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3 Contracts Online Creators Must Have in Place

woman smiling because she has contracts online creators must have in place

By the end of this post you will know the three contracts that online creators must know about, in my opinion. And I’m not just telling you what those contracts are. I’ll give you some key terms and the problems that each of these documents will prevent. So let’s dive in.

Contracts Online Creators Must Have: Terms of Use

first in contracts online creators must have is a solid terms of use

First is Terms of Use. And Terms of Use are a contract between you and users of your platform, your community, your app, your site.

Terms of Use: Key Terms

They tend to be kind of long, so it’s hard to pinpoint just two or three key terms, but, some of those key terms are:

Prohibited Conduct. (This can include a code of conduct for a membership site). This is grounds or rights to terminate a user’s account if they engage in certain activity. In other words, reasons why you might terminate somebody’s account. 

Limitation of Liability. Limiting your liability if things go south.

Affiliates Policy. A sweet explanation of affiliate links you might have on your site.

Problems Terms of Use Can Prevent

Manage Conflict With Users/Audience. If you have the proper language in your ToU, you can handle this quickly and easily. If something goes awry you have immediate recourse, according to your Terms of Use.

CYA — you know, to cover yourself — if something goes wrong. Limiting your liability if someone gets hurt, or doesn’t follow your instructions properly. Or maybe their business is hurt or they suffer monetary damages (or at least they say they do) because of some of the content that you’ve put out there. The Terms of Use can limit your liability, and limit the money that someone can actually go after (to the extent it’s allowed under applicable law).

Over all, Terms of Use require your users to agree to the Terms of Use before using your site or your platform.  And if they don’t agree, then bye-bye!

Contracts Online Creators Must Have: Contractor Agreement

next in contracts online creators must have in place is a contractor agreement for use with people like copywriters, graphic designers, social media marketers

A Contractor Agreement is an agreement between you and any contractor that you use. This can be a photographer, a copywriter, a graphic designer, or a social media marketer. The contract lays out the terms of your relationship with that individual. A lot of times contractors will have their own service agreement that they will send to you, but you would be surprised how many people don’t have contracts. So you might need to have your own Contractor Agreement template on hand.

Contractor Agreement: Key Terms

IP ownership. This is key, because of that copyright myth that you’ve heard me talk about before. People think that because they’ve paid a contractor to create something, that they own it, but that is not true, right? Under US copyright law, any copyright transfer has to be in writing in order to be valid. (If it’s not done by an employee kind of in the course of their job.) So, having that IP language in a contractor agreement is crucial if you want to make sure that you own that intellectual property. 

Non-solicitation. This is a little bit different from non-compete, and it depends on state law, but it basically prohibits a contractor from soliciting either other coworkers or other contractors away from you, or your clients or customers away from you, for a certain period of time. So that’s a little a little boost in protection.

Company Systems and Confidential Information. If a contractor needs access to your passwords, social media accounts, or devices, listen up. Likewise if contracts have access to confidential information like analytics data. Having something in a Contractor Agreement that spells out a) how to handle confidential information and b) what happens if that confidential information is misused is priceless.

Problems A Contractor Agreement Can Help You Avoid

Essentially, it’s all about peace of mind.

Peace of mind when it comes to knowing that your IP ownership is secure.

Peace of mind when it comes to treatment and use of your confidential information and systems.

Peace of mind when it comes to knowing that your relationships with your customers are safe.

All of those things! And, of course, having a document that that has it all laid out so that you and the contractor have a mutual understanding, in one spot, as to what’s going. 

Contracts Online Creators Must Have: Collaboration Contract

last in contracts online creators must have in place is a collaboration contract

The last document is a Collaboration Contract, and that’s different from a sponsorship or kind of an influencer or sponsorship agreement. It’s almost like a styled shoot in the event-planning world. You collaborate with another business in connection with a launch, an event, something like that where you are both promoting something together, like a joint promotion arrangement.

Collaboration Contract: Key Terms

Common terms: Well, you have “roles.” You want to make clear who’s doing what.

There is “ownership of intellectual property,” so who owns the photographs, any webpages, any copy, any posts. There’s use of any IP, so who can use it and for how long after the campaign or after the venture has ended. And then there’s “confidential information,” so again, to extent you need to exchange confidential information to move this thing forward –whether it’s analytics information, your target market information, information that you use in connection with any Google or social media ads – how each of you must treat the other’s confidential information.

Problems that a Collaboration Agreement Could Avoid:

Avoid Discrepancies. Make sure everyone knows who’s doing what kind of makes sure everyone’s on the same page there;  

Avoid mistreatment or misuse of IP. Maybe you’ve decided that if you create something, each of you create something, you own whatever you’ve individually created. That’s fine, but just making sure that those things are clear and put in the document so that everyone’s on the same page.

So you’ve got your Terms of Use, you’ve got your Contractor Agreement, and you’ve got your Collaboration Agreement.

I hope this post has helped you understand why these documents are important, how they come into play, and the problems that they might help you avoid.

Got an online business? Do you like free info? Click below to learn four things you can do right now to protect your business online. 

Make More Money with Trademark Licensing in 2020

Licensing your trademark is a great way to make some extra money without reinventing the wheel. By the end of this post, you’re going to understand what a license is, some special things about trademark licenses, and examples of ways you can make more money with trademark licensing in 2020..

First, what is a license?

A license is another word for “permission,”

It’s not an exclusive grant of rights. (Though there are “exclusive” licenses, that’s not what we’re talking about, here.) In other words, you are not selling or granting your trademark to someone else, you are simply giving them permission to use it, but in a very specific way.

And, speaking of that specific way, there are some special things to think through when you are licensing a trademark as opposed to licensing artwork or creative work.

Special aspects of a trademark license: QC, QC, QC

When you’re licensing a trademark, you are licensing your mark’s “good will.” (If you don’t, it’s considered a “naked license” and you could lose your rights.) Good will is your trademark’s reputation and brand recognition. And for that reason, QC, QC, QC. In other words: Quality Control.

It’s not worth it to make more money with trademark licensing if you don’t have control over how your brand’s reputation is used. You want to be absolutely sure that you have some voice, some control over how your trademark is used. You want the power to control the area in which your trademark will be used by this other company.

Because it is tied back to your brand, you want to be absolutely sure that you have quality control over things like the materials that are used, or maybe artistic aspects. You don’t want the licensed use to stray from your core brand.

So, to paraphrase,, you are essentially “partnering” with another company that already does what you’re wanting to do in connection with your trademark.

A few trademark licensing examples

Check out these examples of how to make more money using trademark licensing:

example of a fashion or beauty influencer making more money using trademark licensing
  • You are a fashion or beauty influencer that wants to create a beauty line. So, you partner with BeautyCounter or another existing makeup line to lend your brand name to a new, specific line within that existing brand.
  • You are a blogger on productivity and planning in business and you want to release a planner under your brand name. You partner with and license your mark to a company that already makes planners, they already have the supply chain nailed down. The company already has suppliers, it knows how to do this, so that all you have to do is maybe be involved in the creative side and, obviously, lend your mark, — and thus, your reputation, your brand — to this product.

Martha Stewart is kind of the mecca of trademark licensing. She started her brand the way she started it. But now, she does sheets and all kinds of things in connection with Macy’s.

Again, if you leave with one thing today, remember that quality control is an essential part of a trademark license. A trademark license could be a great opportunity to expand your brand without reinventing the wheel.

So I hope this helps you understand the possibilities when it comes to making more money using trademark licensing.

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How A Supermodel’s Post Could Influence Copyright and Photo Law

a supermodel who could be influencing copyright and photo law

So, you may have missed this lawsuit filed over the summer, Summer 2019, and it was an interesting one in the world of copyright and photo law. Gigi Hadid who, of course, is a famous supermodel, was sued for copyright infringement. And here a couple little details.

Background of the lawsuit

A paparazzi company filed the lawsuit and claimed copyright over a photograph of Hadid.

The photographer took the photo of her as she was exiting a building. Instead of hiding her face or running away, she smiled and posed and of course the cameras clicked away. Well, when she saw the photograph, she liked it, cropped it, posted it to her Instagram account, and, of course, that’s what caused the copyright infringement allegations and lawsuit. She stopped and smiled and posed for this photo — which is her profession. And then was sued for using it.

Well the judge threw out the lawsuit because you have to have a registered copyright in order to file a lawsuit, and the paparazzi company hadn’t registered the photograph in time to file the lawsuit. (Silly mistake.)

How this situation could influence copyright and photo law

The question is this: Is it infringement for a professional model to post a photo of herself that she did not own where the photograph wasn’t candid and she had actually participated in the creation of this photo?

Before the suit was dismissed, her lawyers alleged fair use and implied license. “Implied license” means that somehow, the photographer granted Hadid permission to use the photo because she participated in creating it. (That’s a toughie.)

We won’t know, of course, whether these arguments would pass muster in a lawsuit since the lawsuit was thrown out. But maybe another celebrity could make this argument. “Because the subject participated in creating this photo, there was some kind of joint-ownership or joint-creation by the celeb/subject. And, thus, no copyright infringement.” Now that could really change copyright and photo law.

I want to be clear that I’m not talking about your ordinary session. (One with a couple or a family or children.) That’s different. What we’re talking about here is the context of photos taken in public, by paparazzi, of a celebrity who just happens to pose and, arguably, aid in the creation of photos.

The judge dismissed the case, so we’ll never know what might’ve been. Still, it’s interesting to think about what might happen in the future for a similar case under similar circumstances.

What’s that? Free info? Yes, please. Click below to learn four things you can do right now to protect your business online. 

Learn to Create a “Legal” Podcast Ad Before Hitting Record

I think it’s safe to say that it’s a goal for every podcaster is to either use the podcast as a tool to bring in business directly, or to line up some bangin’ sponsorships and advertisements on the show. (Maybe both.)

But there are some rules for advertising on podcasts.

This post will educate you on “legally” advertising on your podcast and by the end you’ll have a good understanding of certain rules that you need to keep in mind if you want to create a “legal” podcast ad.

Online sponsorships in general

So if you’ve been following Spear IP for a while, you’ve heard me talk about sponsored posts on instagram and influencer and blogger sponsorships, right Essentially, the FTC says that you must be fair and clear and transparent when there is a sponsored relationship with a brand that you are promoting.

So how does this apply to podcasts? Well, if your audience has to ask “Was that an advertisement just now?”

You’re not doing it right.

Just as with the instagram and influencer space, in the podcast space it must be clear to your audience when there is a sponsorship relationship with a brand.

Remember, too, that you don’t have to receive actual money in order for there to be a sponsored relationship with a brand, right? If they send you free goods or if you get free services in exchange for promoting a brand on the podcast, that’s a sponsored relationship.

A quick example of a “legal” podcast ad

create a "legal" podcast ad before hitting record

So how do you create a “legal” podcast ad?
Well, one of my favorite examples is on the podcast The Sporkful.
They have this great couple of variations of a sound reel that goes something like “Mmm, time for some advertisements! Yummy!”  (Hear it for yourself.) So obviously, the content that follows is an advertisement.

You don’t have to go that far, but something like a sound effect, to kind of break up the actual podcast content from the advertising content, that could work, of course saying that there’s a sponsored relationship or saying that it’s an advertisement, or that the podcast is powered by or sponsored by a company, that’s pretty clear.

An easy-to-understand breakdown of the rules for creating a “legal” podcast ad

Keep in mind that a clear disclaimer or a clear disclosure is not ambiguous.

And you can stay on brand when you make that disclosure! It doesn’t have to be dry or technical or super legal-sounding. if you have a personal experience with a brand, or a product, or a service, you can tell that story, it’s just that it should still be clear that there is a sponsorship at play. Your listeners shouldn’t question whetheryou’ve received something in exchange for giving that testimonial about the brand.

So there you go. You need your clear disclosures, and now you have a few ways that you can set off that ad content from the actual body of the podcast episode.

I hope that those things help you understand certain rules when the time comes to create a “legal” podcast ad.

And hey, if you’re interviewing guests for your podcast, check out Spear IP’s Podcast Guest Contract Kit™.

What’s that? Free info? Yes, please. Click below to learn four things you can do right now to protect your business online. 

3 Things to Think About When Choosing a Trademark for your E-Course

brainstorming session when choosing a trademark for your ecourse

By the end of this post you’re going to have a good handle on what trademark strength is and what descriptiveness is, and how they kind of play a role and in naming your e-Course. You will also have a couple of real-life examples of what can happen when you choose a descriptive trademark for your eCourse, and you’ll have an action plan in the form of a little exercise to do when naming your e-course programs.

The Spectrum of Trademark Strength, Descriptiveness, and How They Affect Choosing a Trademark for your e-Course

Trademark Strength

So first, the spectrum of trademark strength. Briefly, the trademark strength spectrum speaks to how protectable a mark is, at least initially. I have another post that speaks through the whole spectrum of trademark strength, but this post will focus on descriptive marks and online courses. 

trademark strength spectrum for use when choosing a trademark for your e-course
A little primer on the different levels of trademark strength


A descriptive mark describes a quality, characteristic, function, or purpose of the service offered under that brand. “Distinctive” is another way of saying “protectable.” Essentially, it’s that legal term that says that a mark is strong, identifiable, etc. 

Compare a mark like HOME GOODS to a mark like SPOTIFY. You know what you’re going to find when you walk into a store named HOME GOODS. But when you hear SPOTIFY, at least the first time you hear SPOTIFY, you’re not really sure what that company is about.

But on the HOME GOODS example, for the same reason that you know exactly what you’re going to find when you walk into that store, it’s also hard to stop another store from using that phrase “home goods” in connection with a store that sells home goods.

SPOTIFY, on the other hand, is so unique and so “distinctive” that right away, the owner might be able to stop someone from using a similar mark.

Now, descriptive marks like HOME GOODS, like SPORTS AUTHORITY, like BED BATH AND BEYOND, can earn that distinctiveness factor over time. Because it’s been used for so long it has such a huge following and huge market recognition, etc. HOME GOODS has earned that distinctiveness that’s usually reserved right off the bat for stronger marks like SPOTIFY.

The Supplemental Register

A lot of times if you file to register a descriptive mark with the US Patent and Trademark Office, the Trademark Office will require you to move it over to the Supplemental (or secondary) Register. 

The Supplemental Register is fine, and it does have some of the benefits that the Principal Register has:

  • You get to use that R-in-a circle symbol; and
  • Your registration acts as kind of a roadblock to later filed similar marks,

(to name just a few benefits).

But, the Supplemental Register just doesn’t have the same protections that the Principal Register has. Some of those beefier protections are:

  • The registration acting as notice of the owners claim of ownership and the validity of the trademark;
  • Filing for incontestability later. (I know I’m using a lot of legal words but “incontestability” is a huge thing in the trademark world. It basically severely limits anyone’s ability to challenge your trademark a few years down the road.)

You can file a new application on the Principal Register for a descriptive mark after it’s been registered on the Supplemental Register but you’re paying to register the mark again.

So when you’re choosing a trademark for your e-course, why not just choose a distinctive strong trademark from the get-go?

Real-World Examples of Choosing a Descriptive Trademark for your E-Course

real-world examples of choosing a descriptive trademark for your e-course

Okay so I’ve got two real-life examples for you from mega, female digital empresses. And my big disclaimer is:

I don’t represent either of these women, I’m just making observations based on information that’s publicly available from the Trademark Office!

So example number one is Marie Forleo’s B-SCHOOL. B-SCHOOL was registered but it was initially rejected based on descriptiveness. (‘Cause, you know, “B school” is how every college kid refers to “business school.”) The Trademark Office suggested that it be moved over to the Supplemental Register. (Check out the record for yourself, here.)

Another example is Amy Porterfield’s LIST BUILDERS SOCIETY. The LIST BUILDERS SOCIETY trademark was also initially rejected based on the descriptiveness and moved over to the Supplemental Register. (That record is here, if you’re interested.)

An Exercise When Choosing a Trademark for Your E-course

So here’s a little exercise to run through when you’re brainstorming ideas for your eCourse names.

You want to break up the page into three columns.

In that first column, you’re thinking through those marketing phrases, keywords or keyword phrases — things that your audience might search for when looking for a course like yours. These are going to be your descriptors, your descriptive words, right? Those terms might get you into Supplemental Register territory on their own.

In the middle column, think about the transformation you want your customer to go through when completing your course. Focus on the customer and what they will be once they complete your course.

And then, in the last column, you’ve got your brand name. This is your existing, core brand name that all of this will be housed under.

Now use some combination of the three and start working towards a strong trademark. Those first two columns could land you into descriptiveness territory, but now you have an understanding of what a descriptive mark is, right?

At the very least you could have blah blah blah descriptive mark by [your brand name] …whatever your brand name currently is.

So remember, while descriptiveness can be your friend with marketing and in connection with marketing purposes, it might not be your friend for trademark purposes.

I hope this post gave you some things to think through when you are going through the process of choosing a trademark for your e-course.

What’s that? Free info? Yes, please. Click below to learn four things you can do right now to protect your business online. 

Re-Sharing User-Generated Content, Legally

Let’s talk about re-sharing user-generated content, legally, on Instagram. By the end of this post, you’ll understand 1) what user-generated content is, and 2) what it means to share user-generated content while complying with copyright law.

There are a few ways that this can come up.

The first is where a brand has tagged you in a photo where maybe they’re talking about you. This could be in influencercontext, or this could be just any user on Instagram tagging a product that they like or use and talking about it. Technically speaking, even though they’re tagging the brand or they’re talking about a product, you do not have consent to share a photo that you don’t own unless you seek permission. This is because of copyright law, of course. Usually the person that creates the content — like a photograph — owns that content. You may be able to seek a license or permission to use that content, but you don’t own that content. Giving someone credit or linking to her account is nice, but, number one, might not be necessary, and number two, it’s not enough to “absolve” you from copyright infringement. 

The second scenario is summed up in this question: what if it’s already on Instagram? If it’s already out there, isn’t it free to use? Answer: NO. Instagram’s own “Community Guidelines” kind of talk about this. The guidelines say: 

Share only photos and videos that you’ve taken or have the right to share.

Instagram Privacy and Safety Center, Community Guidelines

Instagram also goes through a little spiel on intellectual property rights and copyright and says,

The best way to help make sure that the content you post to Instagram doesn’t violate copyright law is to only post content that you’ve created yourself.

Instagram Help Center, Copyright

… and they’re right.

A lot of people go by the adage of “just give them credit and you can use it” but that’s that’s not legally correct. In other words, to put it simply in one sentence, you should be seeking permission for every photo — whether it’s a story or photo in your feed — before re-sharing it.

If you’re concerned whether you’re re-sharing user-generated content, legally, it’s better to ask permission before posting, just to be safe!

What’s that? Free info? Yes, please. Click below to learn four things you can do right now to protect your business online. 

Why Using Photos from the Internet is Usually a Bad Idea

Using photos from the internet can be such a source of headache. By the end of this post, you’re going to understand why it’s probably not a good idea to use images that you found on Google Image Search or Pinterest in connection with your business, and what you might do instead.

Common misconception: a lot of folks think that images that you find on Google Image Search or on Pinterest are in the public domain, or free of copyright, or free to use, and that could not be further from the truth.

Google catalogs images from everywhere, all kinds of different websites without regard to copyright ownership. So by using an image from Google Image Search or from Pinterest, you don’t know just by looking at the image whether it’s protected under copyright law, and you certainly don’t know whether you have permission from the owner to use it. In fact, I would assume that you don’t.

The issue is copyright, which of course speaks to who owns the photo or who owns the image, but also “right of publicity.” And remember, that right of publicity is an individual’s right to control how their name, image, and likeness is used for a commercial or business purpose. So whoever it is that appears in that image might not want their name, image, or likeness used in connection with your business purpose. 

What to do Instead of Using Photos from the Internet

If using photos from the internet can get you into trouble, what other options do you have? Well, there are plenty of reputable stock photo websites out there, some of which say “here are do-whatever-you-want-with-them photos” sometimes those sites have strings attached, so maybe it’s “do- whatever-you-want-with-them” photos… so long as you give credit or attribution.

Sometimes the photos can be used for personal use, but if you want to use it in connection with a business then you have to pay an extra license fee. 

So make sure and read the fine print, read the Terms of Use for those stock photo sites to make sure that you’re using them and compliance with their rules their license terms.

That is a much better option than using images from Pinterest or from Google Image Search.

What’s that? Free info? Yes, please. Click below to learn four things you can do right now to protect your business online. 

Anatomy of an Influencer Endorsement Contract

If you have a dedicated following in your niche market, you might have dipped your toe in the affiliate pond, creating sponsored content with brands that you adore or just plain believe in. Or, you’ve found the perfect ambassador for your brand. Someone with a decent sized following that is (more importantly) very engaged. You know your sales will take off after affiliating with this influencer.

Sound familiar? Then this post is for you. It dissects some important provisions that a brand owner and influencer are likely to hash out when entering into an Influencer Endorsement Contract. Remember, contracts are you friend! (Or they should be.) A good contract makes sure both parties are on the same page so there is no ambiguity. It eliminates the need to comb back through texts, emails, or DMs to figure out what you agreed upon.

Disclaimer: Of course, this doesn’t cover each and every provision you’ll find in an Influencer Endorsement Contract. It does go through some important provisions that a good Influencer Endorsement Contract should cover. When in doubt, please contact a lawyer.

The Sponsored Content & Platforms.

A good Influencer Endorsement Contract will get very specific on the deliverables. And “deliverables” means whatever the Influencer is providing or “delivering.” What type of content are we talking about — a photo + caption? Photo or video-only media (like Instagram Stories or Snapchat)? A blog post? A blog post and a photo + caption? There shouldn’t be any question as to what’s covered, here.


Is the Influencer expected to post daily? Weekly? Monthly? Or maybe this is a one-off, one-time thing? Either way, a good Influencer Endorsement Contract will spell it out.

Exclusivity in Brand’s Field.

Many times, an Influencer will be expected to say “sorry, no” to brands competitive with the brand that’s hiring them for a specific endorsement campaign, at least for a certain amount of time during and/or after the term of the relationship with this brand. If that’s the case, the Influencer Endorsement contract should say so. It should also specify the exclusivity period that applies after the contract ends. One month? Three? A year? 

IP Ownership.

It’s common for IP ownership to go to the Brand, since the brand is paying the Influencer to post (and, sometimes, create) content in support of the Brand. Still, depending on the reach and “muscle” of the particular Influencer, ownership could go the other way. Either way, remember that copyright ownership usually goes to the creator by default. If Brand and Influencer agree otherwise (or even if they don’t), it behooves them to put that understanding in writing.


Compensation can come in the form of free goods provided to the Influencer, a lump sum payment, a percentage of sales, or some creative combination of these options. A sound Influencer Endorsement Contract will make the form of compensation, and other payment dates and details, clear.

Approvals and Brand Guidelines.

Approvals often come down to who has more bargaining power, although again, because the Brand is paying for an endorsement, a favorable Influencer Endorsement Contract should give some level of approval rights to the Brand. Many times a Brand will make Brand Guidelines part of the agreement. Brand Guidelines consist of text and image guidelines. For example, no swearing, no cigarettes, no religious references, no references to Brand’s competition by name, etc. An alternative to a Brand’s unfettered approval rights is to allow objection/rejection of content solely as it doesn’t comply with the Brand Guidelines. (After all, the Brand is likely familiar with the Influecer’s voice and style, or the Brand wouldn’t have the desire to enter into this agreement in the first place.)

Compliance with Laws.

Remember that FTC crackdown we’ve talked about? (Thanks, Fyre Festival.) The Influencer Endorsement Contract should make clear that whoever is responsible for the copy — whether that’s Influencer or the Brand — is responsible for complying with the FTC’s guidelines on disclosing that promotional connection between Brand and Influencer. 

So what’s a guy or gal to do when it comes time to enter into an influencer-brand sponsorship arrangement? You have options. For a bespoke contract that speaks to your each and every need, you can (and should) contact a lawyer. But for the DIY-ers out there, Spear IP is officially releasing an Influencer Endorsement Contract Template as part of its contract template arsenal! Click below to check it out. And, for being a devoted follower of the Spear IP blog, use code BLOG for a $10 discount!

What’s next? Click here to download your [free] Essential Legal Checklist from Spear IP.

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Online Marketing Lessons from Fyre Festival

legal lessons about online marketing

By now, you’ve seen the documentaries. (One aired on Netflix; the other, on Hulu.) It’s the kind of story you end up watching with your hands partly covering your eyes, for several reasons. That the situation departed from the planned luxury music festival experience is an understatement. To go from advertising a private villa experience to directing customers to rescue tents, something had to go wrong somewhere. Well — spoiler alert — multiple things went wrong, on multiple fronts. “Went wrong” is putting it lightly. And yes, legal action ensued on both the criminal and civil sides.

So what can we learn about online marketing from the Fyre Festival fiasco? This post will go through influencer marketing, email list manipulation, and false product descriptions on a website.

Online Marketing Lessons, Lesson 1: Using Influencers in Your Online Marketing…the Right Way

The Background: An influencer doesn’t have to be a reality television star or even Kim Kardashian to qualify as an influencer. An influencer is simply someone that has monetized his or her identity online. Remember how, in 2017, the FTC started cracking down on influencers and sponsored posts on social media? Well, that was a result of Fyre Festival’s flop. You see, supermodels and other influencers were posting about and promoting the festival. The FTC’s concern, after the fact, was that ordinary users on the Internet weren’t able to tell the difference between genuine opinion and a sponsored relationship between the Festival and the influencer.

The Lesson: Influencers must now be clear when there’s a sponsored or promotional relationship between the influencer and the brand. That doesn’t necessarily mean they have to disclose the amount of money involved. It can even be done in a playful or non-awkward way, e.g., “When [brand] first approached me….” But hard-to-miss clarity is key.

Online Marketing Lessons, Lesson 2: The Sacred Email List

The Background: There are rules for collecting email addresses, and there are guidelines. Thanks to the GDPR, everyone is pretty well aware that you have to have a “legal” basis for collecting personal information. The most common legal basis is “consent.” And not just enter-your-email-address-above-this-pre-checked-box-and-click-yes consent. That won’t cut it any longer, now that the GDPR is boss. Consent under the GDPR means giving the user enough information to make an actual yes or no decision. (That is, “Yes (or no), you can collect my information and use it in this way.”)

Master Serivce Agreement MSA Software Development Maria Spear Ollis Spear IP Nashville Tennessee Tech Attorney

The Lesson: One of the documentaries shows someone, allegedly at the behest of the Fyre founder, emailing Fyre Festival attendees regarding future events. And not just future events, but tickets to the Masters, the Grammys, the Met Gala, and other high-society, high-ticket events. Well, the law is pretty clear that you can’t contract away your responsibility to comply with legal requirements. In other words, if you hire someone to do your email marketing, you still have to comply with applicable law. That means things like having an accurate “From” description. It also means making sure that messages are clearly identified as advertisements. And, having an unsubscribe mechanism in place (and honoring requests to unsubscribe) are also key.

Online Marketing Lessons, Lesson 3: The Lanham Act and Misleading Product Descriptions

The Background: We learn from watching the documentaries that Fyre Festival was promoted as an incredible, luxury vacation and music festival experience. Attendees could book an incredible, beachfront villa. They could book yachts. Each of these experiences came with a hefty price tag, but people paid. Then, they arrived… and the reality was far from the enticing experiences they booked online.

The Lesson: The Lanham Act may sound familiar to you. It’s the act that governs trademarks and trademark infringement in the United States. False advertising and false product descriptions also fall under the Lanham Act. The Act allows a consumer to sue for advertising that “misrepresents the nature, characteristics, [or] qualities” of goods or services. 15 U.S.C. § 1125(a). The FTC can also enforce false advertising claims on a consumer’s behalf. (In case you didn’t notice, the FTC is the common thread, here. It wields the hammer when it comes to false or misleading communications that affect consumers.) So, if you sell someone a ticket to a private yacht with a Michelin-decorated chef, you’d better deliver on just that. It’s pretty simple: be accurate in your product or service descriptions. Be clear.

In sum, while the Fyre Festival documentaries were equal parts horrifying and entertaining, there were definitely online marketing lessons to be learned.

What’s next? Click here to download your [free] Essential Legal Checklist from Spear IP.

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