Influencer “Fails” – Avoid These Three Legal Mistakes in Affiliate Marketing
Influencer “Fails” – Avoid These Three Legal Mistakes in Affiliate Marketing

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

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

Mistake #1 – Creating a valuable brand, but not protecting it
Some days it seems like all influencers promote the same products. Come July, you’ll notice every fashion blogger modeling Nordstrom outfits prior to the department store’s anniversary sale. “Mommy” bloggers will flood Instagram with Walmart back-to-school sales each August. What differentiates these influencers? They’re all selling the same products - in a word,  BRANDING.  Whether a wholesome religious blogger, healthy exercise queen, Instagram party girl, these are all brands that create aspirations to help influencers sell products to their followers.

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

Mistake #2 – Doing business without a contract
The relationships between influencers and their business associates are often informal, with agreements whittled down to quick exchanges via email and Instagram DMs. This arrangement, while uncomplicated, lays the groundwork for either party to renege with little consequence. Things quickly become complicated when one party doesn’t fulfill its end of the deal.

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

Mistake #3 – Violating copyrights 
Creative works, like photos or even blog posts, are protected by copyright. Registering the copyright to a work entitles the owner to exclusive rights to publish, use, and distribute it. While exceptions exist, most copyright violations incur significant penalties, including statutory monetary damages that can range in the amount of $750-$150,000 for each work infringed. Gigi Hadid, a celebrity influencer, was famously sued three times for copyright infringement – twice for posting photos of herself owned by paparazzi and once for posting a copyrighted photo of her boyfriend. Influencers without Hadid’s legal budget should always carefully consider copyright when posting a photo for commercial use.

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

Want to avoid these mistakes? Contact an experienced attorney to discuss the benefits of trademark registration, the importance of contracts, and how to best safeguard your intellectual property.



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