7 Legal Issues with Social Media Influencers

Influencer Marketing is a Billion Dollar Business

Thanks to you, through clever collaborations between brands and authentic personalities such as yourself, companies around the world have witnessed substantial progress in their bottom line over a ten-year period. There's no denying that when done right, influencer marketing can be very rewarding for all parties involved. This article will explore the legal issues associated with proper disclosure, intellectual property usage, and contracting when it comes to Marketing & Advertising in order to help keep you as an influencer compliant.

In the past, some may have remained unconvinced that influencer marketing could yield profitable results. Fast forward to the present day, however, and there's no denying that getting involved in this lucrative industry is paying dividends - according to the Influencer Marketing Hub, with market growth rocketing from $1.7 billion in 2016 to $9.7 billion in 2020. In 2021 it was $13.8 billion and to an eye-watering $16.4 billion today! It just goes to show that investing your time and hard work as a social media influencer can pay off big time.

Short video content has become increasingly popular on social media platforms, such as TikTok, Facebook, and YouTube. Meanwhile, the global pandemic drove more people towards consuming digital media; this combined with marketers leveraging data collection for targeted ads, has resulted in the exponential growth of these platforms.

Whether you are a nano influencer, micro-influencer, or macro influencer, you need to pay attention to the legal risks of your business. As a nano-influencer or micro-influencer, you possess an advantage: your audience tends to be more engaged and actively taking action. Influencer marketing experts predict that smaller markets will undoubtedly benefit from working with micro-influencers such as yourself. Not only do you radiate authenticity but also relatability and credibility— elements audiences deeply seek out in today’s world. As a nano influencer and micro-influencer, brands are planning to invest even more in you and you need to be aware of the legal issues that could cost you your business even if you don't have a large following.

If you are a macro influencer with an audience of over 100,000 followers, chances are that you represent larger brands or industries. You wield more power when it comes to promoting products/services and connecting with your followers compared to micro and nano influencers. That's why having an in-depth knowledge of influencer legal issues is essential for you.

Different Types of Influencer Industries:

• Fashion

• Beauty

• Travel

• Lifestyle

• Gaming

• Cryptocurrency

• Health and Fitness

• Family and Parenting

• Business and Technology

• Celebrities

• Entertainment

• Sports

• Animals

Niche markets represent a great opportunity for brands to reach people of all interests and preferences. As a social media influencer, you have established trust in your community, and you can influence sales, growth, and brand representation in powerful ways. With the right niche market strategy, any brand or influencer can drive real results with your target audience.

Although it can be easy to forget, legal issues may arise regardless of what kind of social media content is being created--so staying informed and prepared for any legal implications is key. By making sure you are aware of all types of influencer legal concerns, you will lay the groundwork for a successful career as a social media influencer.

Legal Action Taken When Influencers Ignore FTC Rules

If you don't follow the FTC guidelines, you will face legal action. In 2017, the FTC faced its first legal action against individual influencers.

Two popular online gamers, Trevor "TmarTn" Martin and Thomas “Syndicate” Cassell have agreed to a settlement with the Federal Trade Commission for deceiving their fans by not disclosing that they co-owned CSGO Lotto. The two influencers additionally paid other influencers thousands of dollars in exchange for promoting the site without making it clear that this was an advertisement. As part of the agreement, both must now be transparent about any material connections or financial dealings between them when endorsing products or services on social media platforms like Tik Tok, YouTube, Twitter, and Facebook.

According to the FTC Acting Chairman Maureen Ohlhausen, “Consumers need to know when social media influencers are being paid or have any other material connection to the brands endorsed in their posts”. “This action, the FTC’s first against individual influencers, should send a message that such connections must be clearly disclosed so consumers can make informed purchasing decisions.”

The FTC is keeping a close eye on social media influencers and brands, issuing warning letters to those who defy their guidance so that they stop posting violating content. To prevent future legal entanglements, it's absolutely essential that you stay on top of the latest regulations.

FTC Compliance

FTC rules serve as a resource for social media influencers like you, granting you the opportunity to adhere to the law in a voluntary manner. As outlined in greater detail within the Guides, for a social media influencer to be compliant with Section 5 of the FTC Act (15 U.S.C. 45) influencers must:

• It is of utmost importance that any material connection between influencers and advertisers be disclosed, as it could have a significant impact on the believability and credibility of their endorsement. Moreover, endorsements should always reflect an honest opinion from personal experiences.;

• To ensure integrity and prevent any misleading representations, advertisers should not alter the influencer's point of view or portrayal nor present endorsements out of their intended context.;

• It is essential for any influencer to have been a true user of the product at hand when making an endorsement, and advertisers can only keep using this type of advertisement if they are confident that the influencer remains a legitimate user.;

• All claims about the efficacy of a product or service must be backed up with adequate evidence, which may include authoritative scientific data.;

• This guarantees that what an influencer expresses about a product or service is indicative of the typical customer's experience when they use it.; and

• If an influencer claims to be an expert, they must possess the experience and knowledge required for their statements to be given credence. It is also essential that their expertise was applied in assessing the particular characteristics of a product before giving it any praise or recommendation.

To ensure your compliance with the FTC Act and its guidelines, it's essential to consider both the explicit regulations declared in Section 5 as well as any consequential enforcement actions brought forth by this federal organization. Furthermore, the FTC provides a good amount of examples illustrating acceptable or unacceptable conduct that can be found within these materials. With these resources, advertisers, and influencers are able to steer away from any potential legal risks.

PART 2: INTELLECTUAL PROPERTY AND COPYRIGHT LAW

Intellectual Property and Influencers

Protecting Your Intellectual Property as an Influencer

As a social media influencer, you are aware that your work can be seen by millions around the world. To protect yourself and ensure others stay within the legal boundaries of copyright laws, it’s essential to take control of your Intellectual Property (IP) rights. Registering trademarks for any of your logos, marks, slogans, etc., as well as protecting videos, photographs, and text with copyrights, are key in safeguarding your influencer business.

Protecting your content is essential. To secure it from potential copyright infringement and other misuse of intellectual property rights, make sure you register all original work with the United States Copyright Office. Similarly, consider trademarking the name or brand with the Trademark Office associated with that creative material as soon as possible so that you can gain trademark rights.

Social Media Celebrities and Trademarks

Lele Pons and Trademarks

Notable social media celebrities have taken the extraordinary step of trademarking their name. For example, Lele Pons, a prominent YouTuber, has filed for her namesake under Class 41 (entertainment services) with the United States Patent and Trademark Office (USPTO).

The more you as an influencer become a brand of your own the more you need trademark protection for your own brand. According to Forbes, "The distinction between influencer and brand is becoming increasingly less clear; influencers—like Michelle Phan and Zoella—are launching their own product lines, and brands are relying more on influencers for credibility among consumers."

Social Media Platforms and Ownership Control

As a social media influencer, it’s essential that you understand the fine print of all platforms before publishing content. You need to carefully read and understand each platform's terms of service – as some give ownership control to the site itself. The last thing you want is to unknowingly give away your rights. Certain websites will transfer your Intellectual Property rights to the website when you instantly upload your content while other websites allow you to maintain your own copyright. Before uploading content, make sure you understand the fine print, and you are clear on whether you are transferring your ownership rights or somehow limiting your own use of your content.

Steps Influencers Can Take to Secure Their Intellectual Property

Now that social media has granted us all the ability to become published content creators, the rules regarding Intellectual Property have drastically shifted. Here are a few important steps toward safeguarding your Intellectual Property and remaining compliant with regulations. To make sure your IP is secure on social media, you should:

• To ensure that your brand is being represented in the best light, it's essential to develop a policy for permitted and prohibited uses of your content. It becomes even more critical when you are signing agreements with brands or influencers for collaborations or promotions.

• Before signing any agreement or contract, it is crucial to fully understand all of the terms and conditions.

• Utilizing the copyright symbol “©”, as well as adding digital watermarks to your content, is an invaluable way to protect yourself and ensure that you are credited for your work.

• Stay vigilant and watch for any illegal replication or utilization of your content. Google Alerts is a helpful asset that can be used to monitor.

• Protect your online identities, logos, slogans, and hashtags with trademark registration from the trademark office to secure your trademark rights and protect your intellectual property.

• Secure copyright registration for your original video, audio recordings, photographs, written content, and artwork to ensure they are protected.

Steps Influencers Take to Stay Compliant with Intellectual Property Laws

To protect your own rights and avoid any legal repercussions, as an influencer, you should always be aware of intellectual property laws. Staying compliant is made possible through:

• To ensure your content is protected and free of any violations, always obtain the required permissions and licenses before using brand names, logos, trademarks, or copyrighted material.

• You should be aware that their words carry substantial weight and influence, so it is really important to remain honest in your reviews. All remarks must be founded on facts rather than baseless statements. You need to ensure you don't make any inappropriate criticism of a brand caused by erroneous claims.

• Before registering a domain name, it is important to exercise due diligence and carefully examine if the proposed name could be confused with an already established brand or its associated domain.

Legal Consequences Influencers Could Face for Using Someone's Intellectual Property

To stay above board and out of legal issues, it's critical that, as a social media influencer, you are careful to preserve the intellectual property rights of others. This applies to all Intellectual Property, such as patents, copyrights, trademarks, and trade secrets.

As an influencer, if you're found liable for infringement, there can be pricey consequences: the plaintiff in such a case could demand monetary damages up to tens of thousands per offense or even remove all infringing content from your posts. All trademarks, copyrights, domain names, and brand names need to be respected. The best plan is always prevention; ensure that any content posted follows the law and legal guidelines.

You want to be aware that any infringement behavior can lead to severe repercussions. An injunction might just ask for a temporary change in your activity - but it could also demand the relinquishing of domain names or social media accounts and even bring complete closure of your online presence. To stay on the right side of Intellectual Property laws, make sure you know what is yours; protect it under relevant Intellectual Property Rights regulations so nobody else can take advantage of all those hard efforts you put into creating unique material.

The degree of illegal activities involved will significantly impact the penalty you receive.

#2 How Copyright Law Protects Influencers

Copyright law protects the rights of creators by granting exclusive rights to their work, such as the right to copy, distribute, and modify it. This protection encourages innovation and creativity, helping you as an innovator get recognition for your work and make a living. Copyright law also helps protect against plagiarism, piracy, and other forms of infringement.

As an influencer, it's essential that you understand copyright laws. Copyright law is designed to protect “original works of authorship fixed in a tangible medium of expression,” which means knowingly using someone else's material without their permission can cause legal problems. Be mindful that simply copying and pasting text or images into your posts could be against the law—as well as playing music files in videos or utilizing web code owned by another person.

Social Media Influencers Need to Protect Their Intellectual Property Rights

It's important to be aware of which creative works you can use in your videos or posts. You must obtain proper permission before using the work of others. However, you may qualify for fair use exemption (e.g., when used for education purposes), but the safest route is to ask for permission. If any license is required from the holder of copyright material, then you should take the necessary steps to obtain the license; remember, just because something online does not necessarily mean it can be freely shared by everyone.

As an influencer, you know the line between commercial purposes and non-commercial purposes isn't always clear. At times, your content may be solely for critique or review, which could be considered more of a non-commercial purpose. On the other hand, it is considered a commercial purpose when you give an honest review of the product but mix in your official brand deal. When it's for commercial purposes then influencer marketing compliance is crucial.

Protect Your Intellectual Property Rights with the Help of Social Media

You can protect your intellectual property rights with the help of various social media sites and their specific tools. YouTube, for instance, has 'Content ID', a system that helps copyright owners identify and manage their content. With Content ID, you can register yourself on YouTube if you own multiple pieces of copyrighted material; then, when someone uploads something similar onto an online platform like Youtube it will be detected by ContentID’s scanning capabilities - this way large catalog holders are kept secure.

Copyright Law Protects Social Media Influencer Choreographers

JaQuel Knight has broken boundaries and taken creative control in a powerful way - copyrighting his signature dance moves. He is now creating history as the first choreographer to protect the copyright for content creators, launching Knight Choreography and Music Publishing Inc.

After crafting the iconic moves in Beyonce’s “Single Ladies (Put a Ring on It)” video, JaQuel Knight rocketed to stardom. He has since become Queen Bey's go-to choreographer, bringing together her celebrated tours and Coachella performances with his artistry. His impressive portfolio is further highlighted by his masterminding of Jennifer Lopez and Shakira's 2020 Super Bowl Halftime Show.

In an interview with Variety, JaQuel Knight explained that “Copyrighting movement is about putting the power back in the artist’s hands.” Knight also said “we set a historic precedent with our ‘Single Ladies’ copyright achievement, and we are thrilled to be launching Knight Choreography & Music Publishing, Inc. so that the next generation of artists are afforded the same platform, resources, and tools to thrive, creatively and financially, in the commercial music industry.”

Knight Choreography & Music Publishing is a unique company that serves as the go-between for licensing deals and IP protection specific to dance. As its name implies, this organization safeguards dancers' creative work just like music publishers safeguard musicians - ensuring their moves are celebrated and fair compensation secured.

Often influencers and mostly Black creators are not credited for their choreography on social media, and when their work is on national television, it becomes a bigger problem. For example, the lack of proper recognition for dances popularized on TikTok erupted when Addison Rae performed a series of such moves on "The Tonight Show" without crediting the mostly Black creators. In response to the backlash, Jimmy Fallon addressed viewers and declared that those who crafted these moves should have their own spotlight - ultimately inviting them onto his show so they could receive the proper credit.

If you are an influencer who is a choreographer on Tik Tok or use another social media platform you need to look into the process of registering your original choreography with essential reading materials from the U.S. Copyright Office, specifically Circular 52 and Compendium Chapter 805.

Keep in mind that as you dance to choreographed routines, it will slowly become more and more possible to be responsible for copyright infringement claims, DMCA takedowns, and specifically social media penalties. That is why it is so important to register with the Copyright Office if you are creating your own dance moves on Tik Tok or other social media platforms.

Copyright Infringement and Embedding Social Media Posts

As a social media influencer, it's important to pay attention to the enable and disable features on social media sites. For example, Instagram allows creators to disable the embed feature in a post.

The issue of embedding is difficult, you need a public profile to work with brands, but you also run the risk of having others profit from embedding your posts. According to the American Society of Media Photographers, this happened to the photographer Stephanie Sinclair when she posted her images on her public Instagram profile. Mashable wanted to use it and reached out to license Sinclair's work for $50 on their website; after Sinclair refused, they embedded it on their website. Mashable made a profit because of Sinclair's embedded post on their page.

Sinclair took legal action against Mashable for copyright infringement in the Southern District of New York, accusing Mashable that by featuring her image through embedding it on their website, it violated her exclusive right to reproduce and display. Nonetheless, court in Sinclair vs. Ziff Davis, LLC, ruled this was not copyright infringement.

The judge stated that because Sinclair uploaded the photograph on a public and not a private Instagram profile, then "she agreed to allow Mashable, as Instagram’s sublicensee, to embed the Photograph in its website.” Sinclair agreed to the Instagram Terms of Service and agreed to give Instagram a "sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content." Therefore Instagram is allowed to sub-license the rights you gave them to Mashable, and in this case, Mashable followed the Instagram policy that was set at the time for embedding.

What does the Sinclair vs. Ziff Davis, LLC mean for you as a social media influencer?

1. Carefully read through the Terms of Service for all your social media platforms.

2. Be aware of the embed feature for Instagram, Tik Tok, and any other social media platform you currently use. Check if they have an enable and disable embed feature.

3. Conduct your Risk Analysis: List the pros and cons of leaving on the embedded feature. If you want more exposure and are okay with brands embedding your content and possibly making a profit without sharing it with you, then leaving the embed option on may make sense. However, if you are not okay with this, disabling the embed feature is best.

New Copyright Law Court for Social Media Influencers

Congress made history for Influencers in December 2020 when they passed, and the president signed into law the U.S. Copyright Alternative in Small-Claims Enforcement Act (CASE Act).

You have a new way to safeguard the intellectual property you create online. The CASE Act was designed with influencers in mind, so if someone else is using your work without permission, there's another option available for taking action.

According to the Copyright Alliance, on June 16, 2022, the U.S. Copyright Office launched its revolutionary Copyright Claims Board (CCB), a voluntary three-member tribunal comprised of copyright experts established to provide an affordable and efficient alternative to federal court for smaller copyright cases.

The Copyright Alliance provides valuable resources for Influencers so that you can educate yourself about the Copyright Claims Board and how to work through the CCB proceeding. CCB resources can be found here.

PART 3: TRADEMARK LAW

#3  How Influencers Can be Liable for Trademark Infringement

According to the United States Patent and Trademark Office, "A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors."

As a social media influencer, you want a strong trademark to be inherently distinctive, which means that it identifies and distinguishes you as a single source of a product, or your trademark must have acquired distinctiveness because you used it extensively and promoted it and now the public associates the trademark with you as the source of the product.

As an influencer on social media, it's important to be mindful of trademark laws and the consequences of infringing upon them. You should always steer clear from using trademarks in a manner that could cause consumer confusion or weaken another company’s brand - this is referred to as "likelihood of confusion" or “dilution." Failing to adhere to these trademark laws can have serious repercussions for your influencer business, so protect yourself by staying educated on trademark laws.

Influencer Legal Issues with Trademark Laws

Trademark law is designed to protect brand owners from having their products or services confused with those of competitors. Trademarks allow brands to create strong and distinctive identities amongst their customers that are associated with a particular quality and guarantee of origin. This can help companies build consumer trust, loyalty, and recognition in a crowded market. It also helps prevent competitors from using commercially damaging imitations or confusingly similar products to undermine the reputation and goodwill of an established brand.

As an influencer, you should obtain the written permission of any brand whose name, trademark logo, or products are being used in your social media post. If your social media content includes references to another person's trademarked branding - then it can be seen as infringing on those Intellectual Property rights, and legal action could be taken against you. Also, remember that branded content requires special permissions from the relevant brands before its use; otherwise, this will also constitute illegal behavior under intellectual property law. Make sure when using other peoples' trademarks/brand names for creative purposes that you always have obtained written authorization beforehand.

Influencers Liable for Trademark Infringement

The golden question you should be asking yourself: What repercussions can a social media influencer face for an Instagram or Tik Tok sponsored post based on misleading information provided by a deceptive brand or a brand that hasn't been careful?

Short Answer: You could be liable as a social media influencer. Courts have concluded that social media influencers are believed to have the power to sway consumer decisions and, therefore, could be sued for direct trademark infringement regarding products influencers support. Unfortunately, this happened to Molly Sims in the California case Petunia Products, Inc. v. Rodan & Fields, LLC and Molly Sims.

When supermodel Molly Sims and skincare giant Rodan & Fields were sued for their influencer endorsement of the “Brow Defining Boost” on her blog, neither one was aware that another enterprise had already claimed ownership over the trademarked term “BrowBoost.” Unfortunately, this trademark infringement case took a toll on Molly Sims and would take a toll on any influencer, as defending oneself against these types of claims can be quite costly and time-consuming. It is now common to see influencers named as defendants when the case for confusion carries weight.

In Petunia Products, Inc. v. Rodan & Fields, LLC and Molly Sims, the plaintiff, Petunia Products, Inc., a cosmetics company, owned the BROWBOOST®  trademark, which it used in connection with its eyebrow product. Defendant Rodan & Fields (“R&F”), a competitor of the plaintiff, marketed its own eyebrow product called “Brow Defining Boost.” Plaintiff claimed the R&F product infringed on and diluted its trademark and that R&F’s promotion of its product on social media through influencer Molly Sims with the hashtag #BROWBOOST and reduced plaintiff's online presence.

Sims argued that she should not be held accountable for trademark infringement due to her status as a third party. However, the U.S. District Court for the Central District of California disregarded this claim, citing that in order to win on trademark infringement, "a plaintiff must show that the defendant used the plaintiff's trademark in commerce and that the use was likely to confuse customers as to the source of the product."

The court declared that Molly Sims's blog met the criteria for commercial use, as it was not simply offering commentary on a product but actively promoting and advertising it. Moreover, the court ruled that the plaintiff had successfully argued their case to demonstrate how Sims’ blogging would lead customers to be confused between R&F's product and the plaintiff’s trademarked product due to similarities in name as well as being sold through the same channels.

As a social media influencer, it is essential to be mindful of the potential legal ramifications of product endorsements for brands before making any commitments.

Social Media Influencers Protection From Trademark Liability

To protect yourself from trademark liability down the road, you should:

1) Thoroughly research all relevant information related to the brands you partner with

2) Make sure you have the proper indemnification clauses in your contracts so that the brand promises to cover your losses.

3) You must include a solid representation and warranty clause. The brand you are endorsing needs to warrant that they have the rights to what you are endorsing for them.

Doing these steps will decrease your risk of trademark infringement in future collaborations. With the development and growth of influencers, laws, and courts seek to protect consumers, so now more than ever, you need to have solid Influencer Contracts. Courts are not playing around, and neither should you!

Trademark Protection for Domain Names

Domain names are the powerful and memorable web addresses that people use to navigate any website. Much like a business name, your domain is essentially an online identity – it allows users to locate your site with ease. These domains typically consist of the company's name followed by .com, .org., .gov., or other popular extensions such as .net or .in. Overall, having a unique domain will give you invaluable visibility on the internet.

If a domain name meets all the requirements for trademark registration, it should be registered as such. If done correctly, this will grant you, as a social media influencer, legitimate rights, and authority just like any other registered trademark. Therefore, you must take the appropriate steps to research your chosen domain name prior to registering in order to confirm that no one else has already taken it or is infringing upon another's Intellectual Property Rights.

PART 4: INFLUENCER AGREEMENTS

#4 How Influencer Agreements Can Save Influencers

It is critical to define both parties' obligations and responsibilities at the beginning of the business relationship to avoid potential influencer legal issues in the future. This is achieved by having an "influencer agreement," which typically outlines each entity's terms with clarity and precision. By utilizing this contract, brands can ensure their collaboration runs smoothly for all involved.

What is the significance of an Influencer Agreement?

A contractual agreement between an influencer and a brand is essential in order to protect both parties while laying out the obligations that must be met. When executed correctly, such collaborations can be fruitful for all concerned; however, it is paramount that roles and expectations are clearly outlined through a legal contract. Doing so will also ensure compliance with U.S Federal Trade Commission guidelines which exist to safeguard consumers from deceptive advertising tactics or any other unfair business practices. To maintain FTC standards, influencer marketing campaigns must be accurately identified as sponsored content or branded content by the influencers.

When is it necessary to have an influencer agreement in place?

Creating and signing a mutual agreement is essential to ensure a successful and stress-free business partnership between an influencer and a brand. An influencer contract sets expectations for tasks, compensation, and timeline – all vital components in any fruitful collaboration. It also provides security on both sides; professional brands will expect one before work begins, while it can provide peace of mind that contractual obligations will be met by every party involved throughout the campaign.

Understanding the Necessary Terms of a Social Media Influencer Agreement is Paramount for Success:

• Core Message: As a social media influencer, your opinion about the brand's product or service is valuable. It's important to use your own unique voice in conveying the message. That said, make sure you have the brand's core message (if any) laid out in the social media influencer agreement to avoid confusion.

• Content rights: you're an influencer, so you know your content is valuable. For brands wanting to collaborate with you, it's critical that they get a license to the content that you own. Without one clearly defined ahead of time, there could be serious legal issues. Protect yourself by nailing down those details before any deal goes through.

• Federal Trade Commission: staying compliant with FTC social media guidelines is a must. Any meaningful ties between you and the brand need to be disclosed clearly according to the FTC disclosure requirements in order for you to remain ethical. Make sure your social media influencer agreement outlines exactly what's expected of the FTC disclosure requirements so that your followers are kept informed - after all, they deserve nothing less than transparency from those gaining financially or otherwise from their digital presence. It's important to stay updated with the FTC rules and the FTC compliance guide, which is usually updated every year.

• Deleting Content: Usually if a brand wants to maximize their ROI and ensure long-term value, they might be explicit in the social media influencer contracts about how long branded content should remain publicly visible. Know your value and make sure you are getting paid for it. There is a difference between deleting an Instagram post after 4 months versus a Youtube or blog post where there is a longer-term impact. Make sure your content creation agreement always specifies how much longevity is expected of each project, and make sure your payment is proportional to that.

• Tracking and reporting: It benefits both you and the brand when tracking and reporting is clearly laid out in the influencer contract. To avoid confusion later or redoing a post, check in with the brand and make sure any unique URLS, promo codes, tags, and hashtags are in the influencer contract.

• Content Use Rights: Ensure the influencer contract lays out all the ways the brand plans to use it. If the brand plans on reposting on their social or their website or if they plan to share with a third party or paid ad, you need to have it clearly laid out in the influencer contract. The last thing you want is to have your content posted somewhere without your knowledge or without more payment. The more uses they have, the more you can adjust your fee in proportion to the many ways the brand plans to use your content.

PART 5:  OTHER LEGAL RIGHTS AND LEGAL RISKS

#5  Why Influencers Should Know their Independent Contractor Legal Rights

Legal issues may arise when determining if you, as a social media influencer, should be labeled as an employee or independent contractor. Generally, the more control a brand exercises over your work, the more likely a court will consider you less as an independent contractor and more of an employee.

In the eyes of the court, an employee and an independent contractor are treated differently with respect to liability. The California's Dynamex case changed how we define an Independent Contractor. The ruling revolutionized our understanding of where to draw the line between an employee and an independent contractor, and it's not as straightforward as it seems.

As an Influencer, you have the potential to provide a vast selection of services. But if your duties are too heavily regulated or restricted by the brand, that may violate legal regulations and incur penalties under the Labor Code in many states. Generally, the more control the brand has over your activities as an influencer then it raises the chance of generating problems with the IRS or the courts when paying you as an independent contractor.

It's good for you to know it doesn't matter if the brand calls you an independent contractor in their agreement; if they treat you like an employee, you may be considered one under the law. When deciding whether an employment relationship exists, the IRS or the courts may take into account all the activities that involve the brand's control over you, such as supplying you with equipment and props for a video shoot, dictating what is exactly said in each Tik Tok post, and even having to edit your social media post before it goes live. It's good to keep track of whether the brand is exerting a high degree of control.

#6 Why Sharing Confidential Information is Risky for Influencers

When you disclose confidential or proprietary information on a social media platform or blog, you put the confidentiality and integrity of that data at risk. The purpose of keeping such knowledge private is to guarantee legal protection; however, making it accessible on social media will erode the confidentiality clause in your influencer agreement with the brand.

#7  How Social Media Influencers Can Violate Publicity and Privacy Rights

As a social media influencer, it's important to remember two key legal considerations when creating content: publicity and privacy. If you use someone else’s image or video in your post without their permission, you risk violating the person’s publicity rights - so make sure that all individuals featured have given explicit consent.

Influencers Could Unknowingly Violate Celebrity Publicity Rights and Privacy Rights

You may be tempted to use familiar faces in your promotional materials; it's important to seek permission before involving celebrities - or their images, names, and quotes-in any of your campaigns; otherwise, they might feel misrepresented. If a promotion distributes something false or derogatory that insults or degrades the individual, you may be held liable for misrepresenting them.

Using a celebrity's image or likeness for commercial use, like advertising a product without the individual's consent, is considered misappropriation. Nevertheless, misappropriation goes beyond just celebrities; any person who has their identity used for commercial use with no approval can take legal action. The law takes appropriation of name or likeness seriously, and you should be careful as an influencer. To avoid potential litigation issues, you should ensure you have acquired permission through releases before using anyone else’s name or likeness.

Influencers Could Unknowingly Violate Their Employee or Client Publicity Rights and Privacy Rights

You must know the implications of mentioning a private person on your social media accounts. Your employees and anyone else interacting online have a right to their privacy; hence, you must obtain consent before posting any details about them or anything related to them. With so many people following you, the account can, unfortunately, draw unwarranted harassment towards those mentioned in your social media posts. This could lead to dire legal consequences due to violating privacy laws.

As an influencer, you need to take privacy very seriously. Any information shared with a brand must be done so only after permission has been granted — otherwise, it could be viewed as violating their rights and causing serious problems for everyone involved. Remember: when working with brands, don't share anything without explicit approval first to avoid violating publicity rights and privacy rights.

Final Tips for Influencers to Avoid Legal Issues

• Establishing a strong influencer agreement is CRUCIAL for legal protection, clarity, and assurance, as it eliminates all doubt about the terms of agreements between parties. Proof of these influencer agreements ensures that both sides are accountable for their commitments.

• It's imperative to embrace transparency; speaking ill of a product you never used or tried is prohibited by law. Fake reviews are not allowed, which is why it's crucial to be honest, and open when reviewing products.

• Investing the time to research a brand and run background checks thoroughly can greatly impact establishing trustworthiness and assurance and possibly prevent legal issues down the road.

• It is essential for you as a social media influencer to be transparent with your customers and followers on social media by disclosing any sponsored promotions or advertisements. 

• Following the FTC guidelines is a must. A disclosure message, coupled with appropriate hashtags such as #collaboration #sponsored, #paidpromotion, and #ad will help your followers understand when they are receiving a personal opinion or if it is part of an advertisement. However, the disclosure should not be these hashtags alone, as this could easily go unnoticed by readers.

• It is your responsibility to ensure that your product promotions does not offend or harm any segment of society.