#035: What You Need To Know To Protect Yourself Legally as an Influencer With Danielle Liss
Today, my guest is Danielle Liss, lawyer and founder of Hashtag Legal, a law firm specializing in online business.
In this interview, Danielle and I delve into what you need to know to protect yourself legally as an influencer or blogger or online entrepreneur.
We talk about how to incorporate your business, how to negotiate with brands, what GDPR means, and even how to protect your goods from people who want to steal them!
Danielle is a font of knowledge, and she lays everything out in layman’s terms (no crazy legal jargon), so you will learn from and enjoy this interview! Promise!
Resources:
Table of Contents
Transcript – What You Need To Know To Protect Yourself Legally With Danielle Liss
[00:00:03] Welcome to The Blogger Genius Podcast brought to you by MiloTree. Here’s your host, Jillian Leslie.
Jillian: [00:00:10] Hello everyone. Welcome back to The Blogger Genius Podcast. Today, my guest is Danielle Liss and she is a lawyer. But the cool thing about her legal practice is she is a partner at a company called Hashtag Legal, and it is a law firm focused on the needs of influencers and online business owners, like bloggers.
Jillian: [00:00:36] I had seen Danielle speak at a conference a couple of years ago and she was so helpful at breaking it down, what people need to know who are starting online businesses. So welcome to the show, Danielle.
Danielle: [00:00:50] Thank you so much for having me. I’m really excited to be here.
Jillian: [00:00:53] So we were just talking just before I said, oh my gosh, we have to record this, about how the legal stuff for blogging and online business can give people headaches. It’s the last thing you want to think about. And you were just talking about how yes, your clients tend to be creative.
Danielle: [00:01:15] Yes. I think that what happens is oftentimes we go into blogging because it fills this creative aspect of our personality, whether you are a maker, a photographer, someone who likes to create with your words, whatever the case might be that is often why many people get into blogging.
Danielle: [00:01:36] I think it’s a smaller percentage of people who look at this and say this is a business opportunity. I’m going to go into this with my startup budget, hire all the right people who can handle the creative stuff, and I’m just going to run the backend.
Jillian: [00:01:48] In fact, I will tell you that now I think this is probably close to episode 40 that I’ve done, and almost everybody that I interview, who is a blogger, says that exact same thing, which is I started this as a side project or hobby or something, and only got it turned into a business.
Jillian: [00:02:06] I’ve only interviewed one blogger who from the get go, said this is a business. I’m going to hire people to help me. I know what I need to do. I’m going to invest my own money in this. So I think you are absolutely right.
Danielle: [00:02:21] Unfortunately I think, you know I shouldn’t say, unfortunately I don’t think that it is a bad thing. I can tell you I started blogging, let’s just say a long long time ago, and I don’t really write anything anymore. But I did it as a creative outlet when I was in law school. I needed somewhere to tell stories.
Danielle: [00:02:40] And so it started that way for me, and I’m somebody who likes the fine print. Like I like that aspect of my business. But I can tell you that the thing that I hate the most is taxes and accounting.
Danielle: [00:02:53] So I think there’s certain back end pieces to business management that we just find a little daunting. And unfortunately what tends to happen is if it seems a little overwhelming, we ignore it.
Jillian: [00:03:04] Yes, because you know what. I think because being a blogger or an influencer, there are so many things to do, that you’d rather be on Instagram or you’d rather be editing your photos or whatever, and you leave that till later.
Danielle: [00:03:18] And unfortunately what happens then is instead of being proactive and kind of taking the steps that you need. What often happens is you’re waiting until something bad.
Jillian: [00:03:29] Yes. Yes.
Danielle: [00:03:30] And we always preach. Please be proactive with your legal, rather than reactive, because if you’re only getting us involved when something happens, that usually means it’s bad.
Danielle: [00:03:41] So we don’t want to see you have to come to us because someone has stolen your content, not that you can necessarily prevent that. That’s not the perfect example, but if there’s something that went bad with a contract and you come to us and you say, they haven’t paid me, what can I do? We say, what did your contract say? And then the answer we unfortunately hear a lot is, I didn’t get a contract.
Danielle: [00:04:04] So things like that, we always want to make sure that people have the tools that they need, and we try to make sure that it’s broken down in a way that is a little more accessible.
Danielle: [00:04:18] No one except maybe me, wants to read pages upon pages of legalese. They want to feel like they can look at things and not need a legal dictionary to get through it. And that’s kind of our goal, is to make sure that any business owner, because we 100 percent believe that bloggers are business owners, that they have the tools they need to succeed.
Jillian: [00:04:39] Now what would you say are the biggest legal mistakes bloggers and influencers make?
What are the biggest legal mistakes bloggers and influencers make?
Danielle: [00:04:45] The number one is not getting contracts, not reading contracts, and not making sure that they understand what their contract says. And I think another problem is not properly handling their business entities. I think that comes up very frequently.
Danielle: [00:05:10] If they’ve started an LLC they kind of have it on paper but then they don’t know what to do with it. So they’re not following all the appropriate formalities to make sure that they are protected or they’re not transferring. You know I’ve seen some people who will start an LLC but they’re still entering their contracts as their personal name.
Jillian: [00:05:26] OK. We start there. OK. I’m a blogger. I am starting my blog. I hear these terms like LLC. or S corp. What do I do?
Danielle: [00:05:39] What I recommend there is talk to someone, whether it is your accountant who can give you some guidance on your taxes, or talk to a lawyer.
What type of business entity should I create as a blogger?
Danielle: [00:05:47] Make sure that you know the form that is best for you. When we talk about creating a business entity you can do. I could go out and start a blog tomorrow and be a business. I can be a sole proprietor, which means me and my business are the same thing.
Jillian: [00:06:03] And my social security number?
Danielle: [00:06:05] Correct. Or you can start a business entity so you can start a corporation or in most cases you can start an LLC, which stands for limited liability company.
LLC vs. sole proprietorship as a blogger
Jillian: [00:06:14] And what is the value of an LLC versus say, why can’t I just do it as a sole proprietor?
Danielle: [00:06:20] You are protecting yourself from personal liability. So let’s say you get sued. Only the business assets become involved. If you are sued personally, anything you own can become involved. So it could be a house. It could be your savings. It could be anything any of your assets could potentially come into play.
Danielle: [00:06:42] So for many people, oftentimes whether or not they create a business entity will depend on where they are in their life. For some people, if you’re just kind of starting out and you’re fresh out of college, and you’re like, I right now have 90 thousand dollars in student loan debt it’s fine, right. There’s nothing to take. They may not want to set up the LLC. They may say I want to go sole proprietor and that’s fine.
Danielle: [00:07:04] There are usually points when you start making money that we definitely recommend, keep the business entity separate, but for somebody who is more established, has assets, things like that you may not want to take any risk whatsoever. So you’re taking. You’re going to file something right away.
Danielle: [00:07:19] We usually tell people once you are making money, that’s when it’s time to start thinking about creating an entity because it is going to keep you personally protected from liability.
Jillian: [00:07:30] Got it. Now we just move from California to Texas. And so we had, we have an LLC in California, and now we just started when in Texas and I think, we did it on Legal Zoom. And actually the Texas LLC was much easier than the California LLC.
Jillian: [00:07:50] So you need to figure out what state you’re going to make your LLC in, and then fill out the paperwork. And it’s actually, at least for Texas. It was not hard at all.
Danielle: [00:08:03] Most states have online filing tax. Texas is pretty good for that. California used to be completely paper. But I think that they are getting slightly easier. What we typically recommend for people is in most cases, file where you live because otherwise you may still need to register as a foreign entity doing business in another state.
Danielle: [00:08:26] So if you Google where should I set up my LLC? I guarantee you you’re going to get thousands of google result that how you need to set up in Delaware. Delaware has really favorable tax laws. I used to live in Delaware. I went to law school in Delaware. It’s a lovely place. But for the average person who is in the blogging space, you probably don’t need a Delaware LLC.
Jillian: [00:08:48] And Delaware, isn’t it like you want if for example, you would want to do say an S corp. Where you think your company is going to become the next Facebook, and you’re going to IPO and make a zillion dollars. That’s when it makes sense to be incorporated in Delaware.
Danielle: [00:09:11] If you are planning to go for venture funding, then we recommend it, and we don’t even just recommend an LLC, we recommend setting up a corporation in Delaware because it’s often what the venture capital firms will want to see.
Jillian: [00:09:23] Right.
An LLC vs an S-Corp
Danielle: [00:09:23] And the reason they’re a corporation versus LLC is because you can issue shares of stock. So that is often one of the differentiating factors.
Danielle: [00:09:33] And when we talk about an S corp, an S corp is actually a tax designation. So you can file in certain circumstances to be taxed as an S Corp even as an LLC. You can say I want to be taxed as an S Corp, because an S Corp is solely there for tax purposes it doesn’t change your entity type.
Danielle: [00:09:54] And for that I always recommend talk to your accountant and see if there are benefits to you filing as an S corp.
Jillian: [00:09:59] Even if you’ve set yourself up as an LLC?
Danielle: [00:10:03] Yes.
Jillian: [00:10:04] Interesting.
Danielle: [00:10:04] Because an LLC is not a tax entity. An LLC is solely legal. So for example, if I started a new LLC today, it’s going to be taxed as a sole proprietor. If you have more than one person in your LLC ,it’s going to be taxed as a partnership. It’s not taxed in any other way.
Danielle: [00:10:21] So you can actually say, I would like to be taxed as an S corp and it’s paperwork that you have to file. So we always say, you know, check with your tax preparer or your accountant, and see if it’s something that can save you save money for you on your taxes.
Jillian: [00:10:37] OK. And setting up an LLC is not that expensive. Am I right?
Danielle: [00:10:41] It isn’t and it all depends on what your goals are. I mean there are some states where it can be more expensive. California has a steep yearly franchise tax so it’s like 800 dollars a year. So it all depends on what you’re doing.
Danielle: [00:10:55] The actual filing fees are typically not that expensive, if you need someone to set it up for you, if you’re looking at it saying I want to be completely hands off. You can definitely go to a lawyer and they’ll kind of offer you different packages on how to set those up.
Jillian: [00:11:10] Got it. OK. So definitely then if you have assets, protect yourself by incorporating in some form. Because again you know, your kid’s college money could be at risk.
Danielle: [00:11:24] We always recommend it, we always say depending on where you are, if you are making money or you’re entering into contracts, or you’re hiring people that’s really the time to start considering it.
Danielle: [00:11:34] But if you’re just starting out as a hobby, to see if maybe you can make some money. It may not be something that’s necessarily needed right away, but it’s something to kind of keep in the back of your mind for when that monetization hits.
Make sure to have a contract if you are working with a brand
Jillian: [00:11:46] Got it. OK so in terms of contracts, you were saying that that is one of the places where people come to you or they don’t have a contract.
Jillian: [00:11:55] So for example this is for people who want to work with brands, let’s say so somebody reaches out so you’re a blogger, a brand reaches out to you and says, Hey will you do this sponsored post for us and share it on a variety of social channels and stuff like that. And you’re really flattered because you just started like three days ago. What do you say to that brand?
Danielle: [00:12:19] Great. Say, I would love for you to send over the contract for my review.
Jillian: [00:12:22] OK. OK. So you’re not going to work without a contract, but this is just like 500 dollars.
Danielle: [00:12:29] Great, send over the contract. I usually stand firm there, if they say, oh we don’t have a contract to use, get a contract template. It’s really important to make sure that that’s covered because you can. You can list all sorts of stuff in an email and think that you’ve covered everything, and you probably aren’t.
Danielle: [00:12:46] Because it’s really important to have those terms all listed out at the onset, so that there aren’t any questions later because you need to know what are you being paid, how are you being paid, when are you being paid. Is there confidentiality? Can you list them as a partner in a portfolio? What are the disclosure requirements? Can they require drafts?’
What do exclusivity and ownership mean in a contract with a brand?
Danielle: [00:13:08] I think two of the most important things for influencers are exclusivity and ownership. They would discuss exclusivity whether or not by signing that contract you are prohibited from working with certain other companies, and they may say that you can’t work with their competitors.
Danielle: [00:13:27] They may say that you can’t work with anyone who has a specific type of product, whether it is, you know you can’t work with a cereal company, you can’t work with a granola company or they may say you can’t work with anybody who is a competitor of our company. If they give you something like that, I usually say please provide me with a list of those I can and can’t work with.
Jillian: [00:13:49] Isn’t there usually a time limit on that too? Like, for the next six months you can’t.
Danielle: [00:13:54] And they should make it very specific as to the time. If they say for three years, that’s a really long time to buy your exclusivity and your pricing should reflect that
Jillian: [00:14:04] Now I think I have to make a confession, sometimes I get contracts we work with brands with Catch My Party. I get contracts and they are so long I skim them.
Danielle: [00:14:04] I will urge you to read them over.
Danielle: [00:14:20] For some people, we do a lot of contract review for influencers, so if they get a contract, they know that they’re not going to read it that closely, they’ll send it to us to review.
Danielle: [00:14:30] So there are definitely things that we really do want to make sure that the deliverables match exactly what you talked about with the brand, that no one is going to be surprised because of what was done.
Know what’s in your contract as a blogger
Danielle: [00:14:45] Make sure that you’re not making any guarantees regarding performance unless you know you can get something to perform a certain way. I think we never know for sure how many views something is going to get. So be cautious there, and just make sure it matches what you said and make sure you understand the terms that are in there.
Danielle: [00:15:04] And after a while you start to really recognize certain things. I think that if you’ve looked at a number of contracts and you start to become familiar with the terminology, particularly for the ownership of the content then it starts to become familiar, and you may not need to read it super closely but you at least need to know what it says.
Jillian: [00:15:25] Got it. I always check at the deliverables and check for the schedule, check for the things like who owns the content, like who owns the photos or or things like that.
Jillian: [00:15:39] And I always check to make sure it is what we negotiated, like the price and and how many social shares, and things like that, and what the timetable is and I would say most of my contracts, there is not a performance piece. Like, oh you have to hit these targets. However there might be disclosure. We want you to send your Google analytics so that we can see how well the blog post performed. Like certain reports.
Danielle: [00:16:10] Yup and that’s something that’s really important. If you’re going to owe them and I think it’s especially important if you are doing things like an Instagram Story and if you need to send them a screenshot at the end of that, you need to know because it’s going to disappear.
Danielle: [00:16:26] So you need to be able to take that screenshot at the appropriate time and save it if that is owed to the brand. So it’s really important to know what are those requirements what is it that you’re going to have to do to show your performance.
Jillian: [00:16:39] So let’s say then it says in the contract we’ll pay you within 60 days. I don’t know when the norm is. And guess what 60 days goes by. And I have not been paid. But it’s in the contract. Now what.
What to do if a brand doesn’t pay you as a blogger
Danielle: [00:16:52] Usually what I say is I always follow up with a friendly email first.
Danielle: [00:16:59] And say hey, I haven’t got my payment. What I always recommend get something that has read receipt on it.
Jillian: [00:17:08] What is that?
Danielle: [00:17:09] So that you can tell if they have opened up.
Jillian: [00:17:12] Got it.
Danielle: [00:17:13] That is going to be important because you never know if your contact is on vacation. What if they had an injury and they’re out on an emergency. You want to make sure that that is actually being opened, even if you don’t get an out of office response on it.
Danielle: [00:17:28] If you see that they’re opening it and they’re still ignoring you. Yeah then usually what I will say is follow up with the phone call.
Danielle: [00:17:35] Now if there’s still nothing. See if there’s another person that you can contact. This becomes extremely important with larger companies, because there are just more layers to go through to get paid. They may have a finance department or an accounts receivable person or just more hoops.
Danielle: [00:17:52] Essentially it’s not just one person who is kind of approving it cutting the check and paying you. So if that’s the case and you have another contact that you can copy. By all means go to that person.
Danielle: [00:18:03] Usually my last resort is to send the certified letter with signature required. It is amazing how quickly people will respond to that just because it is official. And it’s a lot harder to ignore. If you had to sign for it so for sure send that.
Danielle: [00:18:24] And in that email you essentially say we had a contract dated whatever the contract is dated in that contract. I was supposed to be paid by. And you’d give your date. I have not received payment. I have tried to contact you on and give a list of everything. If I am not paid by give a date, always give a date as to when you need to receive payment. Keep it reasonable. Because unfortunately. You know it might not be tomorrow. You may need to say two weeks or so if I’m not paid by that date. I will be forced to pursue other options to enforce the contract.
Jillian: [00:18:59] I would say we have been at this for a long time. We’ve been working with brands for probably nine years and we have definitely run into situations where we haven’t gotten paid. However it’s always been rectified.
Jillian: [00:19:13] It’s always been like the accounting department didn’t get it or whatever. So for me, there have been times where I’ve had to be on, I’ve had to be on top of it. But so far we haven’t run into a situation where a brand is completely bailed on us.
Danielle: [00:19:32] It’s rare, I don’t see it that frequently where I see people not get paid is often with smaller companies maybe startups. That’s why I always get something in writing if they are hedging over giving you trouble over a contract or signing a contract that you provide. That’s a red flag to me.
Keep track of your brand payments as a blogger
Jillian: [00:19:54] Yep and you know what I do. Simple simple. I keep a spreadsheet that just says this is the brand I worked with. This is how much they’ve paid. They say they’re paying me. Have they paid me. And like as soon as that check comes in. You know I put a check mark.
Jillian: [00:20:10] Very simple like I’m not even using Quickbooks or anything like that. And I just keep a record and then once a month or so, I look through it and go, Wait did I get paid for that because I will forget.
Jillian: [00:20:20] Right. And then it will be end of the year, and you’ll be like did my work with somebody and did I ever get paid? So that has been like my saving grace. It’s just to keep a record.
Danielle: [00:20:32] Exactly. Keep track. And I think that that’s also a really good tip for how to keep track of exclusivity. Keep it all in one place so let’s say you have a client who said you know you can’t talk about breakfast cereal for three months after the time the contract expires.
Danielle: [00:20:46] Just keep a spreadsheet so that you know, OK this other company came to me. I can’t work with you yet but in 30 days I can. That makes it a little easier so that you can see like what is my expiration date, and what am I prohibited from talking about during a specific period of time.
Jillian: [00:21:01] I think that’s a great idea. Now bloggers when they first start out, one of the ways they monetize is via affiliates. And there’s a lot of conflicting information about disclosing affiliate fees or affiliate links.
How do you need to disclose your affiliate links as a blogger
Jillian: [00:21:15] I can’t even keep them straight. Like Amazon has its rules, and Pinterest has its rules, and I wonder if you could walk through what a blogger needs to know to protect themselves with affiliates and also to talk about, is there some police that comes out and says that link was not disclosed. What can happen if you don’t disclose something?
Danielle: [00:21:41] Sure. When it comes to how to disclose I always say there’s two major things that you need to check. First of all whatever it is that you have to disclose so if this is an affiliate link you need to know what does the platform require.
Danielle: [00:21:54] So make sure you know your rules for Amazon or Pinterest or wherever it is that you are doing it. And typically it will be something that you can find in their regulations.
Danielle: [00:22:04] The second thing that you have to know is the FTC. So the FTC is the Federal Trade Commission. They monitor advertising and that is where the main areas of disclosure come in. So that is why you will see #ad #sponsored because the FTC has said that they are adequate disclosures.
Jillian: [00:22:25] So they did? You could just say #ad #sponsored? How about #affil?
Danielle: [00:22:32] Affil is not sufficient because the average person is not going to know what that means.
Jillian: [00:22:36] How about #affiliate?
Danielle: [00:22:38] #affiliate should be OK but the FTC is not clear on whether or not you need more, so you may need to say “This is an affiliate link if you click on this I receive a small commission.”
Jillian: [00:22:49] Got it. And I always say, at no charge to you.
Danielle: [00:22:54] So I think that “at no charge to you” check and see if your platforms are okay with that. Because I think that Amazon makes a lot of changes and I’m not sure what they say you can and can’t say.
Danielle: [00:23:09] In terms of policing, it can become an issue with the FTC. I personally don’t think that it is ever a good idea to run afoul of the FTC because their minimum fines, if they send you a demand it’s likely going to be in the range of forty thousand dollars.
Jillian: [00:23:27] What? Have you seen this? Has any one that you’ve worked with ever received something from the FTC that says that?
Danielle: [00:23:34] Not to that extent. I think that this is a very new area for the FTC,so they put out a lot of guidance. What we have seen is warning letters and the warning letters.
Danielle: [00:23:45] Like last year there was a lot of headlines and they sent out I want to say 40 letters, and they were to bigger name influencers, like I think we’re talking like Kardashian level and mostly celebrities. And they said if you do this again you will be subject to a fine.
Danielle: [00:24:02] And one of the recipients of letters contacted us and said I didn’t know anything about this. Can you please help me you know get everything together and it was for a forty thousand dollar fine.
Danielle: [00:24:15] So we strongly recommend this isn’t an area to cut corners on, just disclose any of your relationships because to me like forty thousand dollars that’s going to sink a small business.
Jillian: [00:24:27] Oh my god yes. That’s not, that’s not chump change.
Danielle: [00:24:31] Right yes. It’s not at all. So I think to me it just makes sense to do the disclosures.
Jillian: [00:24:37] And the reason for the disclosures is because if Kim Kardashian is like saying, oh my god this is the best mascara in the world and she’s getting paid for it. Like somehow it feels like cheating that she’s not sharing that with her audience.
Danielle: [00:24:53] Right. So there is a material relationship with the reason that she’s posting. So she’s posting because she’s getting paid, she’s not posting just because she really likes something.
Danielle: [00:25:05] So I think it’s really important that if you are being incentivized whether it is by money or free product, to post something then there is a material relationship in the eyes of the FTC. So you need to talk about it.
Danielle: [00:25:17] You can do #ad #sponsored #affiliate it doesn’t have to be phrased that way though. You can work it into your story. You can say, I am working with this brand you know whomever it might be to talk more about this. This is why I partnered with this brand.
Danielle: [00:25:34] The FTC has also said that for sponsored content you can say #brand name then partner but #partner isn’t sufficient.
Danielle: [00:25:45] But like let’s say you were doing #Maybelline because we’re talking about mascara, so let’s say you did like #Maybellinepartner that is sufficient.
Danielle: [00:25:53] I always recommend if it’s a sponsored content contract, or anything with an affiliate program, check with the disclosure requirements are for that particular program because they may have something specific they’re looking for but if not you can use natural language you can use those different examples that we provide.
Jillian: [00:26:10] Okay that makes a lot of sense.
BREAK: What a happy customer had to say about MiloTree
Jillian: [00:26:13] I wanted to take a short break and read an email I got this week from a MiloTree customer. It’s from Andrea Scalzo of RaisingDragons.com. So here’s what she wrote.
Jillian: [00:26:24] I have built a large following on Facebook and MiloTree allows me to easily and organically introduce my other social channels to all the traffic coming to my site from Facebook.
Jillian: [00:26:36] It took only minutes to set up, and I immediately saw my follower count start going up on my other channels. I also love how aesthetically pleasing it is. Thank you Jillian.
Danielle: [00:26:48] Well thank you, Andrea. So for everybody else if you are trying to grow your followers on Instagram and Pinterest and Facebook and YouTube and also grow your email subscribers definitely sign up for MiloTree. We offer your first 30 days free. Just head on over to MiloTree.com and now back to the show.
What is GDPR and what do I need to know as a blogger?
Jillian: [00:27:13] Now GDPR are which is, as you know we sell our pop-up MiloTree and it is GDPR compliant, and I don’t even understand GDPR. So could you explain it very briefly for the audience and why that’s important?
Danielle: [00:27:35] Sure. GDPR stands for General Data Protection Regulation. It is an EU law or an EU regulation and essentially what they are doing is they want to ensure that consumers know how their data is being collected, what data is being collected, how it’s being used, and to make sure that consumers are in control of that data.
Jillian: [00:28:01] And can I just interrupt for one second. GDPR here though covers a wide swath, like it is not just getting somebody to understand that if they’re signing up for your newsletter because you’re giving out a freebie, that they’re signing up for your newsletter.
Danielle: [00:28:16] Right. It has like a whole host of things. It covers so many things that influencers and bloggers have on their site. And I think that the key is dive into your site see what it is that you are using on your site that collects personal information.
Danielle: [00:28:35] Now this is where things get a little bit tricky because collecting personal information. It’s not just a name or an email address or something along those lines.
Danielle: [00:28:45] It is also a location. It is also an IP address and that IP address is used regularly in plugins. It is used in Google Analytics. You can anonymize Google Analytics to not track the IP address but it is really important to make sure that if you are collecting these things, that you are disclosing for anybody who is in the EU.
Danielle: [00:29:09] So there are a lot of different plug ins that you can actually install for GDPR compliance that will help as well.
Jillian: [00:29:16] Is this going to come to the United States and does it matter? Because like what is your thought. Is it going to get more restrictive?
Danielle: [00:29:25] What we are seeing so far is California has passed a law. And if you’re not familiar with it California is the only state that currently requires privacy policies.
Danielle: [00:29:37] So everybody should have a privacy policy to comply with that because if you have any audience from California you should have a privacy policy on your site.
Jillian: [00:29:47] And that means like in your terms of service?
Danielle: [00:29:49] Yeah you should have your privacy policy. Now when it comes to GDPR in the U.S. we need to be compliant with GDPR in the U.S. if we have visitors who are from the EU then there’s ways that you need to comply.
Danielle: [00:30:04] But what we have seen is just recently and we’re still kind of waiting for everything to be finalized there, was a law passed in California on data protection. I don’t think it’s finalized yet so we don’t have all of the details. It looks like it may be comparable to GDPR. But it looks like there could also be some additional restrictions. We’re kind of in a wait and see period with this.
Danielle: [00:30:30] From what I understand it’s supposed to be implemented by 2020. So I expect that we will be seeing a lot of activity in 2019 as things get finalized.
Jillian: [00:30:41] Got it now. It’s funny because at MiloTree our belief is GDPR is good. And what is your thought about it?
Why GDPR is a good thing
Danielle: [00:30:50] I think it’s a really good thing. I think that for people in our business we kind of know what’s out there.
Danielle: [00:30:56] Like I understand the Facebook pixel or I understand affiliate marketing, but I can tell you right now, I have had to explain to my mom on more than one occasion why Facebook is showing an ad for something she just searched for.
Jillian: [00:31:09] Oh my God, I’ve done the same thing with my parents. They’re like somebody knows, they’re following me.
Danielle: [00:31:15] They’re watching me they’re following me. So I think it’s it’s important for the average consumer who may not have any idea. They think, and let’s face it especially in the age of the Cambridge Analytica scandal, people are taking a quiz and have no idea what they are doing, what data they are providing. And it’s really important that companies are up front about that.
Danielle: [00:31:39] There was a quote that I saw GDPR, the compliance date for it was May 25th so that was everything was, let’s just say in May was a little bit crazy.
Danielle: [00:31:49] There was an article and it was another lawyer was being quoted, and the person said, well if consumers know what we’re collecting they’ll never give us the information. And the attorney was like and I just said yeah that’s kind of the point.
Danielle: [00:32:02] So it’s really important and the main impact for you it may be how you’re collecting email addresses. It may be that you need a cookie disclosure on your site. But the key is use it as an opportunity to go in take a look at your plugins, see what you’re collecting, see if you still need those things.
Danielle: [00:32:20] Make sure your privacy policy is updated, and then you should be good to go. I think that for many people it was an opportunity, because they said I last updated my privacy policy in 2009 and it’s not quite accurate anymore.
Danielle: [00:32:35] And it gave people a good opportunity to kind of take a look, and I think for a lot of people they were just deleting plugins, and they were like my site so much faster now.
Jillian: [00:32:42] Oh true. And I always thought it felt a little dishonest when it would be like, hey I get this freebie by giving me your email address and I feel like the disconnect to us. Well wait a second. I just gave you like my email address. I didn’t know that I was going to be put on all these lists.
Danielle: [00:33:01] And I think that that’s the goal is to make sure that there is more transparency. If someone is giving you their personal information about how it’s being used. So I do believe it’s a good thing. I think it changes the playing field a little bit.
Danielle: [00:33:15] And it’s it’s like every time there’s a system change right. Everybody kind of freaks out says I can’t do this. Like I’m just going to quit I heard so many people say I’m just going to quit blogging.
Danielle: [00:33:25] And you don’t have to. Yes. There’s a little bit of administrative time that goes into it. But for the most part I think that they are trying to be fairly straightforward and it really is to protect your audience. And I think it’s a good thing for your audience to know what you’re doing.
Jillian: [00:33:42] Yeah. And to be trustworthy. And I will say this, which is if you are a blogger if you’ve done this for a little while you know the things change all the time. This is just one of those. Like just just wait because there will be more to your business you know and like algorithms change. If you’re not comfortable with change don’t be a blogger.
Danielle: [00:34:11] I think that there’s just nothing static and the reason that this bothered people I think is because it got into areas of their business that people weren’t necessarily comfortable with.
Danielle: [00:34:21] It got into legal, it got into the tech side. It definitely took a lot of people out of their comfort zone, and you had to deal with some areas that for many, they had completely ignored. So I get that sort of discomfort that came along with it. But overall I do think it’s a very good thing.
Danielle: [00:34:40] It’s kind of like, do you remember all of the Facebook Raffle rules?
Jillian: [00:34:44] Yes.
Danielle: [00:34:45] It’s kind of like that. Every time Facebook would make a change to their giveaway rules everybody would kind of freak out, then they would make the adjustment and then everything was OK. I view it somewhat similar.
Danielle: [00:34:56] But this is something that’s there to protect your audience, so to me, embrace it. It is coming to us. I think that we will see a lot of discussion about this next year once we start to see what’s being finalized in California.
Understanding copyright and intellectual property as a blogger
Jillian: [00:35:12] Yes so I have I have a two part question, and this is I think, my last legal question, which is so let’s say I create something like an ebook, and that would be then I guess my own intellectual property right?
Jillian: [00:35:26] Let’s say I make a cookbook. Do I need to protect that? Or how would I protect it? And then the B side of this question is what happens when somebody steals something of mine on the internet, like my photos or even my entire ebook?
Danielle: [00:35:43] Sure. What I recommend doing is, so first let’s just talk a little bit about what copyright is and what it does. So a copyright is something that protects an expression of an idea in a tangible medium and that’s a little bit of legalese.
Danielle: [00:35:57] So what it means is if I have created something and expressed an idea. So whether it is a song, a photo, a piece of creative copy etc. That is something that is copyrightable.
Danielle: [00:36:12] When you have a copyright, there are a lot of additional rights that kind of makeup a copyright. So it has the right to produce, it has the right to sell, the right to display whatever that piece of content is.
Danielle: [00:36:25] So that’s why it’s really important in your contracts that you know what happens to that copyright, because most of the time you’re going to keep your copyright but the brand will want a license to display it. So you’re giving them a right to do something from your copyright.
Danielle: [00:36:39] When it comes to creating something like an ebook. The sheer act of publishing it, gives you certain common law copyright rights. So you are the owner of that content you are the copyright owner.
Danielle: [00:36:52] When someone downloads that book you are essentially giving them a license to use it, and you are probably making restrictions that say this is for your personal non-commercial use only. You cannot resell this, you can’t copy it you can’t do X Y or Z.
Danielle: [00:37:09] So I think it’s really important to make sure that you have the copyright logo, and I recommend having a short statement. You know I think of it like your title page in a book. That’s how people can use it if you can if it’s if there’s something in the speccing that works for you.
How to register a copyright with the government
Danielle: [00:37:26] And you can also register with the government and if you register your copyright you have additional legal rights which essentially you can sue if there is copyright infringement.
Danielle: [00:37:40] So it’s actually relatively simple process. You can have a lawyer handle it or you can try to file it yourself depending on your comfort level. It’s kind of like LLCs some people want nothing to do with it. Some people are like yes please just handle this.
Danielle: [00:37:54] So you can file for your copyright which gives you additional protections once it’s registered with the Copyright Office. If someone steals your stuff, what I strongly recommend, is first reach out to the person and find out what happened.
Danielle: [00:38:11] And that may be something as simple as an email or submitting a contact form that says, hey I see that you’ve got my pictures. Those are my copyrighted material. Please take them down.
Danielle: [00:38:22] You’d be amazed at how many things get resolved on that stage because they just didn’t know that they couldn’t google search and right click, and save something and then put it up. So that’s usually step one.
Danielle: [00:38:36] Another step that you can take as if it’s being hosted online. You can send a DMCA request which is essentially a takedown request to the host of the material, and you can find a lot of templates for that online.
Danielle: [00:38:49] You can also if they still won’t remove it. You can definitely have an attorney do a cease and desist letter. Those are unfortunately for a lot of people. They get frustrated with that process because you do have to pay to have an attorney draft it, and you might not be getting anything in return.
Danielle: [00:39:07] But depending upon what they are using of your stuff, it may be worth it to you to have that done.
Jillian: [00:39:14] Got it. OK so let’s say I do. I’m a food blogger and four times a year, I take my recipes and create seasonal ebook cookbooks. Would you copyright those?
Danielle: [00:39:28] I would just to be safe.
Jillian: [00:39:30] You would? So you wouldn’t just put on the title page, you know the copyright logo, and say this is for your personal use only. You cannot sell this or whatever distribute it in any way, but then you would go that extra mile and you would copyright those books.
What does registering a copyright do for you as a blogger?
Danielle: [00:39:47] If it’s something that’s going to be relatively heavily distributed I would do it. It’s fifty five dollars I believe is the fee to do the copyright application. To me, if it’s something that is going to be a critical part of your business, that’s a fee that’s worth it.
Danielle: [00:40:04] If you’re talking about just a blog post everyday that might not be something that you copyright and register every single one that you do.
Danielle: [00:40:15] You might do it as an anthology once a year, that you copyright it to give yourself some additional protection. But if it’s something that is going to be a critical part of your business, or something that you’re using to make money, I think it’s worth the investment to have the additional protection. So that way if something happens you know you haven’t got it.
Jillian: [00:40:36] Wow. OK. Because I had not thought to really do it. I didn’t know it was fifty five dollars.
Danielle: [00:40:42] Yeah it all depends on what the item is like. If we’re talking about a just a small freebie that maybe a couple hundred people will see, it might not be something that’s worth it to you, that might be something that you take your chances with.
Danielle: [00:40:56] But if we’re talking about something that you’re potentially going to use to sell or to make money or that it’s going to go into the hands of thousands, then I think it’s a smart idea to to copyright it because it’s it’s an expense, yes but it’s an expense that can give you additional protection if something happened.
Jillian: [00:41:16] So like for example we create free printable on Catch My Party and we give them away, and we say you know, these are for your personal use only. I have found our free printables on Etsy being sold.
Danielle: [00:41:30] Oh wow.
Jillian: [00:41:31] So I have not copyrighted them, but I did then contact the Etsy seller and say please take these down. And they did.
Danielle: [00:41:38] Good. Good.
Jillian: [00:41:39] OK. But let’s say they didn’t. What would I do? Let’s say if I haven’t copyrighted them what else can I do, and then what if I had copyrighted them?
Danielle: [00:41:50] The main difference between copywriting like let’s say, somebody had one of your printables and they were making a lot of money off of it, and that Etsy store and you’re just looking at that saying, that’s money that should be mine right not yours. You didn’t create that.
Danielle: [00:42:04] So if you needed to sue them, then you need the copyright registration. So it’s especially important if somebody is using your stuff commercially, and you’re trying to get some of those profits back for yourself.
Danielle: [00:42:14] But I think that depending on where your content is being used. So in a way, Etsy is helpful because they will typically have copyright forms so you can say this is my material. This is you know stolen essentially. And allow you to submit that.
Danielle: [00:42:33] So it can depend on what your ultimate goal is. If you want to make sure that you have the ability to sue if something is stolen, then you want to register.
Jillian: [00:42:41] Got it.
Danielle: [00:42:41] If you are only concerned about getting it taken down, then you may not need that but the problem is if even if you can’t get it taken down, you may still need to. You never know when you’re going to need to take that final step.
What if someone copies your designs as a blogger?
Jillian: [00:42:55] Got it. And one thing that I do, is a lot of people will reach out to me especially through Catch My Party. You know they create printables or invitations or something like that, and they will say to me somebody copied my design.
Jillian: [00:43:14] And maybe it’s not completely, it’s not a hundred percent copy, but it’s probably, you can tell that they were inspired by the person’s work. What would you say to that person?
Danielle: [00:43:29] It depends on how much was copied and if it would be considered a derivative work, if it would be considered a copy. That can get into some hazy territory. So that’s usually what I would say contact a lawyer, set up a consultation, and see just how much has been changed and whether or not you still have a claim.
Jillian: [00:43:51] OK. And do you get calls like that a lot?
Danielle: [00:43:54] Yes.
Jillian: [00:43:54] Where people say is this too similar?
Danielle: [00:43:57] Yeah we have. We’ve certainly dealt with that. And it really does become an analysis of how much has been copied how much has been changed. Has enough been changed.
Danielle: [00:44:07] And sometimes it’s really taking a look at it and balancing what the cost would be to defend it, because copyright infringement unfortunately can become costly, because it’s a lot of expense for you on the legal side to get something taken down, and you may not see any money back for it.
Danielle: [00:44:28] So for some people it’s a matter of, do I want to spend money to get this taken down? How much is this particular item going to impact me if it stays there?
Danielle: [00:44:38] But if it’s on a platform like Etsy, typically they are going to give you the ability to report something as stolen. It can be more tricky if somebody is just putting it on their website, or in their own shop, or something like that, where there’s not that formal mechanism.
Jillian: [00:44:54] Got it. Danielle, I have been taking a ton of notes here. I need to talk to my accountant, and I need to think about copywriting my stuff. So thank you so much.
Jillian: [00:45:08] So can you share how people can reach out to you if they’ve got legal issues or questions how they can find you. All of that.
Danielle: [00:45:18] Of course. If you have something you need assistance from a lawyer with then you can reach us at HashtagLegal.com. We also have forms and templates like privacy policies and contracts things like that.
Danielle: [00:45:34] And then if you need legal templates or forms we have Businessese.com and you can also always get more information from us on our podcast. The Business Influencer Marketing Podcast.
Jillian: [00:45:48] Awesome. Danielle thank you so much for being on the show.
Danielle: [00:45:51] Thank you.
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