Embrace the power of knowledge as we unravel the complexities of influencer marketing with the astute guidance of "The Influencer Attorney" Bobby Robinson. This episode is a must-listen for anyone vested in the digital space, from influencers crafting their brand to businesses forging impactful partnerships. Learn the intricacies of FTC guidelines and why they're not just fine print but a foundation for your online endeavors.
Navigating the digital landscape, we've shifted our gaze towards the crucial mergers of content creation and legal savvy. Delving into the world of influencer agreements with Bobby, we illuminate the dos and don'ts of content ownership, the dynamics of exclusivity clauses, and the pivotal art of negotiation. Moreover, we underscore the immense value of education - not merely as a safeguard but as a tool empowering your journey through the maze of FTC compliance, ensuring transparency reigns supreme in your collaborations.
Capping off, we present a compelling narrative on why influencers should view their craft as a legitimate business, emphasizing the significance of intellectual property rights and the strategic move towards establishing an LLC. Highlighting LinkedIn's freshest 'Thought Leader' ad format, we probe into the evolving nature of endorsements and their legal implications. Join us for a comprehensive exploration that will equip you with the wisdom to harness your influence, protect your assets, and shine in the digital marketplace.
GUEST LINKS
AI TOOL OF THE WEEK: Tweet Hunter
STAT OF THE WEEK: 50% of Internet users view videos before making a purchase
Learn More:
Embrace the power of knowledge as we unravel the complexities of influencer marketing with the astute guidance of "The Influencer Attorney" Bobby Robinson. This episode is a must-listen for anyone vested in the digital space, from influencers crafting their brand to businesses forging impactful partnerships. Learn the intricacies of FTC guidelines and why they're not just fine print but a foundation for your online endeavors.
Navigating the digital landscape, we've shifted our gaze towards the crucial mergers of content creation and legal savvy. Delving into the world of influencer agreements with Bobby, we illuminate the dos and don'ts of content ownership, the dynamics of exclusivity clauses, and the pivotal art of negotiation. Moreover, we underscore the immense value of education - not merely as a safeguard but as a tool empowering your journey through the maze of FTC compliance, ensuring transparency reigns supreme in your collaborations.
Capping off, we present a compelling narrative on why influencers should view their craft as a legitimate business, emphasizing the significance of intellectual property rights and the strategic move towards establishing an LLC. Highlighting LinkedIn's freshest 'Thought Leader' ad format, we probe into the evolving nature of endorsements and their legal implications. Join us for a comprehensive exploration that will equip you with the wisdom to harness your influence, protect your assets, and shine in the digital marketplace.
GUEST LINKS
AI TOOL OF THE WEEK: Tweet Hunter
STAT OF THE WEEK: 50% of Internet users view videos before making a purchase
Learn More:
Ignorance of the FTC's legal requirements can be costly for influencers and for businesses that want to work with influencers and content creators. Do you know all you should Today, on this next episode, let's shed some light together with the one and only influencer attorney yes, an actual attorney, lawyer, man of the law On this next episode of the digital marketing coach podcast.
Speaker 2:You've got Neil on your side, because Neil Schaefer is your digital marketing coach helping you grow your business with digital. First marketing, one episode at a time. This is your digital marketing coach and this is Neil Schaefer.
Speaker 1:Hey everybody, Neil Schaefer here, your digital marketing coach, and welcome to the latest episode of my podcast, number 349. Wow, almost up to 350. You have to wait for next week for that special episode, but today, before we get to our interview with the influencer attorney, Bobby Robinson, I want to talk about the start of the week and the AI tool of the week. So the start of the week is actually going to be a combination of three different stats from my latest blog post about video marketing statistics. And I think we know that intrinsically, as businesses, as marketers, as entrepreneurs, as content creators, we need to do more video right. And the video isn't just for social media, it's not just for YouTube, it's also for our website. So interesting data. Every year or two, I revise the stats and these numbers keep going up. But I want to share three stats with you and then tell you why they're important. So, 50% of internet users view videos before making a purchase. If you have ever viewed a video whether it's on TikTok, on Instagram, on LinkedIn, on Facebook, on Amazon, on YouTube before making a purchase, raise your hand. Well, half of you would raise your hand, according to this statistic. Here's another one Most customers 69% prefer watching a video over reading text to learn about products and services, and then 96% of buyers utilize videos as a means to gain knowledge about a specific product or service. So today I was on a quarterly one-on-one call with a member of my digital first mastermind community. We are currently at full capacity. Someone actually just took up that 15th spot, but if you go to NealShapfordcom it's nice membership you can sign up and be on the waiting list. Nevertheless, we had a call about this and he runs a B2B platform. It is a platform that helps well, let's put it this way it helps manufacturers of clothing sell uniforms to corporations and they basically provide the platform. But it's very much B2B. And not only does he want to promote this company on social media, on YouTube, but he also has an issue with he wants to not only train his employees and customer support but reduce the amount of customer support inquiries that they get. So, if you think about it, creating educational how-to tutorial videos and guess what, On the day I'm recording this podcast, Thursday January 11th, I just published a blog post about how-to videos, how to create them and tactics around them and the different types of how-to videos that exist.
Speaker 1:This is a great way of creating videos that you can share on your socials. You can also have your customer support. People point to and, at the end of the day, they are going to help people that are feeding into these stats that I'm talking about. They're going to help them decide, hopefully by your product. So that is something that I want you to think about really seriously as we embark on this new year of the different ways of leveraging video. We're not just talking about TikTok videos. Yes, there are people, especially for B2C brands that target younger generations. Yes, TikTok is a search engine. They will go and look for your brand, Are people making videos about your brand? So there's another influencer marketing aspect or perspective we can bring up, which we'll talk about that in another episode, but nevertheless, video creation has a lot of different meanings and I really want you to take it even more seriously in 2024.
Speaker 1:So this week's AI tool. I'm actually having fun with this new segment of thinking about all the different tools and all the different AI technology out there. I want to introduce you to TweetHunter. You can go to neilshaffercom slash tweethunter one word and you can try it for free. Cancel anytime. This tool is something that I use on a regular basis and it is specifically for Twitter. So, if you're not on Twitter or if you want to be on Twitter and find an easy way to manage it, Twitter is still generating. Recently, Pinterest has moved back into the number one spot of generating traffic. For neilshaffercom, Twitter is still number two. Despite all the changes, despite the fact that less people are there and I'm actually less active there, but I'm still active there and I'm still sharing content from my website, as well as other content, curating content and just sharing my thoughts and ideas.
Speaker 1:Tweethunter is like this Swiss army knife that gives you lots of different Twitter functionality. Some of it is machine learning and some of it's AI. So, for instance, what's machine learning? So you can set it to automatically retweet your tweets that have at least X number of likes, X number of retweets. So I've been able to create a 60 tweet queue of tweets that have gotten at least 10 likes, that I have one window every day it's actually at 106 PM. You can go to my profile. Every day I will tweet what is called an evergreen tweet, and these are tweets that have already done well. It's really interesting is that to the average eye, because on average, they're only published once every 60 days. It looks like it already has a lot of likes and retweets on it, so I'm not going to say it's cheating, it's sort of a growth hack, but it does look really good.
Speaker 1:The other thing that Tweet Hunter does is, after 24 hours, if your tweet does not have a minimum of X number of likes, you can actually ask Tweet Hunter to automatically delete it, and I do this for any tweet that doesn't have at least three likes. Once again, this is all about social proof and credibility. Fortunately, 80 to 90% of my tweets do get at least three likes, but if you are concerned about that and you're branding, it's another thing that you can do. What's really cool is that Tweet Hunter actually has a AI tweet functionality. So it's AI generated tweets that are refreshed every day, and it says tweet them directly or use them as inspiration. Now, I never tweet these things directly, but it's like, yeah, I've always thought that and I've never put it into words, and now Tweet Hunter is allowing me to put these into words. It's actually pretty incredible.
Speaker 1:Well, let's look at one of these. It's time for a social media detox Unplug, unwind and reconnect with the world around you, Taking a break from the constant scrolling can do wonders for your mental health. Try it out and see the difference it makes. This actually is something I did at the end of the year. First week of this year I really tried to take as much of a social media detox as I could and all I gave Tweet Hunter was about 10 different keywords of keywords that are important in my business. So social media marketing, digital marketing, content marketing, influencer marketing.
Speaker 1:So what's really cool is I can click on this edit and tweet button. I know you can't see this, but when I click on it, this is where the power of AI comes in. So now it gives me about a dozen different options Improve your Tweet with AI so I can add emojis. I can make shorter, I can create a CTA. I can improve the Tweet, make it more casual, more formal, more assertive. I can keep writing if I want to sort of go into more depth and create a thread. So that is one of. That's basically three of the many, many different tools that are part of Tweet Hunter, part AI, part machine learning, but all very, very cool. Once again, try it out for free. Nealshafercom tweet T-W-E-E-T. Hunter H-U-N-T-E-R. One word, and if you need help getting started. Please ping me. At the end of the episode I always give out my contact details, so I want to get into today's interview. So without further ado, here we go. I'm going to interview with the influencer attorney himself, Mr Bobby Robinson.
Speaker 2:You're listening to your digital marketing coach. This is Nealshafer.
Speaker 1:Good morning everybody. This is Nealshafer, your digital marketing coach, and welcome to another edition of the podcast of the same name Influencer marketing. We often look at influencer marketing from the brand perspective. What do brands need to do to get involved? What are the legal restrictions or legal guidelines that brands need to follow when it comes to influencer marketing? Well, today we're going to flip it around and look at influencer marketing from the influencer or content creator perspective and look at these same legal issues.
Speaker 1:Now, you may think this is irrelevant to you, but when brands start asking employees to be part of employee advocacy programs, or there's a lot of different scenarios that you may not have thought of before where you, as an individual, might actually be playing the role of an influencer and we see this happening more and more you don't have to have a million followers to be an influencer and, yes, influencer marketing happens on platforms like LinkedIn as well. So, without in mind, I have the honor of introducing to you someone who focuses on the legal issues that influencers face when it comes to influencer marketing. Obviously, he does more than that, and I can't wait to dive into the topic. So, without further ado, let me introduce him on stage. He is known as the influencer attorney, mr Bobby Robinson. Bobby, welcome to the show.
Speaker 3:Hey Mayo, how are you Super excited to be here today.
Speaker 1:Oh, it is a complete honor to have you on stage, my friend, as with all my guests, I like to begin with just the backstory. I don't think when you were growing up you said you wanted to be an influencer attorney. Obviously, the word influencer didn't exist back in the day. I'm curious as to are you a traditional lawyer that found your calling working with influencers, or you know how did you get involved in doing what you do today?
Speaker 3:Well, yeah again. Thanks, neil, so much Love your content. You're amazing and great voice in this space. So yeah, I've been a traditional corporate intellectual property attorney representing brands and athletes and entertainers and certainly during the pandemic things started to shift. Most of my practice at the time was corporate M&A work. That work had significantly dried up and I had a lot of my clients who were brands reach out to me and say, hey, we are looking to engage in influencer marketing for various campaigns, and that's kind of how I got into it and I saw it as sort of this blue ocean. I didn't see a ton of attorneys speaking on influencer marketing or social media law and me being sort of a millennial attorney, I thought it would be a great opportunity for me to brand myself and that's what I did and it certainly has paid off significantly, so much so that you know influencer marketing represent a big portion of my area of practice. I do some corporate M&A work still, but branding social media work kind of keeps me pretty busy.
Speaker 1:That's a really fascinating story. You know, covid changed us in a lot of ways. Before COVID, this podcast was known as Maximize your Social Influence, with my publishing the Age of Influence, and now it's your digital marketing codes. I've also, like many others, have had a pivot. So I'm curious brands reaching out to you wanting legal help for influencer marketing. My impression of a lot of brands is especially back then they may not have known that they even needed to contact a lawyer regarding this. I'm curious what were some of the things that they were? Were they worried? You know how understanding were they of FTC influencer guidelines, which I know we're going to talk about today. What was sort of the status quo a few years ago of brands working with influencers vis-a-vis these legal requirements?
Speaker 3:You know, it was certainly the Wild Wild West for sure, right, it was direct messaging of influencers. And I would ask the brand, I'd say, well, where's the influencer agreement? We have no agreement. And so the engagement was really just, hey, we reached out, they agreed whether it was free product or product placement, you know things of that nature. So the contracting component was sort of the biggest red flag, right.
Speaker 3:And then, obviously, as content consumption became sort of very rampant during COVID it was then the IP issue started to really pure their head, right, you know who owns the content, how long, and do we have a license, and things of that nature.
Speaker 3:And then that sort of started to scrutinize IP agreements again, right. And then sort of, how do we educate influencers on what their rights were? And so, you know, you get the diagram of the three-legged stool, right, because I represent all three, I represent brands, I represent agencies that represent brands and influencers, and I represent some high-profile influencers directly, and all of them have unique sort of positions as it relates to some sort of contractual relationship. But those are some interesting issues that come up. And then, of course, the regulatory component, which we'll dive into with regards to FTC compliance, and you know, for a while we hear influencer marketing, but it's just another form of advertising and so you're kind of get into the cloak of advertising law and disclosures and things of that nature and a lot of folks weren't really paying that much attention to it. Right, it's a very fascinating space and so much fun.
Speaker 1:Yeah, no, it's funny, you mentioned that. So I actually teach this class at UCLA Extension on influencer marketing. I just started summer semester and we only have, you know, there's only 10 hours of curriculum, but I spend one of those 10 on FTC influencer guidelines and actually start with the history of the FTC and understanding and how it's always playing cut up right, that's right, and you can most recently with short form videos. It's really trying to get caught up and I hope you get to that as well. But I'm just curious. You know, and I know you're going to talk about it from the influencer perspective, from the brand perspective. Today, I know when you just started, this concept of an influencer contract didn't seem as common with people reaching out to you. Today, would you see a majority of brands doing influencer marketing have influencer contracts in place, or are they still trying to play catch up as well?
Speaker 3:Yeah, I certainly see it more so with established brands. So your larger conglomerates, where you don't see it as much today as our startups, particularly now I'm starting to see a lot more tech companies reach out to me wanting to particularly tech companies on where they'd be help ed tech, healthcare tech, financial, fintech, looking to engage with startups or influencers. They're not knowing where to start right, they have no clue how to engage. But I would concede that some of your larger financial institutions and others that sort of brings a whole nother level right with regulatory spaces engaging with influencers. So I would say yes, certainly the larger companies, but then startups who are looking to get their toe in this space to not to be prepared contractually.
Speaker 1:Right, that makes a lot of sense. So let's dig in to. You know the topic of looking at this from the influencer perspective, and I'm sure we're going to be switching back from influencer perspective and brand perspective. But if you are an influencer or a content creator or, as I alluded to in the introduction, even an employee, how do you go and protect your IP when working with brands? And I'm assuming that this IP relates to user generated content, although I assume it could also relate to ideas that might even become products. So let's begin there.
Speaker 3:Yeah, really great point, Neil.
Speaker 3:So a lot of my.
Speaker 3:So, obviously, from the perspective of, hey, you're working with a really large brand that has a fairly established influencer marketing campaign, typically they're going to present you with an influencer marketing agreement and in that agreement it's going to sort of lay out IP ownership rights. Typically, there's going to be a transfer provision basically saying that, hey, if you have to shoot the content, we're going to actually own the content, and there's some assignment provisions in there. If that language is absent, typically if the influencer has to hire the photographer, hire the videographer, do the editing, post it on their platform, and so forth, whoever creates the thing from a copyright perspective typically owns that content, and so it's really important to know, if you're a brand, whether you actually own it outright or do you simply have a license to that content, and so we want to make sure it's laid out that way in the agreement. But not oftentimes that tends not to be the case, and so if you're an influencer, you do want to be clear about who's going to own the content at the end of the day.
Speaker 1:Got it. So it comes down to this notion of content ownership. And if they are saying, come in for a photo shoot, and you're going to their studios using their cameras, their photographers, for a photo shoot, the default is, if nothing is written in the contract, that the copyright is going to become their content, unless you specify otherwise that's right.
Speaker 3:And oftentimes if you're going to go into their studio they may also have you sign like photography releases or media releases and things of that nature just to add an extra layer of guarantee that they actually own it and they have your permission to use it in a way that sort of makes sense for them. But even the usage rights are critically important because you can sign on and say, hey, we're going to do this campaign only on social media platforms, and then you turn on the TV and there you are on a commercial or a billboard, and so the usage rights and the distribution rights of that content are critically important because that directly ties into your pricing strategy in terms of how you otherwise would have priced that engagement.
Speaker 1:So I think for content creators listening, this is a really interesting point. You mentioned you had worked with some celebrities or maybe athletes, and I think they understand all this, that their brand is their IP and how they make money. On the other hand, if you're like an up and coming influencer or content creator and it's like, oh wow, I'm on TV now. This is awesome. You don't realize that you're sort of leaving money on the table, and I think this comes down to a lot of influencers not being savvy enough from a business perspective of how to really leverage their assets. So maybe you can explain.
Speaker 1:I think a lot of influencers are so happy to get a deal with a brand they just take the contract and that's it. So I guess a follow-up question is what are those key influencer contract terms that both an influencer should be looking at, but I guess a brand it's going to be a give and take, right, but also a brand should make sure that they're very clear on, such as oh, we forgot to ask the influencer to use a hashtag. Oh, we forgot to ask for rights to use the content on our website, right? What are these key areas? I'm sure there's a few of them that we really be aware of.
Speaker 3:There are, and, neil, you raise a really good point, because the influencer relationship with the brand it's a partnership, it's a strategic partnership and I recognize that the brands that do a really good job of making sure that it's a strategic partnership. Their contracts are typically there. So there are a couple of provisions. We alluded to one earlier, neil, and that was usage rights. So we want to be clear about how does the brand, how can they use the rights to the content, right? So that's one. The other thing is this notion of perpetuity how long do they have the rights to use this content? Is it forever, which is perpetuity, or is it for a really defined amount of time?
Speaker 3:The other provision that influencers need to be aware of is exclusivity. If you're working on a campaign with a brand, typically they don't want you working on a similar campaign with their competition, and so exclusivity is very similar to a non-compete provision, right? So they want to make sure that, hey, if we're going to work with you, we don't want you to go to our next biggest competitor to do a similar campaign. So that's going to be really, really important. Obviously, payment you want to know how do you get paid and when do you get paid With larger companies? Is it okay for you to wait 180 days after the campaign is completed, or do I get paid the moment I post the content?
Speaker 1:Are there actual? Podcasts that are asking influencers to wait 180 days to get paid.
Speaker 3:Yeah, 80 days to get paid. There's the law against that there should be, and of course those are things we kind of push back on for sure. And then you know, neil, you get back to the start of this conversation around content ownership who owns it after the engagement is over. So I'd say those are the more critical provisions. If you're an influencer, of course brands will have their non-negotiables around some of those, but you should also be clear about what you're willing to accept and not accept.
Speaker 1:And again, this kind of goes back to you know, having a real clear partnership around that engagement and I guess you know I'd love for you to send a message of encouragement to influencers that it's okay to push back on a contract. Absolutely, would you say? The brand?
Speaker 3:almost expects that there's going to be pushback. You took the words right out of my mouth, buddy, so it's one thing to say hey to your point, Neil. You're so excited to just have the opportunity that you don't even read the contract and you have no idea what you just signed up for. Most brands are really, really shocked when you sign the contract on first pass. You get it today, you sign it today and you're off, Right, that lets everyone know you really didn't read it. So that's a big red flag.
Speaker 3:And so you certainly want to make sure. Look, if a brand wants to work with you, they're going to figure out a mutually beneficial way to do so. And so there is an expectation that you're going to come back with different terms or striking of language or a balancing of language, because certainly, if a brand drafts a contract and as a brand lawyer, we're going to draft it in the best interest of the brand, Right? So whoever you're sort of representing, you're going to put their best foot forward. If you know that there's a history between the parties they've been doing brand campaigns for years you kind of understand what terms the parties are going to willing to accept and you draft it as such so that it gets executed on pretty quickly. But, Neil, I would agree with you, buddy, you kind of just expect to have some sort of comments or feedback on a first pass on an influencer agreement.
Speaker 1:Gotcha. So really it comes down to a business mindset that the influencers would have and that this is going to be a business agreement and focusing on those areas payment exclusivity and I have seen brands push some pretty hard requirements when it comes to exclusivity. If you're in a very, very broad industry, working with a lot of brands, that could actually be quite restrictive right, very restrictive, and we have to be very thoughtful about it.
Speaker 3:Because if you're in fashion very broadly, you can say you can't work with any fashion brands. But they're tiers of fashion. Is it luxury fashion, so is it app, leisureware? So you really want to kind of get to a place We've even had to get down to naming specific competitors. Hey, you can't work with these three competitors, okay, that means everyone else is kind of free game, right. So you want to sort of be thoughtful about that.
Speaker 3:But you're absolutely right, I've had some brands that will insist on a very blanketed exclusivity agreement, or provision rather, and so you do want to be mindful of it and just understand to your point it's a business deal, it's a business arrangement and will there be significant opportunity loss if you agree to such a broad exclusivity provision and basically you're not going to be able to take on any other opportunities in fashion, particularly if you're a fashion influencer, and so that limits your lifetime earning potential. And that's why that provision is so important and it shouldn't be taken lightly and that's why obviously we were harping on this earlier to just make sure you read it and come back with some terms. That kind of works in your favor also, and a good brand would want that for you.
Speaker 1:Yes, it sounds like I mean in that way. A lot of small business owners think of legal fees not as a profit center but as a cost center, right. But I suppose, looking at it this way, from an influencer perspective, working with legal help like yourself, can actually help maximize monetization opportunities to make sure they don't need money, right. So? But I'm also curious because I think there's a lot of smaller you know nano well, maybe at the micro influencer level, but they have a feeling that it just costs a lot to work with a lawyer. So when you have new up and coming, you know creators reach out to you. How do you? You know, I don't want to say pitch your services, but how do you talk about? For you know, if you're already established, if you're like a Mr Beast, then you don't need to be sold. I'm sorry.
Speaker 1:You know what is the conversation that you have with with upcoming influencers with smaller budgets, but they still need to help, right? You can Google as much as you want, but unless a lawyer looks at the actual contract and spends a time, they will not get the professional help they need. So let us know your advice there.
Speaker 3:Yeah yeah. So you're kind of preaching to the choir. That's exactly who I started out helping and I'm super passionate about smaller influencers. So I really focus on two things. I focus on providing a ton of value on my social media channels in terms of education, and then, secondly, for those that have really small to no budget, I typically like to hone in on those key provisions we just noted before. Right, so if you can't afford for a full contract review, we'll at least try to issue spot on some of the provisions that make the most sense for you. In many cases, that just may involve having a consultation to sort of get you to a place that makes the most sense.
Speaker 1:That makes a lot of sense, cool. So I want to talk about the gorilla in the room that we haven't talked about that. I think we're going to spend the remaining part of our conversation on. Which are these FTC influencer guidelines that we alluded to, and I guess I want to start with my experience from the educational perspective on influencer marketing. Is that for the most part, the FTC is going after brands, not influencers, although we've seen with Kim Kardashian and cryptocurrency that that's not necessarily the case. But is that should influencers be really worried? Is really the legal aspects of influencer contracts? Is it more the business perspective they should be worried about than the FTC slapping their wrist, or do you have a different perspective?
Speaker 3:No, I think with.
Speaker 3:So as you you're probably aware, neil, the FTC is reviewing the policies around influencer marketing and you're absolutely right, historically they have pursued brands with the deeper pockets and where influencers are big enough the Kim Kays and others they'd send these letters, these warning letters, to them.
Speaker 3:I think, going back to the contract, you're gonna see a lot more provisions and we see them today about whether if the brand is fined or is investigated by the FTC by fault of a group of influencers. I think you're gonna start to see identification provisions and other liability provisions, although I do think that the FTC, without having a whole lot of insight here, has always indicated or sort of hinted at brands should do a better job of educating influencers, and so much. So I do work with quite a few brands on hosting influencer marketing training, particularly around FTC disclosure requirements, do's and don'ts and things of that nature. So I think the onus is always gonna be on the brand. I mean, they can't sort of delegate that obligation off to influencers. But I also think that brands will try to protect themselves from downside with having some shared risk with influencers. If there were ever some sort of regulatory issue with the FTC, how successful they would be with enforcing that. That's yet to be determined, but we'll see.
Speaker 1:And I'm assuming if you're representing an influencer, you wanna strike that from the contract. How can a small business owner like an influencer share the risk with a multi-billion?
Speaker 3:dollar enterprise. That's right, that's right. And so again gets back to reading the contract, getting a professional or someone to sort of say hey, you're taking on more liability If they're gonna only pay you 25,000, which you're taking on a hundred thousand, that would work the risk, that just doesn't make a whole lot of sense to do.
Speaker 1:Yeah, and for those influencers, listening back in the days when I was a B2B salesperson selling technology to Japanese companies, we had a very, very famous Japanese company demand that we basically protect them against any lawsuit.
Speaker 1:And we were a very, very small startup out of a small city in Canada and we walked away from the deal because we could not accept that risk, whereas from the Japanese brand perspective they said, hey, if someone lights a match and we created the match and it blows up a factory, it was so anyway, there's always gonna be divergent opinions and I guess the other thing is it's okay to walk away from a deal. There will be other deals, there will be other opportunities and there will be unreasonable brands out there based on their legal requirements. So I found it refreshing that brands are actually trying to educate influencers on FTC guidelines. My understanding was it would just be a default include in the contract. Influencer must follow FTC guidelines. Do you see a majority of brands doing this? That also happens, yeah, do you see a majority of brands really proactively doing this or is this still relatively new of going out of the way to train?
Speaker 3:I think it's relatively new, and when I say I have a few, it's a handful. Okay, and we do, to your point, include as an exhibit the FTC. We literally print off their social media disclosure packet, which is a really easy read. I highly recommend every influencer to read it and we include that in the contract and you're basically assenting and consenting that you've read it, you understand it, you know what to do and that's just the way for the brand to kind of pass the buck a little bit. But, as we indicated before, the FTC is still gonna come to the brand for answers. They're not compliant.
Speaker 1:Yeah, okay, that PDF, that FTC issue, that's actually required reading in my influence marketing class. It's actually a refreshingly easy read.
Speaker 3:It is an easy read. It comes from the station. I love it. I give FTC. It's a fantastic read and I'm glad that that's part of your reading.
Speaker 1:Yeah, they even revised it to make it easier for influencers to understand, right, a few years later. So let's go into these guidelines and I wanna go into the guidelines before short form video and then it's most recent update, because I think that really raises this compliance to a new level. Makes it really crystal clear in a video. But before the video, so you see these influencers maybe on Instagram paid partnership with maybe hashtag ad sponsored. Is that sort of all they need to do to be compliant or what is missing?
Speaker 3:Yeah, so there are different strategies to think about, right? So if you're thinking about just static images, a post, then, yes, instagram and other platforms have gotten better about. Hey, this appears to be a branded post, paid partnership, and then, yes, hashtag ad is the most popular. The issue, though, is a lot of folks will bury the hashtags, and so one of the requirements is that the disclosure that hashtag ad or hashtag brand partner sponsorship is a disclosure and it shouldn't be buried in a bunch of hashtags. Or, if I have to click the more button to kind of see the rest of the copy, then there's a rule that said it has to be in a conspicuous place, right, it has to be there, and consumers need to be aware that they are being advertised to, right, and so that's whether we wanna categorize it as influencer marketing. It's an advertisement, and consumers need to know that, and so, yeah, that's all you need to do. If you do it right, then there's not a whole lot to do.
Speaker 3:Where the issues are is in video content. That's it, because some folks may jump in a live stream that's a sponsored live and I may miss the first 10 minutes where you gave your disclaimer that this was an advertisement. So at various iterations you have to sort of keep disclosing, and I've seen influencers and brands kind of get very tense about well, how often do we need to do it? Can we make various disclosures? I'm a big fan of putting it on the screen, making sure you say it a couple times. It's not hard to do, it's not hard to do right, and so at that moment in time.
Speaker 3:But that's the video content, I believe, is the biggest struggle. Especially with so many video platforms and streaming platforms. You get caught up in the mojo of just sharing the content that you forget about the disclosure requirements, and so that's where the most of the training is happening. I think most folks have gotten really good about static images and things of that nature, but for kind of burying the disclosure in the content itself, because I've heard influencers say well, folks won't click on it if they know it's an ad or I may lose some engagement. I'd rather lose engagement than to get hit with a five from the FTC or anything of that nature stuff.
Speaker 1:Sure, so very interesting about you know, platforms like LinkedIn. It's very clear you only have a few lines and then you have to click more, right? So obviously more and more brands say, hey, you must mention the, you must disclose, like in the first sentence, you have to yeah, which I guess would help that. That's a best practice, for sure. It's also funny because I've had the same kickback. Well, if I do that, I'm going to lose engagement. But on the other hand, if you're a true influencer and you have a true community and true fans and you're authentic about what you're talking about, that at the end of the day it really shouldn't have that huge of an impact on the results, right? And I'm sure you probably tell influencers the same story, right?
Speaker 3:I agree. Yeah, and you hit the nail on the head, neil. With regards to community, your community is pretty clear about the brands that align with you. If you're not too salesy, you're sharing and adding tremendous value and most of your community probably knows and wants you to get paid for the content and value that you put out there, exactly. So, yeah, I think that's pretty clear. It's just and I see that mainly with newer influencers Like they're really concerned about that. But I think as they go along and build community, they'll get better at putting it out there. But you're spot on, buddy.
Speaker 1:So let's talk about these newest guidelines, which I believe just came out a few weeks ago. So I guess I'd mentioned and I'm sure you agree the FTC is always playing catch up, as businesses are always playing catch up on all this in general as well, and so with the emergence and popularity of TikTok and of Real's and Short's and Short's form video, I guess they had to do something right. So what are these new guidelines and what impact do you think it's gonna have on the industry?
Speaker 3:Yeah, I think. So the main change that we're seeing, obviously, is around still, the disclosures of video, one of the things. I don't think it's gonna change a whole lot. I think also the penalties have changed and increased, and I also think that, to the earlier point, that they may also start looking at civil enforcements for influencers. So to your point about the type of form of content we're starting to see shorter forms of content.
Speaker 3:Where we've always lacked was around the disclosures themselves and some folks, they just don't know when to disclose meals. So well, the guidelines are very general as well. Right, that's right, the guidelines are general. When we think about, well, what's a financial connection? Right, most folks think, well, I didn't get paid for the engagement, so I don't have to disclose it. Well, that's not true. There was some form of consideration, whether it was a free hotel stay or a flight or a meal or something of that nature, that you just have to disclose whether or not they actually written you a check for it. The other thing too, neil, that we see quite a bit is employees that are engaging in, and I think you may have alluded to this earlier.
Speaker 1:I wanted to ask about that specifically.
Speaker 3:Yeah yeah, yeah, because you have to disclose that you actually work for the company. So if you're part of a campaign, whether or not you're using it on an official company social channel or your own social channel, and you're just promoting a program or something, you wanna be able to disclose that and obviously it benefits you that if you're able to help get the word out, it helps your employer and thereby it helps you. So it's important to just understand where the sort of the rules lie and when it comes to promotion and advertisement, everyone is subject to some level of regulatory scrutiny and we just have to understand what that may look like for us individually.
Speaker 1:So with short form video, though with the new regulation there is a requirement now it's not just in the caption. I think this is the first time where the disclosure has to be in as part of the content itself. Correct, that's right. Is it in the first 15 seconds or what is like the exact?
Speaker 3:Yeah, so that part we're still flushing out, and I've had some conversations with some of our friends that work there, because we always sort of said do we have to do it in the beginning?
Speaker 3:My best practice has always been at various intervals. If I know that I'm gonna do an hour show, I may give my disclosure every 10 to 15 minutes, where it's appropriate. Now that can be kind of odd in the sense that it may break the flow a bit, but you have to find a way to provide that disclosure in short form, and in short form it's kind of tough right, because it's short form, so you want to be able to do it right away in a very organic way, but then also in the copy as well. So I'm a big stickler, so if I'm on Instagram and I see an influencer, I'll shoot them a DM and say, hey, are you aware you need to provide these disclosures? And many of them are not. They're just not aware. There's a lot of education and that's why I'm very thankful about the work that you're doing also to kind of help sort of bring some of these issues to light.
Speaker 1:Oh no, it's. I mean, and you're doing an amazing you're, I mean, you are the influencer attorney.
Speaker 1:So your education is in your brand, which is just awesome. So I think we covered a lot today and it's almost like you know, the same reasons that brought that helped influencers create community, are the same reasons why they should be embracing these guidelines, but keeping it real, keeping it transparent and, like you said, I think your fans would love the fact that you're getting paid by this famous brand to work together with them. Right, like like that's awesome, man, keep going. So that's all right. I think we all need, I think a lot of it's the mindset and I think, from the brand perspective, oh, we don't want the influencer to write that because that's gonna, that's gonna kill the performance of the post. I think they also need to understand that the FTC is probably getting smarter and savvier over time about these things and, although they don't, you know, penalize everybody, you don't want to be the one that gets hit with that 10, 20 million dollar. Fine, right, that's right.
Speaker 3:Yeah, so I'll make an example out of someone for sure.
Speaker 1:Awesome. Is there anything else, bobby, that you know about this subject that we haven't covered, or any other advice for influencers that you might have, or brands for that matter? I'm really curious, and you had mentioned the employee. I just see this whole employee advocacy, employer branding, leveraging employees as part of your content. I just think this is a whole Pandora's box because it is, you know, it is influencer marketing and there are not many people doing disclosures outside of maybe the fact they work for the company in their LinkedIn profile, but that's really not a disclosure.
Speaker 2:So would you agree that this?
Speaker 1:whole area that is still uncharted territory, like the Wild West, like pre-COVID influencer marketing?
Speaker 3:It sure is, and I think a lot of it is lack of education on the employer, and I think there's this idea that, hey, my employer asked, so I'm going to do it, without really understanding the full type of behavior that I'm engaging in in terms of actually serving as a digital asset and promoting a product, service or cause. So, yeah, that's really important and I think, you know, just thinking about employment law and some of the other areas of law that sort of raises any good brand should really be thoughtful about what that means and how they engage. There certainly is a way to do it and, you know, once all parties are fully educated and are priced on how to execute on it, it's not that difficult, but it is something that we really need to at least have a conversation around. I'd say, you know, to your question, influencers need to think about this as a business. I think we alluded to this earlier, right, I know that there are quite a few influencers who they don't have a business structure, right, they don't have an LLC, they don't have an EIN, that they're operating as a sole proprietor, and so I typically like to encourage them to think of a business structure that makes the most sense for them.
Speaker 3:In many cases, that is an LLC. They also have no real idea around their IP rights, and so I do a ton of education around what is name imaging like this, and how does that sort of impact you? What are copyrights? Do you need a trademark? And so you know, obviously a lot of my larger influencers like to trademark their name and things of that nature, but that generally applies to anyone.
Speaker 3:If you're an influencer, you're providing a service and you should certainly think about how to protect your IP in a way that makes the most sense for you. And so there's, and you're never too early to protect your IP. And so those are the two things, neil, I would say that you know some influencers really need to give some heart consideration to. I know a lot of brands won't do business with you if you don't have a business structure. I know some that will just treat you as a 1099 and pay you that way. But you know, as a business you gotta hire the videographer, you probably got apparel, you probably got hair and makeup. You probably got some travel expenses. You may wanna write those off at some point in time. So it would be helpful to speak to a CPA and a lawyer about how to get you set up properly in a way that makes the most sense and show that you're successful.
Speaker 1:Yeah, it's gonna lower your taxes and establishing an LLC just immediately that you know Defensive, that, that corporate shield that then protects your personal, fine, it's really a no-brainer.
Speaker 1:It's an overrinder for sure. A few hundred dollars to establish an LLC. It doesn't have to, yeah, cost a lot of money either, so I couldn't agree more. Yeah, I'm gonna throw a curveball you to end this recording, because I recently revised I annually revised this e-book that I write on Maximizing LinkedIn for business, and I noticed when I looked at LinkedIn ads that LinkedIn has a new type of ad, called a thought leader ad, and it's basically, you know, with with Instagram, I suppose, when you have these paid sponsorships and you whitelist an influencer, you can boost their content in your feet as a Brand. So LinkedIn is doing something similar with an employee and the employee apparently does have to approve it. There is some sort of authorization or permission request that goes out through the LinkedIn ad system to the employee, who's often an executive. I'm curious this is still very new, obviously, and you know, if, if I'm an executive and someone in marketing reaches out and says, hey, I'd like to feature your, your LinkedIn post as an ad, should I have a written contract?
Speaker 3:Yeah, yeah, revenor it's so new right now. So so let's think about that, right? If you're working for an employer and the marketing Department asked you to boost the post, that the thing is, you've already given the platform Consent to use your content, but you haven't given another third-party ie the marketing department, ie your employer to use that content, so you're gonna certainly have to give permission and and the. The thorny side is, though, compensation. What is that worth? Right, and from the employer's perspective, it's well, we're already paying you. You know you're being a good corporate citizen, or you know it's that nature, so that one's really, really tough, and I'd hate to be that employee because you want to do the right thing and help your employer. But you know, obviously, if you're a significant, I have clients who have hundreds and thousands of followers on on LinkedIn, and Obviously they do get compensated from their employer for brand reach.
Speaker 3:Good to know and and you know that that is something that certainly happens because it raises the profile of the brand, and most cases when I've seen it most successfully occurs where the thought leader kind of brings this huge brand to the company and as part of sort of negotiations and compensation to say, yes, I'm happy to Elevate the brand using my massive platform on LinkedIn, and here's kind of what that would look like. When I do it, it's better to sort of happen organically that way, opposed to sort of you know the other way around and and it. You know that that sort of makes the discussion a bit more interesting in my opinion. But I have seen clients on the front end sort of take opportunities with brands that didn't have much of a LinkedIn presence and Then sort of come on and really blow the brand up in a meaningful way.
Speaker 1:Yeah, it's. It's really a fascinating topic because there's so much gray area, there's so much evolving and it often deals with the education of both the, the employees, last influencer, slash content creator and or the brand. So, absolutely yeah. We can talk about this for hours, my friend.
Speaker 3:That was definitely a curveball, nielson. Thank you for that.
Speaker 1:You know I started off a little bit slow this morning. It's still early in the morning here, so, hey, I had to throw it back out to you before we break. We did have one question from our audience. As a reminder, my podcast recordings now are being 100% livestream on LinkedIn, facebook and YouTube to give you the opportunity to engage with our guests, but also to get your specific questions answered. So I love when someone takes the opportunity and ask something very, very specific. We have our friend, barry Myers on LinkedIn. Can you discuss usage rights more? How do you define the different uses? I haven't checked out Barry's LinkedIn profile, but he adds we break them into linking, embedding and exerting. Is there anything missing from this? Or how would you describe these usage rights when you're an influencer and you're, you know, doing an Instagram post or you know a tick tock on behalf of a brand? What are the different ways in which brands might be able to use your content? Or from a brand, what are the different things I should ask for in usage rights?
Speaker 3:So love it if you get over the scope of that person very great question and those are some aspects of Usage rights in terms of the whole point is how can I use this content, how can I display it, how can I distribute it right? And that's exactly what that is. It's interesting when we think about also usage rights. It's the reuse of content to. For example, I had a brand that did a massive holiday campaign. They use a limited subset of the content. They wanted to use the rest of the content for the following holiday season. It wasn't very clear whether or not they had usage rights for that upcoming holiday season, and so we want to be very clear about hey, it is only for the 2023 holiday season. Anything beyond that either would require renegotiation or some license Agreement to use the content.
Speaker 3:So, barry, I think the definition of usage rights are spot-on to how you're defining them, but it's also just thinking about how you think about the displaying of the content. In your case, it's embedding, but it also thinks about the distribution of that content. Again, we think about billboards, we think about TV commercials, we think about websites, we think about blog posts, ads, things of that nature. So so usage rights also Extends beyond just thinking about where, but and how do you? How do you display it? And you gotta be super, super clear about that, because every type of usage rights may come with a different price tag, right? So that that is super helpful to know. Going in great question there, fantastic.
Speaker 1:So usage rights, types, locations, timeframes a lot to think about, and I think everybody listening would thank you for really opening up their eyes, both from an influencer and from a grand perspective, as to all the different pitfalls or all the different areas that you really need to look out for. So so, bobby, this has been fantastic. I'm assuming that people, if they want to work with you, can go to Bobby Robinson dot co for more information. Obviously, do a search for Bobby Robinson on LinkedIn. We'll put his LinkedIn profile URL in the show notes as well. Bobby, thank you so much for sharing your time and your expertise with the other.
Speaker 3:Thank you, buddy. Look forward to catching up with you again. So take care, hope to meet a real life one of these days. We'll do. Let's make it happen.
Speaker 1:All right, thanks, man. I had a blast talking with Bobby and going over these issues and you know the original intent of that interview was to look at it more from the influencer perspective, or the content creator perspective, as influential sex to be called today. But it's equally important for the businesses, the brands, for a lot of you that might just be stepping into Influencer marketing, to understand these legalities that exist. So I hope that I was able to serve you in the interview. It's actually interview that I include as part of my curriculum for my influencer marketing class at UCLA extension and, yeah, I'm just so thankful for Bobby and I'm thankful for you. I'm thankful for you for your subscriptions. I'm thankful for you for staying by me when, at the end of the year, there were a few weeks where I was inactive and that was for a reason. But I am back. I have more passion than ever and I just cannot wait to serve you. I'm sort of in continuing to serve you.
Speaker 1:I'm sort of playing catch up. Right now. This is normally once a week. I'm sort of accelerating to a week to get to my 50 podcast episodes a year goal. Obviously, episode 350 is coming next. That should have been at the end of 2023. I'm only two weeks behind. I'm gonna get caught up, but thank you, thank you, thank you. I really appreciate you. I really appreciate all those that have reviewed this podcast, including recently getting some mentions on some stories on Instagram. I always share those stories in my community and I'm just really, really thankful for all of you. So that's it for another episode of this podcast. This is your digital marketing coach, neil Schaefer, signing off.
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