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#BBSummit12 Social Media Laws Presentation
- 1. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Social Media Laws Liza Barry-Kessler, J.D. Ph.D. Student, Information Policy #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 2. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Overview •Federal Trade Commission Guides •Copyright, Trademark, and Intellectual Property •Bloggers: Are you a business? •Resources #bbsummit12 •Q&A by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 3. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Disclaimer •This presentation is meant to inform you about the laws that generally apply to how bloggers and brands work together. •This is not legal advice. I am not your lawyer. •Your state may have additional applicable laws. •Don’t panic. #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 4. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Federal Trade Commission •The FTC is responsible for regulating “unfair or deceptive trade practices,” including ads. •Many state consumer protection agencies also have jurisdiction over ads and other consumer communications. •Laws apply to both #bbsummit12 bloggers & brands. by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 5. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago The FTC Guides •Disclose any material relationship between a blogger and a brand: – free product for review, – affiliate link, – advertisement, or – sponsorship #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 6. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago What Kind of Disclosure is Required? Clear and Conspicuous #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 7. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Clear? •No “legalese” or confusing wording. •“Brand A sent me this gadget to try, and I thought….” •“This post is sponsored by Brand B.” •“Brand C (an advertiser #bbsummit12 on this blog) makes the by@SocialRevUp best….” Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 8. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Conspicuous? •Sponsored post? At the TOP of the post. Not the bottom. Really. •Affiliate link? Hovertext or next to the link. •Placing disclosure info on a separate page is not conspicuous enough for the FTC, however, a “blog policies” page may still be a good idea. #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 9. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Example: Affiliate Link (WantNot.net) #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 10. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Example: Sponsored Post (CreatingMotherhood.com) #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 11. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Sponsored Content in Social Media •Twitter: Hashtags #spon or #ad •Facebook: Has Terms of Service and its own set of rules and regulations about sponsored content – contractual, not “law.” YOU have to follow the law, contract risks losing FB access but not litigation. •Vlog/YouTube: Say it upfront. Or disclose via graphics, early, long enough to be #bbsummit12 clear. by@SocialRevUp Brands & Bloggers Summit 2012 •Your voice/brand language. http://www.SocialRevUp.com
- 12. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Giveaways: Lotteries, Contests, and Sweepstakes •When can you give something away on your blog? •What do you need to be careful about if you decide to do a giveaway? #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 13. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Giveaways: Lotteries •A “lottery” is when you charge for the chance to win. These are heavily regulated by many states, and you should consult a lawyer in your jurisdiction before you do anything on your blog that involves asking people for something “of value” in order to maybe win a prize. •Money is the obvious trigger, but what is #bbsummit12 a “retweet” worth? by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 14. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Giveaways: Contests •A contest is where you give a prize for some kind of non-random achievement, like funniest picture or cutest baby. •Be clear about the rules, follow what you said you were going to do. #bbsummit12 •Check your state!!! by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 15. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Giveaways: Sweepstakes Most blog giveaways are random entry, ie, “leave a comment and you could win this bag of goodies.” This is legally a sweepstakes. •State and federal agencies govern sweepstakes: – The Dept of Justice, #bbsummit12 – US Postal Service, and by@SocialRevUp – The FTC, and STATES! Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 16. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Giveaways: Sweepstakes (2) •If you allow international participation, you must comply with laws from other countries. •If you allow minors, you may have additional special rules. •If you allow children under 13, you must follow #bbsummit12 the COPPA regulations. by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 17. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Intellectual Property: Copyright, Trademark, and Exceptions #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 18. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago What is Copyright? “Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works.” #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 19. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago What is Trademark? “A trademark is a word, phrase, symbol or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” This is primarily an issue #bbsummit12 for brands. by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 20. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Copyright (in the US) •When you write a blog post, it is automatically covered by federal copyright law. Same with original pictures, videos, podcasts, and music. •If you find your work posted by someone else without your consent, you can send their web host a takedown notice. #bbsummit12 •No copyright for recipes. Brands & Bloggers Summit 2012 by@SocialRevUp http://www.SocialRevUp.com
- 21. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Who Owns the Copyright? •Copyright ownership is a major issue when working with others, especially for money. •Do you have a contract or “Writers Agreement?” It should spell out ownership/rights of written material being produced. •This is particularly an #bbsummit12 issue for group blogs, by@SocialRevUp Brands & Bloggers Summit 2012 news/editorial sites. http://www.SocialRevUp.com
- 22. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Copyright Violations •What can you do when you find your work reproduced online without your permission? •Ask the person to remove it. •Send a takedown notice to their ISP/Web Host. •Register your copyright and file a claim against #bbsummit12 by@SocialRevUp them. Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 23. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Sample Takedown •Detailed example: http://foodblogalliance.com/a/how-to-deal-with-co •Elements required: Identify infringing content, URL of both infringing content and source content, and request that the infringing content be removed. #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 24. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Statutory Requirement “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law. I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive #bbsummit12 right that is allegedly by@SocialRevUp infringed.” <signed> Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 25. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Fair Use Copyright is not sacrosanct. “In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement.” #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 26. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Four Factors in Fair Use •The purpose and character of the use, •The nature of the copyrighted work, •The amount and substantiality of the portion taken, and •The effect of the use upon the potential market. #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 27. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago When in Doubt Get Permission #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 28. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Bloggers: Is Your Social Media Activity a Business or a Hobby? #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 29. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Business, IF… •There is a reasonable expectation of earning a profit; •The IRS says it is for profit if it made a profit 3 of the last 5 years, including the current year; •In-Kind and other non- cash income counts! #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 30. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Non-Cash/Miscellaneous Income??? •Anything that you receive, of value, in exchange for your effort/endorsement/work etc, counts as income. •Trips, registration for a conference, clothing, review items, electronics, event tickets, gambling winnings…. #bbsummit12 •Tax evasion is how they Brands & Bloggers Summit 2012 by@SocialRevUp got Al Capone…. http://www.SocialRevUp.com
- 31. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Ok…I’m in Business. Now What? •Blog Policies •Incorporating as a Business •Independent Contractor or Freelancer •Non-Profit Status •Hiring People #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 32. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Blog Policies? What should people reading your blog know about how you do business? •Do you accept review items? Individual advertisers? Political advertising? Are there limits? Sponsors? What do you provide? Advertising/Disclosure Policy. •What data do you collect? What do you do with it? Privacy Policy. #bbsummit12 •Do you delete comments? by@SocialRevUp Brands & Bloggers Summit 2012 When/why? Comment Policy. http://www.SocialRevUp.com
- 33. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Incorporating •First, check your state Secretary of State web site or other state government info portal. •OFTEN basic incorporation is do-it-yourself •Your choices generally include: – Sole proprietership – LLP #bbsummit12 – LLC by@SocialRevUp – S or C Corporation Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 34. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Too Many Acronyms!!! What you really need to know is this: If you are working with other people, incorporating your business can help you all be clear about how the business works, who is responsible for what, and who gets what share of the profits. •If you are working alone, #bbsummit12 incorporating MAY help by@SocialRevUp Brands & Bloggers Summit 2012 protect your personal assets. http://www.SocialRevUp.com
- 35. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Independent Contractor/Freelancer •If you accept independent contract assignments to produce work for other people – for example, sponsored blog posts on your personal blog, or product reviews for a 3rd party site – you may be considered by the IRS to be “self employed.” #bbsummit12 •The tax implications are by@SocialRevUp Brands & Bloggers Summit 2012 serious. Learn them! http://www.SocialRevUp.com
- 36. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago I Blog with a Mission – Am I a Non-Profit? •IRS 501(c)(3) Organization: Purpose must be religious, charitable, scientific, testing for public safety, literary, educational, amateur sports competition, or the prevention of cruelty to children or animals. •IRS 501(c)(4) Organization: “Social Welfare” organization, #bbsummit12 usually has a local focus. by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
- 37. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Hiring People Maybe you have a group blog, or want to hire expert writers for some specific topic on your blog. Hiring people, even volunteers, should be carefully thought through. •Writers agreements should spell out who will own which rights to the written work, and what happens if the site shuts down. #bbsummit12 •Written contracts with by@SocialRevUp Brands & Bloggers Summit 2012 designers, lawyers, etc. http://www.SocialRevUp.com
- 38. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Having Employees You can hire people to do stuff without their necessarily becoming your employee. However, if you hire someone as an employee, you should know a few things: •Bloggers are engaged in “interstate commerce,” so federal minimum wage laws apply. •Overtime laws also apply, although not necessarily to management employees #bbsummit12 who are salaried. by@SocialRevUp Brands & Bloggers Summit 2012 •State laws also apply. http://www.SocialRevUp.com
- 39. Rev-ing Up Connections @ Hard Rock Hotel - July 21, 2012 - Chicago Resources •FTC Internet Advertising: http://business.ftc.gov/documents/bus28-advertising- and-marketing-internet-rules-road •Small Business/Blogger Legal Help: http://www.newmediarights.org/ •Internal Revenue Service: http://www.irs.gov #bbsummit12 by@SocialRevUp Brands & Bloggers Summit 2012 http://www.SocialRevUp.com
Editor's Notes
- DISCUSS! This is easy in a blog post. This is much harder on Twitter. And still required.
- Do not try this at home.