CREATE YOUR BRAND + KEEP IT LEGAL

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The blogging landscape has changed drastically in the past decade, moving away from amateur hobbyist bloggers and inching towards professional content creators who have established blogging as a viable business model. For some, blogging is a means to an end, but for others, it is the end. Either way, no matter where you are situated on that broad spectrum of blogging, you could be susceptible to a veritable minefield of potential legal issues.

As bloggers increasingly become entrepreneurs, personal brands, and media personalities, the legal parameters that govern digital media will continue to evolve and become more sophisticated and nuanced. In some areas, the laws are well established and easy to follow, while in other unprecedented areas, the laws significantly lag behind newer technologies and are only beginning to take shape. Given that digital media law is in constant state of flux, it can be difficult for content creators to keep track of the latest legal developments, but this quick guide provides a good starting point and can help bloggers steer clear of potential legal liabilities and risks.

1) Add a Privacy Policy and Terms of Use to your website.

The fast-growing world of technology has raised issues of online fraud, identity theft, and the misuse of personal information. Readers when they come to a website need to be assured that their sensitive data is secure and will be protected. Moreover, they should also be aware of how their data is being used and how that data is being gathered.

One of the easiest ways to address this problem is to create a legal framework for your website by adding a Privacy Policy and Terms of Use. This is especially important if your website allows comments, uses third-party advertising platforms, and/or collects email addresses for online newsletters or RSS feeds. Both documents should be unique and tailored to the individual blog.

2) Learn the laws that cover email marketing.

Collecting email addresses to build a targeted subscriber list is often one of the main features of a blog. Third-party email marketing software such as Mailchimp, Constant Contact, AWeber, etc. are often used to execute that feature. So whether you are trying to market your products/services to current or prospective subscribers through regularly scheduled newsletters or direct commercial emails, there are certain laws that govern email marketing, namely the federal Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003.

The requirements of the Act are fairly straightforward, yet easily overlooked. Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $16,000, so non-compliance can be costly.

A few practices to consider:

·      Email headers and subject lines must be accurate and not deceptive.

·      You must disclose if your message is an advertisement.

·      Disclose and clearly state how recipients can opt-out or unsubscribe from your message.

·      To ensure your email doesn’t get flagged as SPAM or junk by readers, consider implementing a permission marketing approach by building your in-house email marketing list through direct sign-ups or other opt-in mechanisms.

More information can be found on the FTC’s CAN-Spam Act: A Compliance Guide for Business.

3) When working with other brands and companies, always have a written contract in place.

As a blogger or influencer in the digital space, you may be working with brands on marketing and advertising campaigns, and more often than not, you’ll have to sign a contract with terms that the company has proposed. Or you may be in a position where you have to draft your own contract. Either way, you want to make sure that you’re negotiating a fair deal for yourself.

As a freelancer, do not hesitate to put your expectations in writing and negotiate terms that are fair to both parties. Even if a contract is not required, having a written agreement (instead of oral deals or handshakes) with clear terms is more reliable evidence of the parties’ intentions and can significantly decrease the likelihood of future disputes.

4) Consider trademarking your brand and/or logo.

A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used in commerce to identify and distinguish the goods/services of one seller or provider from those of another, and to indicate the source of the goods/services.

As part of your broad marketing and branding strategy, you may consider trademarking your blog to protect your logo and any goods and services you provide that use your logo. A trademark will protect your brand’s unique identity from use by others in your specific business area and offer means of legal redress for unlawful uses of your logo. You can trademark a phrase, a specific logo, or even a sound. But before you decide to trademark any of your brand assets, be sure to do a search to ensure that it’s not already taken and/or in use by another company in your field. It is strongly encouraged to have an attorney file your trademark application to ensure that all the information requested is inputted correctly.

More information at the United States Patent and Trademark Office’s Trademark Basics.

5) Understand the basics of copyright law.

A copyright is a form of protection provided by U.S. federal law to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

U.S. copyright law is incredibly complex and nuanced, and as a blogger, it’s important to understand the basics to ensure your work is properly protected.

Under the Copyright Act, a copyright arises once your original work has been “fixed in a tangible medium.” For bloggers, this means that once you have written an original post, you have a copyright.

Another important provision of the Copyright Act is the Fair Use doctrine. Fair use is a legal exception to the exclusive rights an owner has for his or her copyrighted work. It permits limited use of copyrighted material without acquiring permission from the copyright holders. However, fair use is not the same as free use, and in some cases, it may not even be considered fair play. Whether or not you are within the boundaries of fair use depends on the facts of your particular situation.

More information at the United States Copyright Office’s Copyright Basics.


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