“Influencer” is a relatively recent job title. While social media has been around for a few years now, in its early stages it was used primarily to connect with friends or watch funny cat videos. But as we all know, times have changed, and now “Influencer” can be a lucrative title to have. That said, there are rules and legal aspects to familiarize yourself with before you invest in those ring lights and Instagram (or are we only using TikTok now) presets.
For starters, as an Influencer, you need to think of yourself as a legitimate business. While some of the Influencers we work with have their personal brand alongside other active businesses, they generally started with just the personal brand. Treating your personal brand as a business from day one will put you years ahead and likely save you thousands of dollars down the road.
What It Means to Treat Your Personal Brand as a Business
There are many categories you should consider when developing your personal brand into a business — here are just a few:
Forming a business entity that is right for you
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Deciding which type of entity is correct, such as a limited liability company, corporation, or even a nonprofit
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Having all of the proper agreements in place to cover this entity such as an operating agreement or corporate bylaws
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For an Influencer team, perhaps a joint venture agreement or other documentation of the arrangement
Setting up a business entity is key. This helps shield you and your personal assets from liability for things that happen while you’re acting as an Influencer. While having an entity doesn’t mean you can be careless, it provides a buffer of protection, and can also provide tax benefits.
Having contracts in place
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With brands you work with
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In any collaborations you do with other Influencers
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With contractors you hire to help you
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With clients as you start to grow into a product or service-based business
Ensuring your personal brand, product, and business names and logos are not infringing on the intellectual property rights of others
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Trademark clearance searches to help identify other trademarks that are the same or similar to yours
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Copyright-protected material exists in an abundance online — if you didn’t create it, you likely cannot use it.
There is no point in building a personal brand if you’re not sure whose trademarks you might be infringing with your own branding. Your social media handles may be protectable with trademark registration if certain facts are present, and your social media handle could similarly infringe on a business that already exists.
If you do not do a proper trademark search and clearance before you start developing your brand, there’s a good chance someone will send you a cease-and-desist and ask you to stop using your chosen name, logo, business name, or product names. Rebranding can be time-consuming and cost thousands of dollars. You should always clear your desired trademarks before you use them to avoid marketplace confusion. Once cleared, you should seek out federal trademark registration.
Working with other existing brands
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Get all your brand deals in writing
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Ensure you know what it is you’re agreeing to do in exchange for products or money
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Be on the lookout for who owns the content you create — it could be you, the brand you are partnering with, or some combination of the two
And don’t forget the FTC . . .
The Federal Trade Commission (FTC) guidelines for advertising, marketing, and endorsements as they apply to social media are no joke, and you can face severe penalties for failing to follow the rules. The FTC is concerned with consumer protection and ensuring that people’s buying decisions aren’t inappropriately influenced, and that their buying experiences aren’t negative or fraudulent. They are a government agency that does, in fact, monitor your social media.
Unfortunately, there can be a lot of confusion related to social media, brands, and promoting products or services. If you’re approached by a brand that either gives you a free product, or gives you a product and pays you, and then asks for you to post about your experience with that product, you must follow the FTC guidelines. You can check out the endorsement and advertising rules here.
The FTC Endorsement Guides require that any material connection between an influencer and the product or service they are posting about must be clearly disclosed — that is, you must tell the world you were given the product for free, paid to post, or somehow inorganically came in contact with the product or service in exchange for a social media post. How these disclosures are made can happen in a variety of ways. For example, on Instagram, the use of hashtags that say sponsored or paid advertisement is often seen as appropriate — particularly if paired with a statement within the caption from the Influencer regarding the connection. The FTC clearly stated that messages (posts, videos, etc.) that are not readily “identifiable as advertising to consumers are deceptive if they mislead consumers into believing they are independent, impartial or not from the sponsoring advertiser itself.” Other businesses aren’t allowed to mislead consumers in their marketing, so neither are you. Unfair or deceptive advertising is a no-go for you, the Influencer, as well as for the brand you are working with.
Further, the FTC isn’t the only one paying attention. Kim Kardashian (and a number of other celebrity influencers) was recently fined over one million dollars by the Securities and Exchange Commission for posts and statements touting a particular cryptocurrency and not disclosing that she was being paid to do so.
Bottom line: disclose, disclose, disclose, even if you are not sure it’s necessary.
Conclusion
To sum it all up, starting your career as an Influencer with a strong legal foundation is key. It might be a little more work (and money) upfront, but the time and resources it will save you as you grow are priceless.
For more information on this article and this topic, contact Shannon Montgomery.
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