Thursday, March 1, 2012

Blissdom 2012 Recap: Legal Confidence

I am in the process of recapping my learnings from the 2012 Blissdom conference. It's good for me because it helps me process what I heard - and hopefully absorb some of it! - and also gives me a chance to share some of my learnings. I have several photography sessions coming, but today, we're all about the legal aspects of blogging.

Read yesterday's post on editing your writing to improve it.

Sara Hawkins from Saving For Someday, an experienced lawyer led a session on Saturday focused on a range from blogging topics from copyright to giveaway issues to protecting your photographs and more. I've sat through legal sessions before, and this one had a lot of information I hadn't heard before, all of which I found fascinating.

She started with:

I have a very different perspective on law. I think law should be fun. I love it so much, and I really try to make it understandable. I like to talk in English and write in English. This presentation is not legal advice. I am not your lawyer, but I am your friend.

We are all different people; we are all different types of bloggers. Don't compare yourself to somebody else and where they are in their process. We all have different levels of education and experience in blogging. Those who produce content that is very relevant to tech have content stolen. There are reviewers and frugal bloggers who want questions answered. Here's the thing: Ground rule 1 - if you don't know what she's saying, don't freak out. If you walk out the doors and think that you can't be a blogger because you're not doing something she said, talk to her. Don't think you can't be an awesome blogger and still be compliant with the rules and regulations presented. Don't think this is not possible anymore.

This is to empower you to be a better blogger and a more efficient blogger and to protect what you have created.

Number 1 question: Do I need to form a company?
Yes, if you plan to or now are or anticipate making money on your blog, then yes, create that level of limited liability and shield your assets. We don't want people to take our homes or cars or money. Some people don't write about things that create liability. If you're a new blogger, you may not have the money to do it and may not be ready.

People do sue bloggers. She has represented several companies who have sued bloggers, primarily professional tech type bloggers. If you're doing something that a company is unhappy with and you aren't working with them to solve this, then they may sue you. Sometimes bloggers sue other bloggers. to her that is very unfortunate, and the most important thing is to be professional with one another. If you want to protect what you're doing, then form a company. It's not for everyone. You may need to talk to your accountant or a lawyer and spend the money to figure it out.

An LLC does not work for everybody. Please do not go online and go to a company that has legal in their name and pay $55 to form an LLC. If you have a partner, it may be great to have an LLC or you may want to be a partnership, too. You can have a 1 person LLC. You cannot have a single person corporation in some states.

In some states - California, for example - it may be cost prohibitive where there is a minimum $800 fee. Affiliate income is important to you, then don't incorporate in a state that Amazon doesn't work with. If you are looking to get a great deal of income through Amazon and you can't get income because Amazon doesn't work with those states, then form a company in a state that does work with Amazon. it may be worth it to do so. There is so much misinformation about law out there, so don't just google it. Talk to someone about it to figure out what you want.

On Saving For Someday, go to upper right hand navigation bar that says blog law and go into that where there are a bunch of different articles to drive you through different topics, including what type of company to form. If you want to minimize the amount of money you spend with a lawyer, this is a good place to do some research so you don't have to ask a lawyer these questions.

Who Owns the Words?
If you write for a third party site, do you have an agreement with them on who owns the content, where you can repost it, etc. So many people are doing these, but nobody really knows who owns the content and what can be done with it. When your writing appears elsewhere, then there are questions over whether you should be paid for that. You may be willing to write for a certain amount of money if it is able to be posted elsewhere or another amount if it's only posted on one site and you can repost it later. If someone wants you to write a book or post elsewhere one day, then you could be stuck and not able to use your own words and you lose out on an opportunity because you don't realize what you agreed to.

If you curate or have guest posters, she suggests you lay out an agreement over who owns the content and where it can be reproduced. This isn't just an ownership or money issue, but it's also an SEO issue. If they are providing images that are being provided on your site, you need to know where their image was taken from and that it is usable on your site. If they are a photographer and providing it for you, it's a little different. If they found it on the internet, then you need to know where. If there's a problem and someone comes to you about it, you need to know.

A couple years ago the FTC realized - nothing to do with bloggers - people were putting content out there and stacking the deck. They're writing about things they're being paid to write about and consumers were unhappy because they didn't know if the content was biased. If people are being paid or compensated as a reviewer, they may not be writing the truth. We talk about authenticity, but there are sites where no review is ever negative or even neutral. If you truly don't like something and are afraid to say you don't like it, your readers will appreciate it - just like you do when you say that this is great for someone else. “I have something awesome, but it doesn't work for my lifestyle. If you have a lifestyle like *this* then it may work.” If I don't know that you're being paid, that’s where the issue comes in.

Material relationship - there is no legal consensus on what this means. It means significant. If you are being paid in any way, it is a material relationship. They are not coming after bloggers. What they're doing is looking at big picture things. If you're part of a group and went to something and received swag or gift cards or transportation, then you need to disclose that you received lunch or a gift card, etc. On the bottom, she has a very long disclaimer and specifically codes this to a section that leads to the FTC rules that talk about this subject. She puts it at the bottom as a disclosure, and the FTC wants you to be natural about it.

There's nothing wrong with saying, "I was invited to the Martha Stewart offices, so cool I got to meet her, we got lunch, I got glitter and glue and we made crafts." It can be in your post and that is disclosure. It doesn't have to be at the bottom. Your readers kind of block that out, but you need to authentic with them. If you're trying out a new piece of tech because you're a tech reviewer, of course you're going to get the tech, but you need to say that you were provided with it. Embrace the fact that it's not fancy language and not a huge disclaimer but something in your content that flows naturally - just like "I got these new shoes - on sale" or "I love this new printer; HP sent it to me."

Whatever your style is, incorporate it. Set the standard, set the bar high. Don't not do it just because other people don't do it. Most of us came from professional backgrounds though we are now mom bloggers. We can each elevate this profession by having this ethical and honest relationship with our readers.

Facebook, Twitter, YouTube & Pinterest
Twitter really has no rules - 140 characters. When you have long twitter handle, you are down to 110 after your handle and 10 characters for RT. You've seen the hashtags #spon and #ad. The FTC doesn't have a standard, nor does Twitter. As you have things retweeted, people cut and paste and you can lose that “disclosure.” The FTC isn't trolling and patrolling. Always lead them to your site instead. "Check out my new printer - link" instead of "I love my new printer #spon." It's a little longer to do it, but it's a little better to have it go directly to your site where it has that disclaimer.

She is not a fan of stock disclosure policies. If your disclosure policy is under legal or another tab, go check out what you say. Especially if you went somewhere to generate a disclosure policy, she urges you to read what you have on there. If you went to a site and had it generated, it may say things that you are unwittingly violating. It may say that you don't collect cookies, but you may and not know it. Consumers are getting frustrated and starting to go to FTC. If you sent me an email, I will get your email and IP address. I don't sell it. If you do give it to brands, don't tell them you aren't going to sell it. Say you may sell it. If you do not have a disclosure policy, create one. Think about what you would disclose. if you don't understand what the disclosure policy says, rewrite it. Tell people what you are going to do with your information. She strongly urges you not to sell your contacts - it's not worth it.

Do you realize that by vlogging and posting it to YouTube, anybody who is a member of YouTube can take your content and repost it if you leave the enabled setting there. If you write about food, you may have found that there are trolls out there. They will take your video and slash it, make fun of you and your brand, and you can't do anything about it other than disable the enable button, which disables it on your site, too. If you blog about anything controversial in any manner, you may want to disable that. If not, you have no recourse to someone who takes your URL and uses it on their site, even if they monetize it. If you do a lot of reviews and get a lot of hits, people may then use it to sell through their affiliate brand.

Facebook is a little more protective of things. But what you put on Facebook is pretty much available to anyone. There is a whole issue with images and copyright online with violation issues.

Pinterest. She thinks Pinterest is an awesome content. She has been on it for a long time. She doesn't pin anything because she has issues with the content that is provided. If you are a photographer, she highly recommends that you watermark your images. If you're going to load your photo on Pinterest, add a white box that states that this photo is copyrighted and not to be posted anywhere else, my URL, if you see it anywhere else, contact me. It seems convoluted to do this, but if you have a nice high res image, people are going to Pinterest for their stock photos now. She didn't used to watermark photos because it looks ugly, but because of Pinterest, you have to. Beautiful photos are being taken constantly.

Copyright and Trademark
Copyright is automatic, you don't have to put the circle c and year on the website. Copyright protects original work of authorship that is published. This can mean hitting publish or sending an email to a third party content provider. It doesn't have to be on a big website or magazine. There are probably a hundred exceptions - recipes, basic instructions, lists, etc. If you do basic things, 1-2-3, anybody can do that. If you have to explain to someone in words how to wash their hands, it's a thirty minute discussion. The more you are fluid in your language, the more you will have copyright protection.

As soon as you take an image, it is protected by copyright. You can take a photo of a copyrighted photo. Your photo will be copyrighted, but you cannot distribute it. You cannot take a photo of a piece of art in a museum, you cannot then sell it.

She is a cut and paster. She likes to quote other people on her site. If you disable right click, she won't promote you. There are other ways to protect your photo.

Trademark. You can trademark your blog name, but that doesn't mean that you own all the .com, .net, etc. Cyber squatting means buying alternative spellings or useful sites near another site and directing traffic to you. She doesn't recommend it. If you are going to write a book, a physical book on the topic, you can do $285 protection for the content plus legal fees. If you want to make t-shirts or make journals, that's a different category of trademark. If you don't know what you're going to trademark it for in the future, it can get really expensive fast. If it's an ebook or physical copy book, you may want to think about it. You have to find someone who knows what they are doing to protect exactly what you want to protect, so you don't have to spend more money than necessary.

If your name is similar to something else, you may want to look into what you're going to do longer term with your blog and the cost of it. If you aren't making any money now, it's hard to tell you to spend $750 on a lawyer, $300 on each class of trademark, etc. It's hard to do this flat.

Facebook Promotions
Facebook is very good at defining promotions on their social platform. She has written about it, and people may disagree with her over how you can run these. If you have an opportunity, read what she has said over what you can and cannot do on promotions involving FB. She answers all questions in the FB, so check those. If you are running a contest on FB, you must use a third party app. You cannot use FB mechanisms for your promotion - liking a picture or liking a comment. It is not illegal, they cannot take you to jail and they will not sue you, but they will take your site down. That's probably worse because you lose thousands of fans or likes. There are rules for FB interaction with promotions laws.

Sweepstakes versus Giveaways versus Lotteries
There are sweepstakes, giveaways, and lotteries. Lotteries are regulated by state law - so much legal mumbo jumbo, so skip this entirely. Contests require skill, which is required in Canada to have a giveaway. By having a skill, it takes away the luck part of it. In the US, have to have a prize, a randomness, and rules. You have to comply with rules for sweepstakes. She breaks down rules on her site, won't go into all it requires.

There are professional people who enter giveaways all the time. Bloggers are getting awesome things to give away, and the better the prize, it more likely it is that they will enter and will beat you down at the end. What are the rules, the list of winners, how they were chosen, etc. Apprise yourself of the rules when you do giveaways. This is about empowering you and elevating you to do a better service for our profession. As someone who has done a giveaway where the brand has not sent out what they need to send out, if you don't have rules that set out who sponsors the giveaway, it's really hard to say that they are responsible and you won't get a prize. Sometimes the brands or PR people will not realize that there is a commitment to a prize. The more expensive it is, the harder for you to come up with a replacement.

If you are giving up something worth $600 or more, talk to a lawyer over what your liabilities are. It's the retail value of the product or service. Lately seeing bloggers banding together to mass prizes where aggregate prize is over $600 even if no single item is, there are disclosure and liability issues in NY and FL. You have to buy a bond if you are giving away over $5000 - not just you but other bloggers together. If you are giving away with others, lay out the groundwork of who is responsible for doing what. No one will care that it's another blogger, they're going to come after you.

Taxes are not a four letter word. She talked to a woman recently - thattaxgirl - and is one of the foremost tax authorities when dealing with bloggers. This is not something people want to hear, but what we have to claim as our income is a lot more than we think. We have to claim product we receive as income even when we receive no cash. Income and compensation are different things. You may get something as income and think of it as money. Compensation is "stuff" so all those brand and PR people can't pay you in money but can send you a truckload of Twinkies. You agree to do it, but it has a high value, and you have agreed to engage with them and have an agreement with them and now you can potentially be liable for a financial obligation on something that is not money to you.

You have to think about these things when you are talking to brands and PR people - what is the potential impact. If they are sending you on a trip, you are entering an agreement with them. They have an expectation from you, not that you're simply getting something for free. They expect things in return, and now many are actually asking for your SSN so they can then send you a 1099 at the end of the year that you will be expected to pay taxes on because they reported it to the IRS. It is not unreasonable to ask them upfront for some cash or what the value of the trip is so you can set aside cash for it.

Gifts and swag. Brands do not gift you things. Here, we get stuff. There is an expectation that we are going to write, tweet, blog, FB, Pinterest, etc . We are unlike other conferences - at legal conferences, you get nothing cool. The type of swag other conferences get is nothing. The entertainment industry has been targeted for this, and we are no longer under the radar. There are some conferences where you get some really cool things, and the price is on the box. You can get a sense of how much your swag bag is worth. Is the IRS going to come after you and audit you? She doesn't know. You have to decide how much you're going to push the envelope.

There are other bloggers who want to complain about you, so you have to decide what your level of comfort it. You hit send to the IRS, and if they come after you, you have to be able to justify what you put down on your taxes. Things you have been sent for review: if you enter into a relationship, this is going to be compensation. It may be offset by some expenses, but you have to be able to justify it and be comfortable with it. You are not a charity. You cannot donate things to your friends and write it off. You cannot donate it to son, daughter, friend, etc. Donations are for IRS recognized charities only. If you are going to donate something, highly recommend that it is a recognized 501(c)3 - they are recognized tax deductible organizations. There are charities that are not tax deductible charitable organizations. There are many nonprofits and other organizations that do not have the money to do this, so you won't get the writeoff.

If you donate something and did not declare it as income, you cannot write it off. If you get something new and donate it new, you put the same value. If you used something, the value is reduced - e.g., a vacuum you tried and used. If you don't take swag from a conference, you're fine because you didn't further that relationship.

Other Tidbits
Some troll sites will sue if you say anything about them. The problem is that anyone can sue anyone, and it isn't expensive as it used to be. The threshold has been raised for what can go into the small courts. It isn't very prevalent in our community, but if you are going to write things that may hurt other people's feelings, you have to be prepared. You can also start to see cease and desist letters. If you aren't sure what it means, they are very scary, but they aren't things she advocates. Spend the money and cover your paper trail if you're thinking of suing or cease and desist.

You have to tell your readers that you have a relationship with the brand you're talking about. There aren't specific requirements, but you have to put it out there. They are giving my readers X. Hope that it is not over $600. If it is, negotiate how to handle this so that they ensure the legal side is covered. If you're working with a larger brand, they have a legal team and they can provide you with their expertise. Ask them for rules because they are sponsoring - you want them on the hook for this and responsible.

You must include no purchase necessary - if someone has to purchase Tupperware, etc, please do not do this ever again. If you donate to my cause, that enters you into giveaway - please do not do this. It's against the law and doesn't do anything for our profession. It moves you into a lottery component, and they are monitored by states and state lottery commissions have no sense of humor at all when it comes to that. Official rules do not have to be complicated, but there are things that have to be included. If you do a lot, talk to a lawyer to craft a template for what you can do. Official rules need to be for every giveaway. They have to be posted on your site. She puts hers on a static page that isn't visible on her site but is clickable on her site. It takes to the rules for that particular giveaway.

A lot of people will do the “if you sign up for my list, I'll give you a free ebook,” and that's fine. If you're offering medical or financial advice, etc., get advice from a lawyer on how to do this because there are certain categories that are regulated. To sell the book, you have to be prepared to figure out how to make it so people can't just copy it. A lot of them are .pdfs so they can share with everyone. If you're using images in your book, make sure they are safe for commercial use. Include the copyright information - it's not required, but it will stop the people who don't know that it isn't required. If your book is starting to become successful, go through the US copyright office because if there is an issue, you can take them to federal court. If you don't, then the damages you can collect is limited and not worth suing over. There aren't a lot of lawyers who do copyright, but it's worth the few dollars to do that if you get to that point.

Bloggers are more and more getting together to give away things. She highly suggests you talk to someone about getting the official rules to all the bloggers have the same rules and everyone has the same things. Protect yourself, not just from the outside world, but if you work in a group, someone may end up being unhappy.


See, I told you there was lots of information. Me, I had no idea that giveaways over a certain value required bonds and such. I'm very glad I don't do those! What tidbit what your biggest surprise?


Heather March 2, 2012 at 11:45 AM  

All of this is a huge surprise to me because I don't do anything that requires tax keeping, giveaways, etc. Makes me kind of glad because my head is spinning from reading this!

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