What makes a post sponsored? You know, the kind of post where you have to include disclosures. Today, you’re really going to understand when those disclosures are necessary for a sponsored post, or when there’s a connection that might require disclosure.
What makes a post sponsored?
Obviously, if someone is sponsoring the post the way we all think of sponsors (where they pay you to post about something), that’s a sponsor. But what we’re really looking for is a material connection.
What is a material connection?
A material connection is any relationship between you and a brand, where there’s more than just “I like this product.”
You are receiving payment
You’re receiving a free gift
Or something that goes beyond just, “I like this thing.”
Do you have to be paid for a post to be considered sponsored?
Nope! Like I said earlier, you could receive a free gift. It could also be a family relationship, which would also make a post worthy of disclosure. While that’s not technically a sponsored post, you probably have a relationship there that goes beyond just liking a product. If you own stock in a company, and you’re posting about that company, that also counts.
If you have a material connection, that also means that you need to have a disclosure that is clear and conspicuous. It is not ambiguous. It is not the end of a post or the bottom of a blog post. It is not hard to find. It’s obvious! It’s not a hashtag that’s not couched in between a huge paragraph of hashtags (because nobody reads those anyway.) It’s not living somewhere else, except for on that post, even if it’s a visual-only platform like a TikTok or Reel.
Head to spear-ip.com/quiz to find that legal blind spot that secretly killing your business. Not only will you find out what that legal blind spot is, you’ll receive personalized guidance on how to fix it!
Can you use music in TikToks and Reels if you use TikTok/Instagram for your business? The fact that I’m playing my son’s xylophone in the video above (instead of using music) might give you the answer!
But in truth, it’s a little bit more complicated than yes or no.
(At least for tik tok.)
By the way, that music that you hear in the intro to my YouTube videos, I purchased a license for that music.
And that’s not what I’m talking about today.
I am talking about the music that you see in a lot of Reels and a lot of TikToks either based on trends, or just because you feel like putting music in the background of a video.
Instagram (Facebook) and Music in Reels
Here’s what the Facebook company has to say about using music and videos. I’ve got those music guidelines right here.
“Use of music for commercial or non-personal purposes in particular is prohibited unless you have obtained appropriate licenses.”
…”Commercial or non-personal.” I would say that that means if you’re using Instagram or Facebook in connection with your business, that would be commercial or non-personal. And you may not not NOT use music, according to this policy. Which means you’re back to xylophone or whatever music you make up on your own, or music that is properly licensed.
Using Musing in TikToks (Legally)
TikTok is a little bit more complicated.
A long time ago TikTok was actually a lip synching app and it evolved over time. Because of its deep history as a music app, it’s got some arrangements with some music publishers. So there’s some music on TikTok that lives on there legally.
But here’s the thing.
The thing is that TikTok allows you to choose between a regular account, a “business” account, a “creator” account. Well, if you are a business on TikTok, you do not have access to a big bulk of music that’s available on TikTok. Instead, you’ve got access to a more generic sounds and music library (the “Commercial Music Library“), which allows businesses to use music. It’s royalty free, it’s all cleared. But it’s not as fun as maybe some of the trending dances. (Sorry.)
TikTok even says:
The Commercial Music Library is for any account that uses TikTok for marketing, advertising, sponsorships, endorsements or publicity, including official brand accounts, their promotional partners, NGOs and government organisations.
…”Their promotional partners.” Hmm. That might be you, content creator.
Here’s what you absolutely cannot do!
You absolutely cannot go on your phone or your computer and play, you know, the latest top 40 hits from your computer, do a little dance, create a little video on your TikTok account and then upload that to try and get around that music requirement.
No, no, no, no, no, no, no.
And here’s where it gets kind of confusing.
A lot of content creators are businesses, but they might have a creator profile and not a business profile. So if you have a creator account and not a business account, you’ll still see some of those fun songs. Your account won’t be limited to the Commercial Music Library. But you’re using TikTok in connection with business and promotion and marketing, because your business is content creation, and maybe sponsorships, and maybe teaching people about your expertise, which is your whole bread and butter.
A content creator is a business. So can a content creator use music on TikTok or NOT?
What is absolutely clear is that business accounts are not allowed to use that regular library of music on TikTok because of publishers becoming weary of say, brands using their music on TikTok. It’s that brand-music association that makes them twitchy. For that reason, I would stick to the Commercial Music Library or, at the very least, go the extra mile to make sure that you’re allowed the music you’re using on TikTok. Especially if your post has something to do with promoting a brand.
In this quick read, you’re going to learn when to post a disclosure along with your social media post. (Hint: disclosures aren’t just for traditional sponsored posts.) You’ll also learn what makes for a good disclosure.
When do I need to follow disclosure rules on social media?
So, the very quick, very short answer to “When do I need to post a disclosure,” is whenever there is a “material connection” between you and the brand.
The question of course, is, what does “material connection” mean? A material connection is any connection between you and the brand that goes beyond just “I found this and I like it” or “I came across this brand and wanted to share it with you.”
The rules aren’t just for traditional “sponsored” posts.
Disclosure rules on social media aren’t just for sponsored posts. A “material connection” includes:
Receiving free products (or even discounted products),
Receiving a special invitation to an event
An employment relationship with a brand,
A family or friendship relationship with a brand, and
Some kind of stock ownership in a brand.
Basically, disclosure rules on social media come into play with any relationship that goes beyond what any of us consumers would have with a brand.
What’s in a good disclosure?
Well, a good disclosure is clear, and it is conspicuous. It is not ambiguous. A statement like “Thank you, [brand]!” is not really clear, and it’s a little ambiguous. It does not show that there’s some kind of material connection between the poster and the brand. Same thing with #partner. That kind of, might suggest that there’s something going on. But especially when you’re relying on hashtags, you want to make sure that those hashtags are very clear.
Does the user have to tap the “More” to see your disclosure? A lot of times people don’t tap more to see more. Even on visual media like instagram stories and Snapchat, you want to make sure that those disclosures are conspicuous.
So I hope you walk away today with a good explanation of what a material connection is, what a good disclosure has, and when to follow those disclosure rules on social media.
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?
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!