Legal Issues for Content Creators and Brands
Part 1: How to Protect Your Work as a Content Creator
As a content creator or as someone who works with a content creator, there are a number of ways to protect your work, yourself, and your intellectual property. Let’s dive in!
There are three standalone pages on your website you need to have:
You’ve likely seen a reference to this page on nearly every website you’ve visited, from Amazon to Facebook to the small website for your local mechanic. If you've done any work online or if you have a website of your own, you need one of these pages.
This is a standalone page, usually linked like at the very bottom (the footer) of your website. Essentially it is an agreement between you and the visitor to your site. This page is where you establish how people can use your website and it’s where you tell them what is allowed and what is not allowed with the content. You declare that you own all the intellectual property rights, that they cannot copy your work, and that they cannot download it and use it as their own. This allows you to preserve your own rights to terminate their usage if they violate your terms. This is also where you put your governing law. If you live in Colorado, you need to use Colorado law, that way if someone sued you over something on your website, you would not have to go out of state to defend.
The disclaimer is one of the more most important things you can have on your website. This is where you disclaim liability for the content and the way that your visitors take that advice and apply it.
The disclaimer acts as insulation in case you are sued based on the content you have posted. If you're blogging about legal terms, health and fitness, depression, mental health, or anything that people could get hurt with, this is important. Whatever it is that you are giving or saying, if you are doing it in a professional capacity, you want to protect yourself from liability by having these disclaimers.
There are many types of contracts and contract terms you should be aware of when selling your services to brands or companies:
Independent Contractors Agreement
Cancellation and Termination
If you’ve ever had a picture taken by a professional photographer, you might have signed one of these. Signing a model release means that the person in the photo agrees to assign full copyright use to the photographer of both their likeness and image. The owner of the image, the owner of the copyright, is the photographer, not the person in the image.
If you are taking pictures of other people to use on your website, you need them to sign a model release. If you are getting your picture taken by a professional and you want to be able to use those images in any additional capacity (such as video or business cards), then you need a model release that gives you the rights to the copyrights to those images instead of the photographer. There's a lot of back and forth happening with the use of images. This is important if you're making any kind of money from the images, especially images of others. If you have images of children, you need to the parent(s) sign on behalf of the of the child. These agreements are typically straightforward and simple. Generally, it’s a one-page agreement that states who owns the image what they can use it for. There are templates readily available that you could use, many of which are customizable to your situation and how you will be using the images
This is the basic contract for providing services and what you’ll typically come across if you're working with clients or brands. The Service Agreement outlines all the terms including what will be delivered, the payment terms, and the legal terms. It protects both parties and must be signed by both parties. Never feel bad about asking another party to sign a Service Agreement - it protects you both. It is professional, and you will not be seen as litigious, high-maintenance, or needy for insisting on one. It is the CYA of contracts.
Independent Contractor Agreement
This is a contract you need to use if you are hiring somebody to do work for you. For example, if you're hiring someone to do work as a social media manager for you, you will want to have this agreement place. Much like the Service Agreement, you want to make certain both parties fully understand and agree with the terms and deliverables in the contract. And, most importantly, make sure everyone’s name, company name, LLC name, websites, etc., are all spelled correctly.
Double check the start date the end date. You may add an option to renew if you're doing a long-term contract. How long is the term? Is it a year, at the end of the year, do you have an option to renew? Everything should be defined in their exact deliverables. It is okay to be very, very specific on these terms. You need to have exactly what you will be delivering or what you are expecting to be delivered from the brand perspective. If you're doing campaign work with a brand, how many photos do you need to produce? When do you post and what are the number of words in each blog post? Does this cover things that are unexpected? The more specific and detailed you can be, the better because memories change, and your memory is probably going to be different than the memory of what you agree to with the other person.
You need to know whether the brand or company is expecting you to be exclusive to them and to not work with other similar brands similar products. Exclusivity is not necessarily a bad thing, but you should be getting paid more for it. Because that means you could potentially be turning down other opportunities and other brand deals. So, while exclusivity is definitely not a deal-breaker, you need to be aware of how it might impact future opportunities.
As an example: if you’re promoting a sunscreen, are there now specific brands that you cannot work with or promote? Does it go beyond to all skincare? Is it all health and beauty? The extent of the exclusivity needs to be upfront, so you know exactly what it is that you are doing and you don't accidentally violate the terms of your agreement.
Cancellation and Termination
This defines who can cancel and what are the rights that you have if you choose to cancel such as whether there will be reimbursement. You may find that you proceed with a brand and later discover the brand stands for something that you realize you don't want to endorse. Can you get out of this? You need to have something built in that talks about how you can cancel and for what reasons.
This covers when you get paid and how. Payment Terms cover payment frequency (up-front, lump sum, or split costs) as well as method of payment such as EFT, Venmo, or PayPal bank transfer. You also need to know if you are expected invoice the brand or will they be sending you money. Will you be paid 30 days after the campaign launches or 90 days after the campaign ends? There is not necessarily a right or wrong way to do this but you just need to be aware of it.
Another thing to consider is how the price you are getting paid is determined. If it's not an upfront price that you are agreeing to you then you may be agreeing to a campaign where you are getting paid like per click, and then you need to know how you will be able to track those stats. If you're getting paid based on engagement, that is if you're getting paid based on something that's not just a flat dollar amount, all of that should be outlined in a contract.
This is required if there is any information that the brand gives you or that you should not be sharing for the duration of the assignment. Most of the Confidentiality Agreement is boilerplate. There will be dispute resolution and mandatory disclosures. You will likely see indemnification provisions in the agreement that state that you agree that you will hold the brand harmless for your actions. This means if the brand gets sued for something that you did you agree to indemnify them, and you will hold them harmless.
Be aware: Never agree to anything that you don't understand in a contract. If you do not currently have an attorney, you can retain one with minimal expense for small questions here and there. There are many attorneys out there that do influencer and brand deals. It is highly recommended that you always have an agreement in place when you are doing an any kind of campaign, even if it's only half of what was included above. If you have your deliverables and terms in your agreements will save both your time and your sanity.