Tag: Carter Law Firm

• Lawsuit Filed to Unmask Anonymous Penis Sender

  

  Last week, Melody Lenox filed a lawsuit in Dallas County, Texas for a court order to determine who sent her a penis-shaped gummy candies via Dicks By Mail.

  At first, this sounded like an extreme reaction. If someone spent $15 to send me candy via mail with a note that says “Eat a Bag of Dicks,” I’d probably laugh, and then eat them – because gummy candies are delicious. However, learning about the larger context of the situation, Lenox’s reaction seems reasonable.

  The Bigger Story
  Lenox is the head of human resources at Axxess Technology Solutions, a position that requires her to be the bearer of bad news to some employees. Prior to this unsolicited dick package, she allegedly had her car keyed and was the target of fake posts on Craigslist. She asserts that these acts are related.

  In this context, pursuing a harassment lawsuit against the sender of these candies (assuming the same person(s) are committing these acts), makes sense. Ongoing acts like this are unacceptable.

  What I suspect is happening in this case is Lenox filed a lawsuit against John Doe and then requested a court order to get the purchase information from Dicks By Mail. (Many companies have privacy policies that state they’ll protect your information unless they are required to provide it in response to a court order.) While it’s easy to key a car or post a fake Craigslist post anonymously, sending candy by mail requires a credit card, which will eventually lead to a real person – the suspected harasser.

  Unmasking the Anonymous
  Anytime you do something anonymously, be prepared to be unmasked. When you act anonymously online, there’s always a digital paper trail that shows the IP address of the internet connection used, the GPS location of your smartphone, the profile information of an anonymous website or social media profile, and in this case, the credit card information used for the transaction.

  There have been plenty of situations where a person lost their job or found themselves in a lawsuit when their anonymous persona was unmasked. Using the internet is not an effective way to maintain your anonymity – unless you have mad skills in this area. (And if you have to question whether you have mad skills, you don’t.)

  More about Dicks By Mail

  

  Dicks By Mail is a hilarious way to send a light-hearted sugar-filled message. The company does not endorse the use of their service to threaten or bully someone. If you receive Dicks By Mail it should only be for two reasons: “[S]omeone thinks you’re either a dick or wanted you to laugh!”

  And they do caution people who come to the site with vindictive intent: If you are sending this with the intent to ruin someone’s day, then maybe it’s you who needs to eat a bag of dicks.”

  In case you were wondering, yes, Dicks By Mail is a U.S.-based business, so if you want to stimulate the economy while telling your elected officials what you think of them, this may be a creative way to send a message (though, it may not be effective since they won’t know it came from a constituent).

  The laws that apply to the internet are constantly evolving as the courts are encountering more internet-based problems. If you want to connect with me to keep up with my thoughts about social media law, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  January 3, 2017

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  Ruth Carter

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  Internet law

  Arizona social media attorney, being anonymous online, Carter Law Firm, Court order for personal information, Dicks by Mail, internet harassment, internet privacy, Melody Lenox, Penis candy, Phoenix internet lawyer, Ruth Carter, Suing John Doe, Unmasking the anonymous, VenJuris

• Copyright License for Commissioned Art

  

  There are services that will print your photos and other artwork onto canvas – even in Walgreens. I recently heard of a situation where a customer commissioned an artist to create a portrait. The artist created the work and sent it to the customer as a JPG file, that the customer could use to get it printed onto paper or canvas. This may be a more efficient and cost-effective way for artists to create original pieces for customers.

  The customer took the image to be printed on canvas, and the photo processor refused to do it without a release from the artist. I’d never heard of a printer requiring this, but the customer encountered this problem when they tried to use two different printers. To avoid such problems and delays in the future, the artist should provide a license with the JPG file for printing in case the customer is required to provide it.

  Photo Processors and Copyright Infringement
  Should photo processors be concerned about customers using their services to make unlawful copies of another person’s work? Probably not. I suspect a customer that comes in with a JPG to create one photo product is likely not committing copyright infringement. Of course, there’s an exception for art that is so well-known that a reasonable person would recognize the likelihood of infringement.

  One way a photo processor could protect themselves from accusations of contributory copyright infringement would be to include a check box on the order form where the customer attests that they own or have permission to use the image in this way and indemnify the photo processor in the event of infringement lawsuit and with reimbursement for all related costs and damages. I know the company I use to print my custom t-shirts has this on their order forms.

  License for Commissioned Work
  This problem sounds like it’s easy to fix: the artist can add a licensing provision to the agreement that specifies upon payment in full, the customer will receive a JPG of the work and a license for how the customer may use it. That provision can specify that the artist retains ownership of the copyright and the customer may have the unaltered JPG printed on paper, canvas, and any other permitted medium for personal use (which may involve soliciting the services of a third party printer). That should hopefully be enough to satisfy the concerns of any printing service.

  The artist may want to add other licensing terms, such as it’s a non-exclusive, paid-in-full, royalty-free license, whether the license is perpetual or time limited, how many prints the customer may make, and any other permissions or restrictions the artist wants to impose of their work. An intellectual property lawyer can provide more information about what provisions to include in such an agreement.

  I was surprised to hear about this situation, especially if the customer only asked for one print. I would expect the order to be more extreme to raise a red flag for a printer, but on the other hand, I’m pleased to see printers being mindful about what they’re being asked to create. The laws and rights related to intellectual property are complicated and always situation-dependent. If you want to connect with me about your intellectual property rights as a consumer or an artist, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  December 27, 2016

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  Ruth Carter

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  Intellectual Property

  Arizona intellectual property attorney, artist contract, artist licensing agreement, Carter Law Firm, commissioned art, commissioned art copyright, contributory infringement, Copyright infringement, copyright licensing agreement, Phoenix copyright lawyer, print to canvas copyright, Ruth Carter, VenJuris

• Using Movie Clips in your YouTube Videos

  

  Some people incorporate clips from mainstream movies into their YouTube videos. Depending on the circumstances, it may or may not be legal.

  Movie Studio’s Rights
  Whoever owns the copyright in the movie has the exclusive right to control where the work can be copied, distributed, displayed, performed, and what derivative works can be made from it. This applies to the whole film and clips of it. The copyright owner is also the only one who can come after someone for copyright infringement. So, if they don’t know or don’t care about what another person is doing with their work, that person will never get in trouble.

  What about Fair Use?
  The powers that wrote the Copyright Act understood that existing artwork inspire other artists to create new works. To that effect, they created the fair use provision of the copyright law (17 U.S.C. § 107 if you want to look it up).

  The fair use law allows a person to use another’s work for the purpose of criticism, commentary, research, and teaching – often in ways that thoughtfully add to the existing work. The law provides four factors that the court may consider in determining whether a use is copyright infringement or fair use (which I turned into the handy mnemonic device PAIN), but these are merely points of consideration.

  The fair use factors are not a mathematical equation to use to get a definite answer. The only way to know for certain if a use qualifies as fair use would be if there’s a lawsuit and the court makes a ruling on the matter. However, if the use of another’s work is transformative and doesn’t become a substitute for the original work in the market, there’s a good chance it’s fair use.

  One way to avoid the issue about whether using a clip is copyright infringement or fair use, would be to get permission to use the clip by purchasing a license. Without this permission, there’s a risk that the copyright owner will order your video to be removed until the offending clip is removed.

  Using a Movie Clip – Good Idea or Bad Idea?
  If a client asked me about using a movie clip for a purpose other than criticism, commentary, as a teaching demonstrative, or an original compilation with other works, I’d challenge them to explain why they want to use that clip and what value it adds to their work. I’d also encourage them to at least do their homework on the copyright owner to see if they have a track record of going after people who use clips of their work without permission.

  Ultimately, I respect my clients’ choices, but I try to help them make informed decisions about the risk they’re accepting when they use another’s work. Copyright and fair use situations are always complicated and always depend on the specific circumstances. If you want to connect with me and hear more thoughts about copyright, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  December 20, 2016

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  Ruth Carter

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  Intellectual Property, Internet law

  Arizona intellectual property attorney, Carter Law Firm, Copyright infringement, Fair Use, Internet Law, movie clips, PAIN, Phoenix copyright lawyer, Ruth Carter, social media law, VenJuris, YouTube rules

• Year-End Visit to the Accountant

  

  Every business owner needs an accountant, and a good accountant is worth their weight in gold.

  I’ve been saying that for years. Actually, I recommend visiting your accountant twice a year – once during tax season and once at the end of the year. And just to show I “eat my own dog food,” I wanted to share my experience seeing my accountant this fall.

  Planning Ahead for Next Year’s Taxes
  Visiting my accountant is a great way to begin the process of winding down the year. I brought him a copy of my Quickbooks. (I’m probably his only client who keeps their USB on a Star Trek key chain.) He did a quick review my books for the year to date, made sure everything is categorized properly, and he gave me an estimate of what I should expect to pay in taxes come next April. (I don’t get upset when I have to pay taxes. It means I made money.) I find it reassuring that my tax bill isn’t a big mystery looming in the future. With his estimate, I can budget in my expected tax bill starting December or January.

  Avoid the Tax Season Insanity
  When I meet with my accountant in November/December, we get to have a laid back conversation about my business for the last year and what’s on the horizon for the next year. This gives him a chance to provide more thoughtful advice since he’s not in the middle of the insanity of tax season. Meeting before the end of the year gives him a chance to give me any advice regarding an end-of-the-year spend-down or if I have a big purchase coming up, whether it matters which tax year it happens.

  Connecting with a Fellow Entrepreneur
  My accountant is also a fellow entrepreneur who meets with other entrepreneurs for a living. When I share my ideas for my business with him, he gives me suggestions from his own experience and from watching what’s worked for other clients.

  I’m always happy to meet with my accountant and never flinch at paying his bill. If you haven’t scheduled your year-end meeting with your accountant, I strongly recommend it. If you don’t have an accountant for your business, get a referral from a trusted professional. Your accountant is your partner for your success.  If you want to connect with me and my thoughts about why every entrepreneur needs an accountant, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  December 13, 2016

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  Ruth Carter

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  Business Law

  Arizona business attorney, business taxes, Carter Law Firm, end of the year spend down, every business owner needs an accountant, lawyer for entrepreneurs, Phoenix business lawyer, Phoenix small business lawyer, Ruth Carter, VenJuris

• Getty Images Skirts $1B Lawsuit

  

  Earlier this year, Getty Images was sued for $1 billion (yes, that’s billion) by photographer Carol Highsmith.

  Getty Images had sent Highsmith a letter and a bill, claiming that she was using one of their images without buying the requisite license. (Getty’s known for doing this.) It turns out Getty sent her a bill for using an image that she had taken herself. In fact, Getty was selling licenses for thousands of her images. Highsmith responded by suing Getty for $1 billion for violating her rights under the Federal Copyright Act and state level laws related to licensing.

  Highsmith donated over eighteen thousand images to the Library of Congress and made available to others to copy and display for free starting in 1988. Her claims were based on the fact that Getty used her work without attribution and added their own watermark. In my previous post about this case, you can see the math that shows that $1B is a reasonable amount to request for damages given the number of photos in question.

  I previously wrote that this will be a fun case to watch, assuming it goes to trial and doesn’t end a settlement with a non-disclosure agreement. But alas, it wasn’t meant to be.

  The Court granted Getty and the other Defendants’ Motion to Dismiss the federal claims, leaving on the state-level claims in the case. The Parties apparently came to an agreement amongst themselves, with a non-disclosure provision, and stipulated to having the remaining claims dismissed with prejudice (meaning Highsmith can’t file this lawsuit again for these claims). The dismissal also directs each side to be responsible for their own attorneys’ fees and costs.

  Judge Rakoff wrote that he will release a memorandum explaining his ruling “in due course.” I expect it will be an interesting read.

  I feel for Highsmith. Not only did she feel like her rights were violated, but the Court disagreed with her and told her she had to pay her attorneys’ fees. That’s the risk a person runs when they pursue a lawsuit – the Court could say you’re wrong, and you had to pay possibly thousands or tens of thousands of dollars to get that answer.

  So what does this mean for future cases that are similar to this? It’s hard to say, though it appears that the fact that Highsmith made her work available for public use impacted her argument that she had rights in the images in question. I don’t expect this to effect artists who retain their copyright rights and make their work available for free through Creative Commons and similar means. (Thank you to all the artists who do this. I am forever grateful for your generosity.)

  There are a lot of issues that come into play surrounding photography, image rights, and copyright. If you want to chat more about these topics, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  December 6, 2016

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  Ruth Carter

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  Intellectual Property, Photography & the Law

  $1b lawsuit, Arizona intellectual property attorney, Carol Highsmith, Carter Law Firm, Copyright infringement, Getty Images, image rights, lawsuit dismissed, phoenix copyright attorney, Ruth Carter, VenJuris

• Should your Child have a YouTube Channel?

  

  I recently spoke at a family law conference on how to get usable evidence from social media. Afterwards, a woman approached me and said her 11 year-old child asked to have YouTube channel and several his friends already had channels. She wasn’t sure if she should let him and asked for my input.

  Google Says No
  The easy and obvious surface-level response to this question is Google (which owns YouTube) doesn’t allow anyone to have an account that is under 13 years old. (That’s the rule for all social media accounts in the U.S., by the way.) However, there’s nothing wrong with a parent creating a separate Google account to use with their child to create content for a YouTube channel.

  Teachable Moments and Skill Development
  My first response to the idea of a child having a YouTube channel, is that it’s a great opportunity to develop their skills – both as a content creator and as a person interacting with others online. Before letting the child create video content, have a serious planning discussion with them about what they want to create, their motivations for creating it, and what topics/language are off-limits. All these things should be written down; it’s good practice for creators to have a thoughtful for plan for what they want to create. You can help your child develop their video editing and copyright writing skills, as well as learn the rules about using others’ content and doing product reviews online that comply with the federal rules.

  The parent(s) should review the child’s final draft of a video before it is uploaded to their channel to make sure they’re following the rules. This is an ideal opportunity to talk with your child about the potential long-term effects of a piece of content, and how they would react if they receive feedback from peers or teachers about it at school. Also, you want to decide in advance whether you will allow comments on your child’s videos. It may be prudent to turn these off, at least at first. Allowing your child to post content online comes with the responsibility of being mindful about who is trying to interact with them – either through comments, email, or direct messages.

  Safety First
  If you let you child have a YouTube channel, regardless of their age, be sure you’re monitoring both what they’re communicating to others (publicly and privately) and what others are saying to them. If they are under 18 years old, you should have the passwords to all their accounts and their phone so you can effectively and closely monitor what they’re doing online. The younger they are, the more oversight they need. Use effective software to monitor and protect your kids. Here’s some real-life advice from geek parent Susan Baier about her experience raising a geek child:

  I also strongly recommend that you read the books by security expert Gavin de Becker, especially The Gift of Fear and Protecting the Gift. If you want a resource about the legal dos and don’ts about social media for yourself and your children, I suggest you read The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. The lessons in there apply to all social media platforms, including YouTube. If you want to connect with me and my thoughts about children using the internet, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  November 20, 2016

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  Ruth Carter

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  Internet law, Legalities of Blogging

  Arizona internet attorney, Carter Law Firm, children making videos, Children on social media, children on the internet, Children on youtube, Gavin de Becker, Ignite Phoenix, internet predators, internet privacy, internet safety, kids creating videos, kids on YouTube, phoenix social media lawyer, Raising geek kids, Ruth Carter, Susan Baier, YouTube rules, YouTube safety

• I Want to Humanize Contracts

  

  A friend from my business mastermind group asked me to draft a nondisclosure agreement for her for an upcoming meeting she has to discuss a future project with a potential collaborator. She wants to be able to discuss the project to see if they want to participate in it without fear that the other person will decline the opportunity but then steal her idea and compete against her. (My friend is very smart.)

  The first thing I did was grab my legal pad and start jotting down ideas for clauses to include – scope of the agreement, nondisclosure provision, non-compete provision, dispute resolution, severability, etc. As a lawyer, it’s my job to go through my mental checklist of all the terms the contract should have. I’ve always said that contracts are relationship management documents and they need to be written to cover that extent of it accordingly.

  This morning, as I was walking my dog, I started looking at this contract from a different perspective – how can I humanize this agreement?

  In my experience, many people are afraid of contracts or they don’t read them because they assume that they are full of legalese that they won’t understand or they’re just an annoying hurdle to clear as part of a more desirable event. When I was in law school, my friends and I went to Ladies Paintball Night; the worker behind the desk said he’d never seen anyone read the waiver prior to signing it. (We altered it, then we signed it.) When I moved to my current home, it took me hours to read the CC&Rs for my HOA. They were 78 pages long, and filled with excessive legalese I swear you needed a first-year law school education, at least property class, to understand them.

  Contracts should be written in plain English, be as short as possible (cover the scope then stop), and set both sides up to feel secure in what they’re getting into. Whenever I write a contract, I prefer to refer to the parties as “I” and “you” because that’s how people speak and think. In regards to this current project, I want to phrase the provisions in a way so that when my friend presents the contract to prospective collaborators, they don’t feel like there being attacked or distrusted. This document should help both sides feel comfortable speaking candidly. Here are a few of the thoughts I have about how I want to phrase some of the provisions:

  • I would not have asked for this meeting if I didn’t think you were an ideal collaborator for this project. But because this project is not only a central component of my future business plan and projected livelihood, it’s also dear to my heart, as a business owner, it’s essential that I protect it and myself. This agreement protects you too. This meeting, regardless of whether we work together on this project, should not be a hindrance to your ability to continue your professional pursuits.
  • Although I don’t anticipate there being any problems between us as a result of this meeting (otherwise we wouldn’t be having it), this is how we will address problems should it occur. I hope neither of us is in a situation where we must resort to these extreme measures, but as business people we know we must be prepared for the worst-case scenarios, even when working with the best of expectations.

  There is nothing wrong with contracts using the verbiage that humanizes both sides. In fact, I encourage it. People do business with people; therefore, contracts should be written from that perspective first. When appropriate, I also encourage clients to personalize their contracts and include a touch of humor or “Easter eggs” (because I’m weird like that). You can put anything you want in a contract, as long as it’s not illegal.

  I love writing contracts, and I hope I get more opportunities to write agreements that are effective for the needs of my clients’ businesses and also who they are as individuals. If you want to connect with me and my experiences as a contract writer (including how I change almost every liability waiver I sign), you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  November 12, 2016

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  Ruth Carter

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  Business Law

  altering contracts, Arizona contract attorney, Carter Law Firm, changing contracts, contracts without legalese, do I need a contract, do I need an NDA, how to write a contract, humanize contracts, nondisclosure agreement, Phoenix business lawyer, Phoenix small business law firm, plain English contract, relationship management document, Ruth Carter, Shankminds, Venjuris law firm

• Choosing a Business Entity

  

  Just like you wouldn’t ask your plumber to change your car’s oil, don’t ask a lawyer what type of business entity you need. Ask your accountant.

  What your Accountant Can Do
  Anyone with access to their state corporation commission website can see the different types of corporations and limited liability organizations are available where they live. Determining which one is the ideal for your situation is best left to your accountant, an accountant who does business accounting. The tax code is too complex and has too many changes year-to-year for a regular person to navigate on their own. Get yourself an accountant which whom you can have a candid discussion about your current financial situation and your future plans, so they can tell you what’s the right business entity for you. What’s right for your friend, may not be the best plan of action for you.

  And I’ve always said, a good accountant is worth their weight in gold. I’m happy to pay my accountant’s bill because handles the tax side of my business for me and he always answers my random questions.

  How a Lawyer Can Help
  A business lawyer can describe the differences between the types of corporations and LLCs, what it costs to file the documents in the state to start an entity, whether an annual report is required, and other legal obligations and suggestions accompany different business entities. If you have a limited budget, filing your documents with your state by yourself is one way to save on legal fees. If you can afford it, and you don’t want to take the time to do it yourself, you can hire a lawyer to do your filing for you and take care of the require publication.

  Your lawyer can also create the documents that accompany the creation of a new business – bylaws, operating agreement, terms of service, and/or contract templates. They can also advise you about how to protect your intellectual property and the importance of maintaining your corporate veil. Even if you don’t need a lawyer to create your business entity, it’s pragmatic to bring your lawyer into the loop sooner than later, just to make sure you have your ducks in a row.

  Being a business owner and running the business are two full-time jobs in one. As an entrepreneur, I sympathize with what my clients go through with the challenges of providing for their customers and managing the nuts and bolts of being a business owner. If you want to connect with me and my experience as a business owner, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  November 3, 2016

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  Ruth Carter

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  Business Law

  Arizona business attorney, Carter Law Firm, corporation or LLC, create a corporation, create an LLC, do I need a business accountant, file for a corporation, filing an LLC, how to select a business entity, how to start a business, llc vs corporation, Phoenix small business lawyer, Ruth Carter, VenJuris

• Update on Arizona Drone Laws

  

  UPDATE: Americans don’t have to register their drones if they’re only used for non-commercial purposes (May 19, 2017). Ignore anything below that says you have to register your drone if you only use it for fun.

  Earlier this year, Arizona passed a new law regarding unmanned aircraft systems (UASs), aka drones. The purpose of this law is to prevent cities from making separate regulations. This law makes it a misdemeanor to use a drone in a way that interferes with law enforcement or fire operations. It’s a felony to use a drone to “intentionally photograph or loiter over or near a critical facility in the furtherance of any criminal offense.”

  I have heard reports of drones interfering with aerial firefighting operations, causing planes to be grounded, but I have yet to hear of anyone be cited or arrested for violating this law.

  On the flip side, the law is helpful to hobbyists by requiring cities with more than one park to allow drones in at least one of them. Beyond that, the law requires drone operators to comply with the Federal Aviation Administration(FAA) rules of UASs.

  Rules for Flying a Drone for Fun
  The FAAs rules for flying a drone as a hobbyist are pretty simple and straightforward:

  • All drones over 0.55 lbs must be registered. Your drone and its cargo total weight must be under 55 lbs.
  • You must always fly your drone in your unassisted visual line-of-sight (exception for prescription eyeglasses or contacts).
  • You must fly your drone at an altitude that is less than 400 feet.
  • Always yield the right of way to manned aircraft.
  • You can’t fly a drone within 5 miles of an airport without prior notification.

  I imagine some drone enthusiasts or clubs have mapped where the 5-mile radius around each Phoenix-area airport ends. Hopefully, wherever you live in Arizona, there’s a place near your home where you can fly your drone. My dog was intrigued and a little frightened when we encountered a drone-flyer at a park.

  Rules for Flying a Drone for Business Purposes
  The FAA’s rules for using a drone for commercial purposes are much more complicated. Here are some of the requirements that apply in addition to the rules above:

  • Operators must be at least 16 years old and have a Remote Pilot Airman Certificate
  • Drone operators cannot operate more than one drone simultaneously.
  • The maximum permissible groundspeed is 100 mph.
  • You must fly your drone during the day.
  • No flying drones over people (exception for those involved in the drone operation).
  • No flying drones from a moving vehicle except in sparsely populated areas.
  • No carrying hazardous materials with your drone.

  You can read the full summary of the FAA’s rules for commercial drone operations, including record and reporting requirements, on the FAA website. If your project requires violating these rules, you can apply for a certificate of waiver if you can demonstrate that your project can be executed safely.

  More Information
  If you have additional questions or want to stay up-to-date on the legalities of flying drones, check out the FAA’s UASs site or Know Before You Fly. You can also seek out a local lawyer who understands the federal and local drone rules that apply to you. If you want to connect with me, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  October 25, 2016

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  Ruth Carter

  •

  Featured Post, News

  Arizona drone laws, Carter Law Firm, commercial drone laws, drone rules, recreational drone laws, Ruth Carter, UAS, UAS rules, unmanned aircraft systems, Where to fly a drone in Arizona, where to fly a drone in Phoenix

• FTC Compliance Friendly Reminders

  

  Bloggers, vloggers, and other social influencers frequently asked me about the rules regarding disclosure when partnering with companies and using affiliate links. With holidays (and therefore holiday gift guides) on the horizon, it seemed apropos to share some helpful reminder for how to comply with the FTC’s disclosure rules when you get free product or are compensated for providing a review.

  It’s All About Transparency
  The purpose of the FTC’s disclosure rules is transparency. When people consume content, they have a right to know whether the creator has a relationship with the company or product or whether it is 100% their independent opinion. Knowing that a person has a relationship with a company, which may or may not include financial compensation, will impact whether a person reads or view a post and how much weight or credibility to give it.

  To comply with the transparency requirements of Federal law, social influencers must clearly and prominently label the content they were compensated to make as advertising to avoid misleading consumers.

  Disclosure First
  Many influencers put their notice that they were compensated for doing a post or that a post has affiliate links at the end of the content. This is likely insufficient to comply with the rules because consumers need to be informed before they form an opinion about a product that they’re reading a sponsored post or an ad.

  In general, you should make a disclosure in the post itself and shortly before the reader receives the advertising message. The FTC recommends putting it in front of or above the ad’s headline. Additionally, the notice need to be clear and unambiguous language. To determine whether your disclosure complies with the FTC, consider your notice from the perspective of the reasonable consumer who’s seeing your content for the first time. Will he/she notice the disclosure statement and understand that they’re reading or seeing an ad?

  The FTC says terms like “ad,” “advertisement,” or “sponsored advertising content” are likely to be understood but terms like “promoted,” or “sponsored by [XYZ]” don’t comply with the disclosure requirement because they could be interpreted as merely underwriting the content without influencing the statements made in it.

  So what does this mean? If you write a review of a product that you got for free or got paid for writing the post about it, you have to disclose at the top of the post that you have a relationship with the company. If you use affiliate links, you have to clearly disclose those relationships as well, prior to posting the link. (In some circumstances, using the term “affiliate link” may be insufficient if the average consumer doesn’t know the difference between links and affiliate links. Yes, this happens – I recently attend a blogging conference where an attendee assumed that the terms “link” and “affiliate link” were interchangeable.)

  Every Post, Every Platform
  When you have a relationship with a company or are compensated for writing about a product, you have to disclose it to your audience every time you write about it – regardless of the platform it’s on or what device people use to access it. Every single time. (Yes, I know this is annoying, but it’s what the FTC requires.)

  Disclosure is Everyone’s Responsibility
  Everyone who is involved in the creation or distribution of native advertising should review the content to ensure that the required disclosure is present and that the material does not mislead the audience about the product or the relationship between the writer and the company. This includes middle men like ad agencies. If anyone is found to be in violation of the FTC rules about native advertising, they could be fined by the FTC – the company that created the product or service, the writer, and anyone in between who was involved – up to $16,000. That’s a stiff penalty for forgetting or refusing to disclose a relationship.

  If you want to learn more about this topic, I recommend the FTC’s article, Native Advertising: A Guide for Businesses. If you want to chat with me about these issues, like how to incorporate these requirements into website terms of service or contracts with third party content creators, you can contact me directly or connect with me on Twitter, Facebook, YouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  October 18, 2016

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  Ruth Carter

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  Featured Post, Internet law

  Arizona internet attorney, blogging about free products, Carter Law Firm, disclosure rules, Federal Trade Commission, FTC fines, FTC rules, native advertising, paid blogger, paid vloggers, phoenix social media lawyer, product reviews, Ruth Carter, social influencers, VenJuris