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Influencer “Fails” Avoid These Three Legal Mistakes In Affiliate Marketing – Media, Telecoms, IT, Entertainment

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Influencer “Fails” Avoid These Three Legal Mistakes In Affiliate Marketing

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The influencer industry has ballooned in size and importance
since the first affiliate marketing network was launched fifteen
years ago. With this growth, however, comes increasing legal responsibility for those who profit off
it.

Celebrities make headlines for commanding upwards of $1M for
sponsored social media posts, but the average influencer is more
likely to be a young person, armed with an iPhone and a shoestring
budget. In a world where affiliate marketing, sponsored posts, and
giveaways trump traditional print advertising, influencers – from
nano-influencers to Kim Kardashian – must legally protect
themselves and their intellectual property. A good way to start is
avoiding the top three mistakes discussed below.

Mistake #1 Creating a valuable brand, but not
protecting it

Some days it seems like all influencers promote the same
products. Come July, you’ll notice every fashion blogger
modeling Nordstrom outfits prior to the department store’s
anniversary sale. “Mommy” bloggers will flood Instagram
with Walmart back-to-school sales each August. What differentiates
these influencers? They’re all selling the same products – in a
word, BRANDING. Whether a wholesome religious blogger,
healthy exercise queen, Instagram party girl, these are all brands
that create aspirations to help influencers sell products to their
followers.

An influencer can legally protect his or her brand throughout
the United Sates through federal trademark registration. Kim
Kardashian, after all, owns a trademark for her name for
“advertising services, namely, promoting the brands, goods and
services of others; [and] endorsement services, namely, promoting
the goods and services of others” and has over 100 pending
trademark applications and registrations. Obtaining a trademark for
a personal brand, whether it’s a name, an Instagram handle, or
a blog title, is a cost effective to way to ensure that the
influencer retains control of the brand and protects against
infringement by others.

Mistake #2 Doing business without a
contract

The relationships between influencers and their business
associates are often informal, with agreements whittled down to
quick exchanges via email and Instagram DMs. This arrangement,
while uncomplicated, lays the groundwork for either party to renege
with little consequence. Things quickly become complicated when one
party doesn’t fulfill its end of the deal.

Influencers who don’t want to be taken advantage of should
require a legally binding contract that sets out the important
terms of the agreement, before endorsing any products, services, or
companies. To that end, a lawyer can, and should, review contracts
offered to the influencer by the sponsor, or prepare a contract
that protects the influencer’s best interests. If well drafted,
such a contract can be written in plain English and does not have
to be needlessly complex.

Mistake #3 Violating copyrights

Creative works, like photos or even blog posts, are protected by
copyright. Registering the copyright to a work entitles the owner
to exclusive rights to publish, use, and distribute it. While
exceptions exist, most copyright violations incur significant
penalties, including statutory monetary damages that can range in
the amount of $750-$150,000 for each work infringed. Gigi Hadid, a
celebrity influencer, was famously sued three times for copyright
infringement twice for posting photos of herself owned by
paparazzi and once for posting a copyrighted photo of her
boyfriend. Influencers without Hadid’s legal budget should
always carefully consider copyright when posting a photo for
commercial use.

It’s often said that the best defense is a good offense.
With that in mind, as influencing becomes more lucrative and
sophisticated, influencers should proactively protect themselves,
their brands, and their legal interests.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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