Where to Put “#ad” on Instagram Posts

Free StuffLast month, Rosie and I attended BlogPaws – a conference for pet bloggers – where I taught a workshop with Chloe DiVita and Tom Collins on the Legal Dos and Don’ts of Blogging and Social Media.  We did a three-hour presentation that focused on copyright and the federal rules that apply to product reviews, campaigns, and promotions.

We reminded the audience that the Federal Trade Commission (FTC) requires people to provide their honest and accurate opinions when writing product reviews. If you have a relationship with a company – whether you got free product, you have a contract with them, or even if you have personal relationship with someone in the company, you always have to disclose these relationships – clearly and succinctly – in every post and platform you mention them. We also reviewed the Lord & Taylor fiasco. This was a good reminder for social media influencers not to assume the companies they work with will know these rules or provide proper guidance

After the workshop, I did one-on-one sessions with attendees. Per the conference organizers, each person only got 10-minutes, so it was like a legal information kissing booth – sit down, ask one question, and get out. One attendee asked, “I understand that I have to put #ad on all Instagram posts when I have a relationship with a company, but are there rules about where I have to put it?”

Hmm . . . that’s an interesting question, and one I’ve never heard before.

Rosie and I were happily the most underdressed on the BlogPaws red carpet. (Photo by Silver Paw Studio, used with permission)

Rosie and I were happily the most underdressed on the BlogPaws red carpet. (Photo by Silver Paw Studio, used with permission)

The purpose of the FTC rules is transparency. The law requires posters to inform others of potential bias due to a relationship with company so whomever reads the post can consider this in conjunction with the content of the post. This disclosure must be clear and conspicuous,  you can’t put it behind a link. The easiest way to make this disclosure is to include “#ad” on each applicable post.

I grabbed my phone and scrolled through my Instagram feed. Each post cuts off after the first three lines until you click on it to read more. Based on this, it appears the prudent place to put “#ad” on an Instagram post is to put it in the first three lines so anyone looking at their feed on their will know when you have a relationship with a company.

After the conference, I looked at Instagram’s Terms of Use. Although their terms are impressive and thorough, there are currently no provisions explicitly about when and where to use “#ad.”

The law is constantly trying to keep up with technology, including the internet. If you’re a social media influencer, keep up with changes in the FTC rules regarding disclosures on product reviews and promotions. and other rules that apply to your posts. If you have questions about internet law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Hat tip to Rosalyn of Golden Woofs and Sugar the Golden Retriever for this question.

Creeper Cosplay Video | Is That Legal

Gradisca Cosplay Photo Contest 2014 by chripell from Flickr (Creative Commons License)

Gradisca Cosplay Photo Contest 2014 by chripell from Flickr (Creative Commons License)

A contact at Phoenix Comicon sent me a link to an amateur video from this year’s event. Apparently it’s feuled quite a bit of discussion regarding the legalities of shooting video at pay-to-attend events.

My initial thoughts about this video: It’s creepy.
This guy knowingly and intentionally videorecorded women without their consent and posted the compilation online in a way that objectifies them. It’s all about their bodies. Did you notice he taped at least one woman while she was walking away from the bathroom? Eww! And what’s with that disturbing music with women crying on it? This guy is right up there with creepy yellow coat man from the 2010 No Pants Light Rail Ride.

What made this video so disturbing? Greg Benson of Mediocre Films does videos of women in cosplay at San Diego Comic-Con and I’ve never had an issue with it. I watched one of his videos from last year for comparison:

I don’t have an issue with this video for several reasons:

  • He obviously gets consent from the women to film them. There’s no hidden agenda.
  • He interacts with these women. Even when he’s enjoying the beauty around him, Greg treats these women like people, not a peep show.
  • The video has a dual purpose – one of which is showcasing these stunning costumes. (Hey Greg – if you do another video like this, would you please call it “Women of Comic Con” instead of “girls?” It’s a better embodiment of these women’s badassery.)

So is Creeper Guy’s video from Phoenix Comicon illegal?
Probably not – at least based on the footage posted. It’s not illegal to be a jerk.
If he had a ticket to the event, he wasn’t trespassing. The polite thing to do at a con is to ask permission before taking photos of attendees, but it’s not required.  He could have been a guy walking around looking like he was shooting general footage of the event, which lots of people do.

So far he’s not running ads on the video in question, so he’s not publicizing anyone’s image without permission. Phoenix Comicon is an event that’s open to the public to attend so there’s no expectation of privacy on the expo floor.

Is what this guy did vile? Yes.
Should he be banned from future Phoenix Comicon events? Perhaps, but that’s not my call to make. With a crowd of over 80,000 in attendance, it would be easy for someone to slip in.

However, instead of dealing with this situation from purely a legal perspective, I encourage the community to be aware of creepers at events like Phoenix Comicon. If you see someone leering at others or doing vulgar things like filming people’s asses as they walk, call them out and/or report them to event security. If you see someone being harassed, report that too and support that person. We have an obligation to keep an eye on each other.

There’s nothing wrong with enjoying the view, as long as you can do it appropriately. Remember, cosplay is not consent.

This is an issue impacting the entire geek/con community. If you believe you are the victim of a crime at a con, contact law enforcement for assistance. If you have questions about social media law or internet privacy that you want to discuss with me, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Checklist for Social Media Influencers

Selfie Stick by R4vi from Flickr (Creative Commons License)

Selfie Stick by R4vi from Flickr (Creative Commons License)

Some people, including a lot of average joes, have such a strong social media following that brands want to send them free products to review or to partner with them for a native advertising campaign. If you are lucky enough to get such an offer, you need to understand the rules and read the fine print closely to make sure you’re not setting yourself up to be accused of an FTC violation. Don’t count on the other side to educate you. As we saw in the Lord &Taylor situation, companies who seek to partner with social media influencers don’t always know and follow the rules themselves.

If I were presented with an offer to do a product review or be part of a native advertising campaign, these are some of the questions I would ask in regards to the offer.

Influencer-Company Relationship
What is the company asking me to do?
What is the company giving me in return?
Is there fair give-and-take between both sides? (If not, it’s not a valid contract.)
Are expectations and deadlines clear?
Who is my point person at the company if I have any questions?

FTC Compliance
Does the offer require that my review be truthful?
Does the offer require me to give an accurate review of the product? (Bonus points for companies that require reviewers to write what they like and dislike about the product.)
Does the offer require that me to disclose my relationship with the company – both in my review itself and also any promotions I do about the content on social media (i.e., use #ad or #sponsored)? (The FTC requires this so if the company doesn’t want you to do this, turn and run. They don’t know the basic rules about native advertising.)

Intellectual Property
Does the offer clearly state who owns the copyright in what I create under the agreement?
By accepting the offer, do I grant the company certain rights to use my work?

General Legal Provisions
Is there a written contract? (It’s avoids confusion when all the provisions are in a single document and has  provision that states, all the terms of this agreement are in this contract.)
Is there a severability clause so if one provision is illegal, the rest of the contract remains in place?
What are the rules for modifying the agreement?
Which state law governs the agreement?
If there’s a problem between the company and me, how will we resolve it?
Under what circumstances will the agreement be terminated?

Final Words of Wisdom
Contracts are relationship-management documents, ideally written to protect both sides. If a company offers me a contract with provisions I dislike, I request changes. (I’m the queen of changing liability waivers.)

And if there’s a word or provision you don’t apprehend, ask! Don’t sign a contract that you don’t understand, because as long as it’s legal, you’re stuck with it.

If you are a serious influencer and get offers to do product reviews or participate in campaigns, treat your social media activities like a business. Consider hiring a lawyer to create a contract template for these situations when the other side doesn’t have a written contract. At the least, use this checklist to do a preliminary review of the offers you receive.

If you want more information about the legal rules regarding your blog and social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me about social media law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that’s shared only with my mailing list, by subscribing to the firm’s newsletter.

The Paisley Dress and the FTC: A Cautionary Tale

Lord & Taylor by Mike Mozart from Flickr (Creative Commons License)

Lord & Taylor by Mike Mozart from Flickr (Creative Commons License)

If you want a story of what not to do when it comes to working with influencers and the Federal Trade Commission (FTC), look to Lord & Taylor.

To promote their new clothing line collection, Design Lab, Lord & Taylor sought out influencers on Instagram. They sent a piece from the collection – a paisley dress – to 50 influencers, and paid each of them $1,000-4,000 to post a picture of themselves wearing the dress on a specific day (“product bomb”). The agreement with each influencer was that they would use certain campaign designations and hashtags and that Lord & Taylor would review and approve these posts prior to the product bomb day.

The Infamous Paisley Dress

The Infamous Paisley Dress

This is where this story hurts my head:

  1. Lord & Taylor didn’t require the influencers to disclose that these posts were part of a campaign.
  2. When Lord & Taylor reviewed each post, they didn’t insist that the influencers add this information.
  3. None of the 50 influencers who were paid to post a picture of themselves wearing the paisley dress included the disclaimer or asked about it.

How can marketing professionals claim they’re competent at creating social media campaigns and not know about the basic FTC rules about native advertising?

How can an influencer who wants to use their social media platforms as a business and not know the basic rules of the game? The rules are not hard to follow:

  • Only give your truthful and accurate review of products, and
  • Always disclose when you have a relationship with a company.

If a company doesn’t want you to do this, send them a link to the FTC rules and run away as fast as you can. If they don’t understand these basic rules, they don’t know what they’re doing. I’d be worried about what else they’re doing wrong.

Companies should insist on these disclosures. When I did product reviews, my contract required me to include what I liked and didn’t like about the product and to always disclose that I got to use each product for free.

Luckily for Lord & Taylor, they appear to have gotten off with a warning. The FTC could have fined them or their influencers up to $11,000 per violation ($11K x 50 influencer posts = $550K). The next company that makes this mistake may not be so lucky.

I’m looking forward to speaking on this topic at BlogPaws to help bloggers avoid getting in hot water. If you want to talk with me about the FTC rules and social media law, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.

 

Planning for the Digital Afterlife

Candlelight Vigil 6 by B. W. Townsend from Flickr (Creative Commons License)

Candlelight Vigil 6 by B. W. Townsend from Flickr (Creative Commons License)

Your accounts on websites and social media platforms, website domains, and all the content you post are your property, and therefore part of your estate.  When you pass away, your estate plan determines who will inherit your possession, including your property online. When you write your will, make sure it includes information about who will own your online content when you die.

Copyright Ownership
Under the U.S. Copyright Act, you are the copyright owner in any original works you create the moment they are “fixed” in any tangible medium (including digital files). This includes the photos and videos that you take post on social media and the content you create and post on your websites. For any individual, the copyright in each work does not expire until 70 years after you die. It’s important to designate who will be the copyright owner for your content.

Maintain Accounts
You may have accounts that require payment to maintain them – such as your web domains. Your accounts could be disabled or delete if they are not maintained, meaning the content could be lost if someone doesn’t continue to pay your domain, hosting, and account fees. If you want a website to live on after you pass away, include instructions and money for doing so.

For your other social media accounts, check with each site’s terms of service about what happens to an account when a user passes away. There may be processes in place to transition your account into a memorial page and/or transfer control to your loved ones.

Settling your Online Affairs
When you create an estate plan, you designate an executor or personal representative for your estate who is responsible for settling your affairs. Consider designating a representative to oversee you online affairs. Provide a list of your online property and instructions regarding what should happen to it. You may also want to give this person instructions regarding the files on your computer, in your phone, or in the cloud.

You may select one person as your regular personal representative and a tech savvy friend to address your online affairs. Your online executor may need access to your passwords to your computer, phone, and for each account. (This is when using a password storage system like LastPass is handy.) Your online executor is also the best person to clear your browser history, delete images from your machine, and possibly remove items from your home that you don’t want your family to see.

Dying Without a Will
If you die without an estate plan (aka die intestate), you’ll have no say over who inherits what from your estate. The court will appoint a personal representative and the laws of your state will determine who inherits your estate. In Arizona, if you die without a will, your spouse inherits your estate. If you don’t have a spouse, your children inherit your estate. If you don’t have a spouse or children, your parents inherit if they are living, otherwise your property goes to your then-living siblings. If you are an entrepreneur, you should also be aware of what happens to your LLC when you die.

If you want to talk with me about who owns your online content now and in the afterlife, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.

Stolen Images: How to Respond if Someone Uses your Photo Without Permission

Caught in the Act by *sax from Flickr (Creative Commons License)

Caught in the Act by *sax from Flickr (Creative Commons License)

What should you do if you discover that someone is using a photo you took without your permission? As the person who took the photo, you are likely the copyright owner, which gives you the right to control where and how your work is copied, distributed, displayed, and used in other works. You may have grounds to sue the person for copyright infringement, but that’s often not a practical course of action, especially if your damages are minimal or the alleged infringer doesn’t have means to pay you the damages.

In many cases, the owner simply wants the person to stop using their image, so what do you do? If your goal is removal of the photo and cessation of further uses, this is one way to proceed.

1. Dial Direct: Contact the suspected infringer directly, inform him/her of your concerns, and request that they remove the image. Many people still believe that they can use any image they find on the internet as long as they give an attribution and a link to the original.

Look for contact information on their website if that’s where the alleged infringement is occurring. If that information is not available, it might be listed on WhoIs from when the person registered the domain.

2. Send a DMCA Takedown Notice: If you can’t contact the person or they don’t respond to your request to remove your image, you can send a DMCA takedown notice to the company that hosts their content. If the image is on a person’s website, be aware that the company that registered the domain is not necessarily the same company that hosts the site. Before I send a DMCA takedown notice, I usually contact the hosting company and verify that they host the site in question. I also ask if there’s a specific email address to use to send DMCA notices or if they have a form on their site for submitting them.

The downside of sending a DMCA takedown notice is that it may result in the image being removed, but only for a short time. The infringer can have the content restored to their site merely by sending a counter takedown notice.

3. Consider the Court or the Court of Public Opinion: If sending a DMCA takedown notice is not effective, you may have to sue the person to get the image removed from their site or account. You may also consider turning to the court of public opinion. If you pursue the latter option, be careful about what you say. You don’t want this person to have grounds to sue you for defamation, false light, or a similar claim.

If you’re interested in seeing an epic copyright battle that was fought in the courts and the public eye, I recommend The Oatmeal vs. FunnyJunk. Be sure to read this update, this one, and this one too.

Of course if you’re in this type of situation, it’s best to consult a copyright lawyer to determine the best course of action based on your specific circumstances. If you want to talk with me about copyright issues, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content, entrepreneurial tips, and rants that are available only to people on my mailing list, by subscribing here.

Arizona’s New Revenge Porn Law

Bound by Connor Tarter from Flickr (Creative Commons License)

Bound by Connor Tarter from Flickr (Creative Commons License)

Arizona has rejoined the ranks of U.S. states that have criminal law against revenge porn. This bill was announced with much fanfare in January, but there was barely a whisper when Governor Ducey signed it into law earlier this month. And because this law was passed on an “emergency” basis, it became effective the moment it was signed.

The New Law
A.R.S. § 13-1425 makes it illegal to intentionally disclose the image of an identifiable person in a state of nudity or engaged in sexual activity, when the person has an expectation of privacy, with the intent to harm, harass, intimidate, threaten, or coerce the depicted person. Some important things to note, “image” includes photos, videos, and other digital recordings; and to “disclose” an image means to display, distribute, publish, advertise, or offer.

Offer. Just offering to share revenge porn could be a crime.
Let that sink in for a minute.

The Penalties
If you are convicted of revenge porn using electronic means (email, text message, or social media) under this new law, it’s a Class 4 felony, which is punishable by 1.5 years in prison and a fine up to $150,000.

If you’re convicted of threatening to post/share revenge without actually disclosing the image, that’s a Class 1 misdemeanor, punishable by 6 months in prison and a fine up to $2,500.

Additionally, it will be up to the judge’s discretion to declare whether your crime makes you a registered sex offender.

These are significant punishments for actions taken when you’re merely pissed off at an ex. It’s not worth the risk when the consequences are this severe.

What if I Sext Someone a Naked Picture?
One question I’m frequently asked is if someone texts or emails you a naked selfie, whether you can post that image online. If someone sends you an explicit image, they have not relinquished their expectation of privacy. If you post that image online or share it with others, it could be criminal revenge porn.

If you believe you are the victim of revenge porn or threatened revenge porn, contact law enforcement for assistance. I’m curious to see the outcomes of the first cases tried in Arizona under this new law. If you have questions about social media law or internet privacy that you want to discuss with me, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

Five Ways to be Legal Killed for your Blog

Batgirl on Jersey Ave. (behind bars) by margonaut from Flickr (Creative Commons License)

Batgirl on Jersey Ave. (behind bars) by margonaut from Flickr (Creative Commons License)

Yes, you can be legally killed because of something you post on your blog – just not in the United States. As a social media attorney, I deal with a lot of situations involving people behaving badly online, but none of them amount to circumstance where a post can result in crime punishable by death.

There are crimes you can commit via your blog that are punishable by death in certain countries:

Witchcraft: Saudi Arabia

Membership in the Muslim Brotherhood: Syria

Homosexuality: Afghanistan, Iran, Yemen

Atheism: Afghanistan, Iran, Mauritania, Pakistan, Saudi Arabia, Sudan, The Maldives

Opposing the Government/Treason: Bahrain, Belarus, China, Egypt, Ethiopia, Gambia, India, Libya, North Korea, Singapore, South Sudan, Sudan, Syria, United Arab Emirates

This list makes me nervous for travel bloggers, including my friends The Opportunistic Travelers who trek all over the world. If you hit the authority’s radar in the wrong country, it could lead to some serious consequences – such as being caned in Singapore for graffiti. Before you pack your bags for your next adventure, make sure you research the laws that impact your actions in real life and online.

If you want more information about the legal rules regarding your blog and social media, please check out The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. If you want to chat with me, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that’s shared only with my mailing list, by subscribing to the firm’s newsletter.

Using Others’ Content – Legal Dos & Don’ts

Cut Copy Paste by Arthit Suriyawongkul from Flickr (Creative Commons License)

Cut Copy Paste by Arthit Suriyawongkul from Flickr (Creative Commons License)

I’ve received a lot of questions lately about how and when it is permissible to use other’s content without committing copyright infringement. This aspect of the copyright law is called fair use, and it’s a murky gray area. Each situation needs to be evaluated based on its merits as there few black-and-white rules regarding the legal use of others’ content.

Sharing a Post
If you like a post, you may want to share it with others. The legal way to do this is share a link to the original post with your audience. Sharing a link is the digital equivalent of pointing at something. It doesn’t create a copy of it. You will likely be accused of copyright infringement if you copy/paste the content from the original site to your website. Even if you have good intentions, you’re still interfering with the copyright holder’s right to control where their work is copied and distributed.

If you want to share a copy of a post, ask for permission. I get 2-3 requests a year from people who want to print and share copies of a post I wrote for training purposes or as part of a seminar. I’ve always allowed this as long as they include an attribution so the audience knows where it came from.

Commenting on a Post
If you want to quote someone in a post and add your own commentary to their thoughts, that is generally permissible. This is one of the things fair use is meant to protect. It’s best to quote the original post, provide an attribution and a link to the site, and then add your thoughts about it. By adding commentary, you’re more likely to be contributing to the conversation rather than committing copyright infringement.

One of the questions I was recently asked was whether they could write about the same topic as someone else. There’s no copyright protection for facts or ideas, so as long as you’re not copying someone’s working and claiming it as your own, you can write about the ideas as another writer, even without as attribution – unless you quote them.

Using an Image
This was an interesting question – someone asked when they write a post that comments on another person’s work, can they use the image from the original article. This raises a “red flag” for me because depending on the circumstances, it could be permissible or copyright infringement. If the article is about the image itself, then using the image is likely protected by fair use.

Otherwise using the photo from another’s post may be copyright infringement, especially if readers are seeking the original post and accepting yours as a substitute. I could see readers being confused because the image on the two posts are identical. If the image on the original post is not as essential aspect of the story, I recommend using a different image. I usually get my images from Creative Commons that come with the license to modify and commercialize the original.

Copyright and fair use are complicated issues that permeate the blogosphere. Before using another’s content, consider whether what you’re doing is likely to be legal and whether it might be best to request permission before using another’s content. If you have any question regarding using others’ content and fair use, please contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. If you want access to my exclusive content that’s shared only with my mailing list, please subscribe to the firm’s newsletter.

Don’t Do Stupid Sh*t – V-Day Edition

Christ-Facepalm by Doc from Flickr (Creative Commons License)

Christ-Facepalm by Doc from Flickr (Creative Commons License)

Someone recently asked what I would do if someone gave me an ad on the Super Bowl. Now, I don’t follow sportsball so I may not fully understand that demographic, but I would use my air time to share a simple PSA: “Don’t do stupid shit.”

In honor of this Hallmark holiday, I feel obligated to post an unsolicited reminder about being responsible regarding your intimate photos and videos.

Sending Explicit Content
If you have any doubt about whether your crush or significant other can be trusted with an intimate image of you, Don’t Send It! Once they have a copy of your naked selfie, you have no control over who they might show it to or where they might post it online. Sending a sexy image to someone is not a decision you should make lightly. What you might think is a brilliant idea today may become tomorrow’s regret.

Yes, if you find yourself in this situation, you could go after the person for violating your right to privacy or file a police report for revenge porn, but that doesn’t change the fact that this person posted your intimate photo or video online without your consent and there is no way to tell how many people will see it before you can get it removed.

Owning Explicit Content
If you are lucky enough to have a significant other who will send or make intimate content with you, respect that! Do the happy dance and consider yourself lucky. No matter what happens in your relationship, never ever ever post this material online or show it to a third person without your partner’s consent. And don’t even think about putting a hidden camera in your bedroom.

(If you even think about doing any of these things, it is undisputable proof that you are completely unfuckable, and no one should sleep with you again. Ever.)

In the best case scenario, if you share someone’s explicit photo or your sex tape, you will inform the world that you are a complete asshat. In the worst case scenario, you could be sued for invasion of privacy, lose your job, destroy your reputation, and be arrested for revenge porn (which if the new revenge porn law passes in Arizona, will be a Class 4 felony).

When in doubt, keep your camera out of your sex life. Better yet, don’t even bring it into the bedroom, or wherever you’re having sexy time. I get calls and emails almost every week from people who are concerned about revenge porn and their nude photos and sex tapes being posted online or shared with others without their consent. If you have a question about revenge porn or internet law, please contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn.

I’m also going to revive my newsletter later this year. If you want access to my exclusive content, please subscribe.