Did you know there are things you CAN and CAN’T do when it comes to creating brand content?
The modern day “influencer”, when in partnership with a brand, is labeled as an advertising channel. Influencers, as well as brands, are responsible for abiding by key advertising laws when producing and distributing content. The top ad agencies, marketers and advertisers may know these laws like the back of their hand - but do you?
Brands and influencers share responsibility for the enforcement of advertising law, though historically the legal implications tend to affect the bigger of the two parties.
DISCLAIMER: The information that I am going to share with you with you may encroach on legal territory. The information I am going to share about running a LEGAL campaign comes from the constant learning that we influencer marketers need to do to remain compliant with our campaigns. Much of this information should be taken as guidance only - not legal advice (I’m not authorized to give that). This information is also a reflection of the most up-to-date regulatory guidelines on the date of publish.
When crafting The Creator Elevation Workshop, I did a research and re-visit to FTC land to get clear on the programs that I had less familiarity with - ambassadors and gifting. Naturally, I went digging for examples from some of my influencer favorites, only to find that my top favorite and ESTABLISHED influencers were not abiding by proper protocol for FTC disclosure. Weekly, my former colleagues and I send each other celebrity posts in which disclosure is not present or has been sneakily hidden or minimized.
The FTC requires that you disclose your partnership with a brand in HIGH VISIBILITY, no matter if you are gifted product, a longterm ambassador, affiliate or simply contracted for a single campaign.
Although there is a common misconception that disclosing paid partnership ruins the “effectiveness” of brand partnerships, several studies have indicated no effect or have noted improvements in ad recognition and recall, especially for retail brands.
Disclosure is actually required in every scenario where a user may be inclined to evaluate content differently if they knew about the nature of the partnership between the brand and influencer. if Here are the most up-to-date guidelines you should consider while disclosing or requiring disclosing:
Use the paid partnership tool via Facebook and Instagram. It should be available to creator and business profiles.
AD must be visible before any READ MORE breaks on content (within the first two lines)
On YouTube, a disclosure statement must be verbal + in the description box
On Tik Tok, you can use #ad in the text
On Snapchat and Stories ad must be visible on at least the first frame of your ad-set or verbally called out.
On blogs, you should include a disclosure statement at the top of your blog post.
You must disclose EVERYTIME YOU POST. The assumption is that you have new audience or audience may be unfamiliar with your relationship with a certain brand.
You must disclose on CONTENT. Stating you are an ambassador on your WEBSITE while posing about something in stories is not considered proper disclosure.
The FTC FAQs are a great place to review some specific popular questions - but all point to the same thing: relationships between you and brand must be clear, visible and present when you post.
Image / Video Copyrights
In order to use a non-original image or video within your content, you must have license and permission to do so. Be aware that even some “unique” work of arts and composition can fall under copyright law and any direct duplication of style can also be considered a violation of intellectual property laws.
Use royalty free, license free stock images and video
Purchase a license and/or pay royalties on images and video
Use content owned by the brand with express, written permission to do so
Use random images, logos or media from Google or other sources in commercial works (ads are commercial works)
Use templates or images provided for non-commercial use, for commercial use (ie. Canva photos and templates)
Use any other influencer/creator content or distinct content style without written permission
It’s a best practice to always do your own work and create unique original works when shooting media for partnerships.
This has become more centric to conversation as Tik Tok and Instagram stories with music are popular ways influencers create branded content. In order to use music that is not yours within your content, you must again have the license and permission to use that music. Popular music should not be used for your brand sponsorships - and it can be TEMPTING! Especially on platforms like Tik Tok which revolve around the use and republishing of other creator’s media!
Music rights do not just apply to sponsored content, but really any commercial content including YouTube videos, especially those monetized with ads.
Use royalty free, license free stock music for your videos
Purchase a license and/or pay royalties on music. Creative Commons is a really popular license for YouTube creators
Receive a license extension transfer from the brand you are working with that owns a license for music
Be offered permission (I mean, if you were tight with the artist and label, this could be a possibility, but it’s a far stretch for most normal people.)
Use any old music in sponsored content just because it’s offered by the platform
If music must be used, it’s best to seek out royalty free, license free music or purchase a license for a specific track.
Disclaimers / Prohibited Ads
Some industries, specifically regulated industries, have their own advertising laws that must be followed from governing bodies. For example, supplements and pharmaceutical drugs are required to include the FDA disclaimer anytime they make a claim about a product through advertising.
The statements made regarding these products have not been evaluated by the Food and Drug Administration. These products are not intended to diagnose, treat, cure or prevent any disease.
(Most Common Shortened FDA disclaimer)
Alcohol brands also have rules they must abide by. Over 75% of your audience must be verified over the age of 21 and you must include a disclaimer.
Must be 21+ years of age or older. Enjoy Responsibly.
(Most Common Adult Beverage Disclaimer.)
I have also seen Prop65 warnings in influencer content.
Know the industries you are working with (or working in!) and know if advertising disclaimers are mandatory - if so, they will be required in your influencer content too. While most brands should and will provide this in guidelines, it's important to be aware if these are missing, especially when working with regulated products.
Similarly, you are required to also abide by the terms and conditions of the platforms you "influence" on and any rules THEY have about advertising. The most known instance of this right now is in the tobacco and cannabis space. Facebook and Google (who own Instagram and YouTube) currently prohibit the advertising of firearms, cannabis and tobacco on their platforms. As an advertiser, you could be fined for facilitating anytime of gifting or paid partnerships with products in these spaces.