given away my rights for free.
It’s also important to pay attention to when a brand does not give you a contract at all. As a content creator if a brand has not given you a contract, proceed with caution. It’s so important to have a clear understanding of what is expected of you and how your content is going to be used and distributed on their end. However, you can always provide them with an agreement of your own. You can find a contract template that I’ve specifically drafted for influencers to give to brands here.
Trademarks & Copyrights
I’m going to save these two areas of law for another post but want to mention them here briefly anyway. Trademarks and copyrights are both areas of law that are important to consider. Trademarks protect aspects of your brand like your blog logo or slogan. On the other hand, copyright law protects the actual written content on your blog itself.
In an effort to not write a novel, I’ve decided to write a separate post on both trademark and copyright law so that I can give these two areas of law the individualized attention they deserve!
** This is for informational purposes only. No attorney-client privilege has been formed.
