Navigating the legal side of influencer marketing can be tricky. Luckily, we’re here to help with ten influencer marketing laws you need to know.
by Ariana Newhouse
When it comes to influencer marketing, the last thing you want disrupting your campaign is being on the wrong side of the law. It’s true. Influencer marketing is accessible to brands of all sizes and budgets. You can create scrappy campaigns that bring in big ROI. But none of your killer creativity will deliver results if you fail to follow FTC guidelines and market within your legal bounds. You have to follow the influencer marketing laws.
Whether you’re a small brand without a legal team, or a marketer looking to brush up on your influencer marketing laws, we can get you started. We’ve compiled ten laws that we think are the most important to consider when building influencer marketing campaigns. The first step to getting your contracts tight and your legal team smiling is to know your stuff. So get ready to learn the basics.
It’s important to note that this post does not constitute legal advice. We’re simply fellow marketers sharing knowledge. The best thing you can do to ensure your brand is operating safely within its legal limits is to consult your lawyer. An experienced legal team can go a long way in ensuring the success and longevity of your brand and influencer partnerships. If you don’t have a legal team of your own, working with agencies like us here at The Shelf can give you access to legal guidance and tried and true campaigns and contracts.
Alright, with that said, let’s dive into the ten influencer marketing laws you need to know.
The purpose of FTC regulation is to ensure advertisers are being upfront with customers. So when it comes to FTC guidelines, disclosure is everything.
All endorsements must be “clear and conspicuous.” This means any endorsement that’s an ad (AKA one you paid for in money or products) must be disclosed in a super obvious way that’s easy to understand.
One of the easiest ways to add these disclosures is by using hashtags. These can include: #ad, #sponsored, #XYZ_Ambassador, and #XYZ_Partner. The FTC recommends getting specific and clear with your hashtags. Using underscores like those in the list above helps make hashtag disclosures easy to read and immediately understandable.
The June 2023 FTC guideline updates really cracked down on reviews. If you’re offering free products in exchange for reviews, you have to make it clear that reviews can be either positive or negative. Essentially, you can’t bribe customers or influencers to leave positive reviews with free products. If you are offering incentives for writing reviews, you have to make that super clear. And fake negative reviews about competitors are considered a deceptive practice and also not allowed. (More on this in the libel, slander, and defamation section.)
Basically, don’t tamper with reviews. You cannot delete or hide negative reviews or only post positive ones. You also can’t use reviews created by bots (or any fake entities) or written by those who have never used the product.
Intellectual property (IP) is the tangible result of creativity. IP refers to creations of the mind, like inventions, artistic works, and yes, content. Basically IP is the perceivable outcome produced from an idea. The creator is the owner of that intellectual property. And IP (like the content created for your influencer marketing campaigns) is subject to copyright law.
Copyright is a pretty simple concept. If you created it (meaning it’s your IP) you own it — until and unless you enter an agreement that says otherwise. For brands, it means influencers own the UGC they create if brands do not include clauses in influencer contracts that clearly identify the content as work made for hire.
Essentially, a work made for hire is something commissioned by an entity different from the individual creating it, where the creator has entered into an agreement that the commissioning entity is the legal owner and documented author of the work. Influencer contracts should be customized to define the specific scope of work, copyright ownership, and distribution rights.
Fair use is all about when and how you can use intellectual property that doesn’t belong to you. It is permissible to use certain media and copyrighted material in a limited capacity in the content you create — as long as it is properly disclosed and legally obtained. And of course, it has to follow the platform guidelines on whatever social network you’ve posted it on.
In the world of influencer marketing, we sometimes call content that doesn’t fall within fair use a third-party crasher. Third-party content includes images of people, products, locations, and other content that doesn’t belong to you (or the influencer creating the content). If your influencers are creating content that includes third parties, it could bring up fair use issues.
If there are other people in an image or video, you may need their written consent if you want to use that content on social media. Without consent, you could be violating their rights to privacy and end up in some legal trouble. Similarly, if your content features any third-party logos, products, slogans, songs, or anything of that nature, they can also restrict your ability to use the content.
Basically, you have to legally play fair. In the United States, social media laws include fair advertising. It’s like the golden rule. Treat other brands the way you’d like to be treated.
Be truthful and honest in your claims. Both in reference to your own offerings and your competitors. If you play dirty, you’ll pay for it. Don’t lie or embellish. And don’t use other people’s logos or products to advertise your own products. This means no unsubstantiated claims and no falsely persuading customers.
On the topic of falsely persuading, defamation is the act of producing a false statement about a third party that damages its reputation. Libel refers to defamation that is communicated or published via text or image. And slander refers to defamation that is spoken or communicated via audio.
In the world of influencer marketing, it’s likely you’re communicating to your audiences with the help of influencers in the form of video, images, and captions. To ensure your campaigns are free of libel and slander, stay away from defamatory language and imagery in your campaigns.
Play fair. Don’t lie about your competitors. Don’t use competitor logos in a smear campaign. Keep it positive and push your own brand. Don’t drag down the competition.
By default, U.S. Copyright Law automatically assigns ownership of content and the right to edit, distribute, and modify it to the original creator. In the world of influencer marketing, that means the influencers you work with own the content they create for you unless explicitly stated otherwise.
Contracts vetted and created with the guidance of legal counsel can help you establish ownership of any intellectual property created for a campaign. This can include an explicit transfer of ownership from the creator to the brand or a breakdown of how ownership will be shared between the two parties.
As of this writing, it is legal in 49 states for child influencers to be the subject of content that earns their parents millions of dollars without the children themselves being entitled to a dime. The one state where it’s no longer legal? Illinois.
In August of last year, Illinois passed groundbreaking legislation that guarantees partial compensation for child influencers younger than 16 years of age. According to Teen Vogue, the legislation says kid influencers are entitled to “at least 30 percent of the [adult vlogger’s] compensated video content…[which] included the likeness, name, or photograph of the minor.” That is if the content meets a certain monetization threshold. In the past few months, six other states have introduced legislation that mirrors the Illinois ruling. These include Maryland, California, Georgia, Missouri, and Ohio. Read all the details in our post dedicated to kid influencer laws.
The potential ban of TikTok in the U.S. is causing many marketers to create contingency plans. The proposed ban would make it illegal to distribute or host TikTok in the U.S. This would affect its 170 million American users and of course cause a major disruption in the advertising market.
Many marketers are now bracing themselves for this impact and rethinking their strategies. With ad investment previously channeled to TikTok potentially up for grabs, platforms like Meta, YouTube, and Google are set to benefit the most from the ad revenue redistribution. Nevertheless, the fight for market share and the creator economy will be a key factor in determining who ultimately triumphs in this situation.
As of this writing, the US House of Representatives has given its approval to a proposal that could mandate TikTok to divest its U.S. operations amid concerns of national security. The bipartisan bill, designed to curb the dominance of apps and websites linked to foreign nations, has progressed to the Senate for a final verdict. As of this writing, the Senate has not yet voted on the bill. If the bill passes the Senate, it will land on President Joe Biden’s desk for final validation.
Experts disagree on the likelihood the bill will pass. TikTok has shown resistance, citing potential harmful effects on the economy and countless small businesses. China views the proposal as a blow to its businesses. Should the bill pass into law, TikTok would be required to complete a sell-off within 165 days to maintain its operation in the U.S.
We hope this helped you gain a basic understanding of your legal limits and responsibilities as an influencer marketer. Like we mentioned above, the best way to know you’re operating within the law is to consult a lawyer. Protect yourselves, your brand, and your influencer partners by working with a trusted legal team to ensure your contracts and campaigns are cool (legally speaking).
If you’re a smaller brand without the resources to hire your own legal team, working with an agency that has in-house legal is another great option. As you know, we’d love to work with you. Schedule a strategy call with one of our experts today, and we’ll guide you through all the legal stuff so you can focus on bringing home the bacon for your brand.
We pulled together a nice, tidy rabbit hole for you on related topics that will make you an expert at the legal side of influencer marketing. #yw
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Digital marketing strategies fit together like puzzle pieces.
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