How to Lessen the Damage of Demonetization on YouTube

One of the main platforms for content creators to make money is YouTube. YouTube provides a way for content creators to make a profit through the advertisements placed within their YouTube videos. Currently, YouTube partners with Google AdSense to facilitate the ads that play during YouTube video.[1]Specifically, advertisers pay Google AdSense to administer the ads on YouTube, and Google pays a percentage of the ad money back to the publishers of the videos based on the views.[2]For example, for every $100 that an advertiser pays to Google, Google pays $68 to the video publishers.[3]Additionally, the average rate that an advertiser pays per view varies between $0.10 to $0.30.[4]Consequently, in the aggregate, video publishers can make a lot of money on YouTube if they receive a lot of views on their videos. 

However, the one caveat is that YouTube controls the monetization of its videos. YouTube controls this through its advertising algorithm that determines what videos are permitted to earn advertising income through Google AdSense.[5]The algorithm is configured to ensure that advertisers’ ads are only associated with “noncontroversial” content.[6]If a video is deemed to be “controversial” by the YouTube algorithm, it becomes demonetized, meaning that the video publisher no longer receives ad income based on the video’s views. Common examples of videos that often become demonetized are videos that relate to pornography, hate speech, terrorist messages, crime videos, or radical political opinions.[7]

Recently, however, the YouTube algorithm has been slowly expanding. As a result, more and more videos that are usually considered to be “noncontroversial” are being demonetized.[8]YouTube has not publicly given an explanation for this random demonetization, so many “family-friendly” video publishers have been left without income basically overnight.[9]And since YouTube does not seem willing to address this issue in the near future, creators must consider other ways to earn income from their content. Below are some tips to lessen the damage of the sweeping demonetization that may affect your ability to make money on YouTube.

  • Seek Other Ways to Earn Income from Your Content

The most foolproof way to avoid the effects of YouTube demonetization is to become less dependent on YouTube for your income. This does not mean, however, that you need to remove your content from YouTube or stop using YouTube altogether. Instead, use other sources that to earn your primary income. First, seek out affiliate income.[10]This means promoting third-party products on a commission basis, rather than earning a percentage from Google AdSense.[11]You can arrange these opportunities with third-party brands that are likely to already reach out to you because of your YouTube presence. Additionally, you can also earn money from doing product placements, which is where you work with relevant companies to feature their products in your videos.[12]With these avenues, you are working directly with the third-party brands to receive payment, rather than being dependent on YouTube and Google AdSense for a check. Another way to earn income on your own is to create merchandise in connection to your brand.[13]As you grow in prominence on YouTube, you can earn a sizeable income by creating your own line of products to sell to your subscribers.[14]Finally, you can ask your subscribers to donate directly to you! As the YouTube demonetization crisis has gained media attention, some video publishers have created videos to ask their subscribers to donate to them so that they can continue to make content.[15]The main way that video publishers have received donations is by creating a Patreon account, where people can donate to a content creator’s work.[16]

  • Create Your Own Video Streaming Platform

Creating your own video streaming platform may seem like a daunting task, but it does not have to be. There are many websites that offer free assistance in creating video streaming websites so that you can choose what content you want to publish on your site.[17]Under this model, subscribers pay a subscription fee to access your video content. Using your own video streaming platform has many advantages. You have the potential to make more money because there are no “middle men” taking a percentage of your revenue.[18]Additionally, you can enjoy more freedom over the content that you create, which leads to endless possibilities in growing your audience.[19]And although you may create your own video streaming site, you do not need to abandon your channel on YouTube, but rather use it as a marketing tool.

  • Use YouTube as a Marketing Tool

Finally, you can use YouTube for marketing, rather than for income.[20]This is done by creating YouTube videos that serve to invite subscribers to view your offsite content, such as on your standalone video streaming site.[21]For example, you may tease a video on YouTube that includes 40% of your video that then cuts off and encourages subscribers to go to your website to see the rest of the video.[22]This is a powerful marketing tool used by many video publishers, and it both encourages view on YouTube and on your streaming site.[23]There are also many how-to guides on how to maximize your YouTube channel as a marketing tool.[24]

So, in order to avoid the effects of the YouTube demonetization crisis, take control of your content and put yourself in a position where you control your income, not YouTube or Google AdSense. This will allow you to use the best of all platforms to grow your brand in the way that you want.

[1]How Much Money to YouTubers Make? A YouTuber’s Pocket Guide [Calculator], Influencer Marketing Hub (Oct. 15, 2019), https://influencermarketinghub.com/how-much-do-youtubers-make/.

[2]See id.

[3]Id.

[4]Id.

[5]Id.

[6]James Johnson, How to Survive YouTube Demonetization and Continue Making Money from Your Channel, Uscreen (Aug. 08, 2019), https://www.uscreen.tv/blog/how-to-survive-youtube-demonetization/.

[7]Id.

[8]Id.

[9]Id.

[10]Id.

[11]Id.

[12]Id.

[13]Id.;Selling Merchandise from Your Channel,YouTube Creator Academy, https://creatoracademy.youtube.com/page/lesson/merchandise (last visited Dec. 1, 2019).

[14]Id.

[15]Johnson, supra note 6.

[16]Patreon, https://www.patreon.com (last visited Dec. 1, 2019).

[17]Johnson, supra note 6; see Peri Elmokadem, How to Sell Your Videos Online and Make Over $5k a Month (for Real), Uscreen (Oct. 10, 2019), https://www.uscreen.tv/blog/sell-videos-online/.

[18]See id.

[19]Id.

[20]Id.

[21]Id.

[22]See Peri Elmokadem, How to Turn Your YouTube Channel into a VOD Marketing Engine, Uscreen (Aug. 02, 2019), https://www.uscreen.tv/blog/youtube-vod-marketing-funnel-ultimate-guide/.

[23]Id.

[24]Id.

Trademarking Your Merch

A great way to earn supplementary income as a content creator is to create merchandise. Merchandise comes in a multitude of forms, such as branded clothes, accessories, or gadgets.[1]Usually, content creators come out with merchandise once their fan base demonstrates sizable growth. Specifically, content creators often assess factors such as their brand strength, gauge audience engagement, and identify the goals for their merchandise to determine whether they are ready to come out with merchandise.[2]Once a content creator feels ready to do so, he or she begins the process to create merchandise, also known in the social media world as “merch.”[3]The merchandise is not just a plain black sweatshirt; it is usually a sweatshirt with a logo that the content creator creates or a quote that the content creator once said. Consequently, merch is a way for fans to show their admiration for the content creator and wear the merch in solidarity with them. In other words, for fans, it is no different than buying a band t-shirt at a concert.  

However, coming out with merch brings about many potential legal issues regarding how you can protect the merch that you have made. This is most commonly done through a trademark registration for the merch. But you may be wondering, “Do I really need a trademark registration? It sounds complicated and expensive.” The answer is likely yes. So before you create your merch for your Internet fans, read below about how to protect yourself and your brand by pursuing a registered trademark for your merch.

Why Do I Need a Trademark Registration for My Merch?

As you seek to grow your brand as a content creator, a trademark registration is vital to both protect your brand and protect you from legal action. First, a trademark registration protects your brand. A trademark registration legally protects a “word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.”[4]As a result, it prevents another individual or company, with few exceptions, from creating products for sale that use the same word, phrase, symbol or design and provides you with legal recourse if an individual or company does try to replicate your mark.[5]

Additionally, trademark registration protects you, as a content creator, from potential legal action that could arise if you unknowingly or mistakenly use another individual or company’s registered mark. If you never look into registering your mark and never conduct a trademark search to see if any other individuals or companies are using the mark that you intend to use, you could wind up in a lawsuit for trademark infringement without even knowing it! As a result, a trademark registration ensures that you—and only you—are legally permitted to use the mark for your specified purposes.[6]

When Is the Right Time to Register a Trademark?

The first question that may come to mind after deciding to pursue a trademark registration is when to do it. This answer varies based on feasibility and finances, but the first step in this process is determining whether the mark has the potential to receive trademark registration. The easiest way to do this is to conduct a trademark search to see if any other individuals or companies use the same or similar mark. Depending on the scope of your business, you may want to conduct just a federal trademark search, a federal and common law search, or even an international search.[7]By running these searches, you may find out that your idea for your word, logo, design, or symbol is already being used by another company. If so, you likely will not be able to use the mark without potential legal issues. Consequently, before committing to a mark and sinking money into its creation and marketing, make sure to run a trademark search to ensure that the mark is not “confusingly similar,” which is the legal standard for this issue,[8]to any other marks that are already in use.

After you have found a mark that is not confusingly similar to any other marks, the next tip is to file for trademark registration before you begin to use the mark. When you file for trademark registration, the United States Patent and Trademark Office (“USPTO”) allows you to either apply based on the “use in commerce” of the mark or the “intent to use” the mark.[9]As the name suggests, a “use in commerce” application means that you are applying for trademark protection after you have already begun to use the mark in commerce.[10]However, an “intent to use” application allows you to apply for trademark protection when you plan to use the mark in the near future, but have not started to use the mark yet.[11]

An “intent to use” application has many advantages. Although you cannot complete the mark registration process under an “intent to use” application until you submit additional paperwork and fees to the USPTO that proves that you are using your mark in commerce, it gets the ball rolling to receive registration with an earlier filing date.[12]In trademark law, filing dates are incredibly important, as they often govern whose mark has priority when a legal issue arises.[13]Thus, filing an “intent to use” application allows you to begin the trademark registration process without risking having another business register a similar mark while you may be busy getting yours off the ground.[14]

How to Register a Trademark

The final issue is the logistics of how to register a trademark. After conducting a trademark search and verifying that the mark is not confusingly similar to any other marks in use, the next step is to file a trademark application. As discussed above, you may file a “use in commerce” or “intent to use” application. You are not legally required to have an attorney to file a trademark application, however, it is highly advised, even by the USPTO itself, as this area requires expertise to address and prove all of the elements in a trademark application.[15]

The federal application is available on the USPTO’s website: https://www.uspto.gov/trademarks-getting-started/trademark-process#step2. Although there are other trademark applications that you may pursue, the USPTO application is the most common and provides you with federal trademark protection throughout the United States. The USPTO application asks you many biographical questions, as well as questions about your mark, such as the format, the classes in which you would like to file, and the basis for filing.[16]The required filing fee for each trademark application ranges from $225 to $400.[17]It is important to note that even if your mark does not ultimately receive registration, the fee that you must pay to file the application is non-refundable.[18]After you fill out the application, you must submit it online through the Trademark Electronic Application System.[19]

After you submit your application, the USPTO may contact you for more information before making a decision about your application.[20]Additionally, your mark officially becomes public record after you submit the application, meaning that anyone can access your information in connection with the application, including your name, phone number, email address, and mailing address.[21]If you are concerned about this information becoming public record, you may consider creating a separate corporate entity to apply for you, meaning that your individual personal information will not be used. 

Receiving an answer on whether your mark is approved or denied for registration can take anywhere between six months to a year or more, depending on the volume of applications that the USPTO receives at the time.[22]If your mark is approved, the final step is that the USPTO will publish your mark, and you will receive a certificate of registration that serves as proof of your trademark registration.[23]After your mark is registered, you must monitor your mark, as you are required to periodically file additional paperwork to maintain the registration of your mark.[24]

Conclusion

As you can see, the trademark registration process has many steps, but also many advantages. So before you approve the production of your merch, make sure to look into registering a trademark for your merchandise, whether it be a word, logo, symbol, or design. It will protect you and your brand, so that you can provide merch to your fans without any legal drama.

[1]See, e.g., Lesson: Selling Merchandise from Your Channel, Youtube Creator Academy, https://creatoracademy.youtube.com/page/lesson/merchandise#strategies-zippy-link-1 (last visited Nov. 26, 2019). 

[2]See id.

[3]Id.

[4]Protecting Your Trademark: Enhancing Your Rights Through Federal Registration, USPTO, https://www.uspto.gov/sites/default/files/documents/BasicFacts.pdf (last visited Nov. 26, 2019).

[5]Mark Brown, The Importance of Trademarks in Business, Marcaria.com, https://www.marcaria.com/ws/en/articles/the-importance-of-trademarks-in-business (last visited Nov. 26, 2019).

[6]See supra note 3.

[7]3 Types of Trademark Searches, Invention Partner,http://www.inventionpartner.com/trademark-search.html (last visited Nov. 26, 2019).

[8]See 15 U.S.C. § 1052(d).

[9]Jane Haskins, When Is the Right Time to Trademark Your Brand?, LegalZoom, https://www.legalzoom.com/articles/when-is-the-right-time-to-trademark-your-brand (last visited Nov. 26, 2019).

[10]See 15 U.S.C. § 1051(a).

[11]See Trademark Applications – Intent-to-Use (ITU) Basis, USPTO, https://www.uspto.gov/trademarks-application-process/filing-online/intent-use-itu-applications (last visited Nov. 26, 2019).

[12]Id.

[13]Id.

[14]See Haskins, supra note 9.

[15]Trademark Process, USPTO, https://www.uspto.gov/trademarks-getting-started/trademark-process#step1 (last visited Nov. 26, 2019).

[16]Id.

[17]Overview of Trademark Fees, USPTO, https://www.uspto.gov/trademark/fees-payment-information/overview-trademark-fees (last visited Nov. 26, 2019).

[18]Trademark Process, supra note 15.

[19]Id.

[20]Id.

[21]Id.

[22]Id.

[23]Id.

[24]Id.

10 Most Important Tips for Negotiating Influencer Collaboration Agreements

Collaborating with brands is a great way to earn income as a content creator. Collaborations can take many forms, such as a limited edition makeup palette in partnership with a makeup brand, a brand ambassadorship with a fashion company, or even a social media takeover.[1]Many of these opportunities come with standard influencer collaboration agreements that state the contractual terms of the relationship between the brand and the content creator. Many of these terms exist in standard sponsorship agreements with celebrities, but there are also particular things to consider when entering into an influencer agreement as a content creator. In order to best protect your interests as a content creator, here are tips regarding the ten most important terms to consider when negotiating an influencer collaboration agreement:

  • Define All Aspects of the Deliverables

In an influencer collaboration agreement, deliverables refer to the goods or products that the content creator and/or brand must deliver under the contract.[2]Depending on the purpose of the contract, the deliverables can refer to social media posts, tangible products, or public appearances. As a result, a content creator must be aware of the scope and extent of his or her deliverables under the contract. In order to do this, make sure to address and negotiate questions about the deliverables terms, such as: In what form are the deliverables? How often must I communicate the deliverables publicly? How much freedom do I have to choose how I may endorse the good? Are public appearances involved? 

Relatedly, a good influencer agreement must address which party retains creative control over the final product. Creative control refers to the authority to decide what the final product looks like.[3]Many brands require content creators to seek approval of the final product so that the brand can control the outcome.[4]But as a content creator, this can many times hinder your creative freedom. Consequently, make sure to negotiate creative control over the deliverables. It will allow you to express your creativity over your content and control your image. 

  • Compensation as a Percentage, Not a Lump Sum

The compensation structure is arguably the most significant part of an influencer collaboration agreement. Compensation comes in many forms—fixed fees, royalties, free products, incentives, and others—so a content creator must be sure that the terms are well-defined in the contract. For purposes of a collaboration agreement, it is best to receive compensation as a percentage of profits, not a lump sum. A harsh example of this is when YouTube beauty guru NikkieTutorials signed an influencer collaboration agreement with the international makeup brand TooFaced.[5]Under the contract, TooFaced created a limited edition eyeshadow palette with NikkieTutorials, who created and named the shades.[6]Regarding compensation, NikkieTutorials signed a contract wherein she agreed to a lump sum of $50,000 for her role in the creation of the palette.[7]However, it later came out that TooFaced made over $10 million from palette sales.[8]NikkieTutorials received none of those profits.[9]Many people criticized TooFaced’s shady contract, saying that they scammed NikkieTutorials and took advantage of her influence. TooFaced likely knew that NikkieTutorial’s palette would sell big, but it did not want to share the profits. NikkieTutorials later came out and said that she was naïve to sign such a contract, but that she didn’t know any better.[10]

Consequently, this is a cautionary tale for content creators. If a brand is willing to collaborate with you, it likely believes that you have a high level of influence on consumers. As a result, do not allow that influence to be taken advantage of and make sure to receive compensation for a collaboration as a percentage of profits, not a lump sum. 

  • Sometimes It’s Not a Bad Idea to Start with a Shorter Contractual Term

The term of the influencer collaboration agreement refers to the duration of the deal. You must make sure that the term is defined and does not conflict with any other projects that you are doing. But even further, you should also consider pursuing a shorter contractual term if you are just starting out. Of course, a long contractual term provides stability and financial security, but it can also become a prison for a content creator if the contract is not well-negotiated. Consequently, newer content creators who have less negotiating power should consider starting with a shorter contractual term to protect themselves from bad contracts. And if it goes well, you can always renew! 

  • Balance Category Exclusivity with the Contractual Term

Category exclusivity refers to the scope of the collaboration agreement.[11]Many times, a brand wants to ensure that a celebrity is not endorsing any other goods in the same category as the brand.[12]For example, if the brand sells alcoholic beverages, it would want to ensure that the celebrity does not have any other collaboration contracts with alcoholic beverage companies. Usually, this is a pretty standard term in collaboration agreements, and it is one that is hard to negotiate for the content creator. It makes sense that brands do not want their relationship with you to be diluted by other similar companies. But it also cripples you if you want to explore other opportunities in a similar field. Consequently, you can balance these competing interests by negotiating for a shorter contractual term if you are bothered by the category exclusivity provision. This allows you to appease the brand, but also prevent yourself from being pigeonholed for too long. 

  • Protect Your IP at All Costs

Intellectual property rights refer to a party’s right to use a content creator’s name, picture, likeness, logo, artistic work, etc. In the context of standard celebrity contracts, celebrities will usually retain these rights and will grant licenses to the brand.[13]However, since content creators are not always viewed in the same light as celebrities, they are not always given the same courtesy regarding any intellectual property that they have. Consequently, it is vital to negotiate that the rights over the use of your name, likeness, logo, and other works should remain with you. And when you grant a license to a brand, you, as a content creator, should be aware of the nature of the license that you grant to the brand, such as its exclusivity, revocability, and duration. Even further, you should also address who, if anyone, may use your name, likeness, and artistic works after the contract ends.

  • Get Indemnified

Indemnification refers to one party’s protection from liability from the bad actions or inactions of the other party.[14]Although indemnification is common in standard business contracts, it is sometimes left off in influencer collaboration agreements. However, indemnification is very important for content creators! For example, in case the brand is sued for misrepresenting or falsely advertising its products, you, as a content creator, to make sure you will also not be liable for the brand’s bad acts. An indemnification clause would prevent against such a situation, so it is something that you should address and negotiate in an influencer collaboration agreement.

  • Brands Should Cover Promotional Expenses

Promotional expenses are the peripheral expenses that result from carrying out an influencer collaboration agreement.[15]These include the costs of advertisements, banners, prizes, or giveaways related to the collaboration. Usually, the brand will handle the expenses in this category, but you must be sure that the contract clearly states that you are not stuck with any of these costs. Not only do brands have the funds to cover these expenses, they also have the expertise and resources to carry out the promotions that relate to the collaboration.

  • Narrow the Language about Breaches as Much as Possible

Breach provisions enumerate when a party violates the endorsement contract.[16]You must look over these provisions to make sure that you do not end up in breach. Often, these provisions include a morality clause, which states that a content creator is in breach of the contract if he or she engages in “immoral behavior.” You must make sure that this clause is drafted narrowly, as content creators are often unfairly scrutinized more heavily than laypeople about their behavior. And given that your presence is exclusively on social media, issues that arise from scrutiny from your audience or the Internet is even more salient.

  • Beware of Non-Competes

A non-compete clause prevents a content creator from endorsing similar goods for a period of time after the influencer collaboration agreement ends.[17]A brand may want to broadly restrict a content creator from endorsing similar goods for a long period of time after the contract ends, so you should make sure to watch out for any language that would do so and try to negotiate for a narrower non-compete clause to keep themselves open to other opportunities.

  • Don’t Be Afraid to Negotiate

Finally, don’t be afraid to negotiate! Content creators often feel that they do not have the legitimacy that other celebrities do, but this is definitely not the case. Our society is shifting rapidly towards social media, so social media-based creators are becoming increasingly influential over consumers. As a matter of fact, celebrities that are not transitioning to social media are arguably becoming stale and irrelevant. Consequently, don’t feel like you don’t have a stake in the game. Brands want to work with you for a reason. You have influence. Use that to your advantage to negotiate for terms that are important to you.

[1]See, e.g., Jacquelyn, 10 Ways Fashion Brands Can Work with Influencers, Scrunch, https://www.scrunch.com/blog/11-ways-fashion-brands-can-work-with-influencers (last visited Nov. 20, 2019).

[2]Kevin Cornell, Brand Sponsorship & Endorsement Agreements for Artists, TuneCore (June 25, 2018), https://www.tunecore.com/blog/2018/06/brand-sponsorship-endorsement-agreements-for-artists-part-1.html.

[3]John Spacey, 5 Examples of Creative Control, Simplicable (Mar. 13, 2017), https://simplicable.com/new/creative-control.

[4]Influencer Agreements: Everything You Need to Know, MediaKix, https://mediakix.com/blog/crafting-the-perfect-influencer-agreement/ (last visited Nov. 20, 2019).

[5]Kat Tenbarge, Makeup Youtuber Nikkie Tutorials Explained Why She Took a Deal for Only $50K for Her Too Faced Collaboration After Jeffree Star Said She Took ‘Dirt,’ INSIDER (Oct. 6, 2019, 10:50 AM), https://www.insider.com/nikkie-tutorials-50k-too-faced-contract-palette-dawson-jeffree-star-2019-10.

[6]Id.

[7]Id.

[8]Id.

[9]Id.

[10]Id.

[11]Anthony R. Caruso, Five Cautionary Steps When Signing an Endorsement Deal, Scarinci Hollenbeck (Apr. 11, 2017), https://scarincihollenbeck.com/law-firm-insights/entertainment-and-sports/signing-an-endorsement-deal/.

[12]Id.

[13]Cornell, supra note 2.

[14]Caruso, supra note 11.

[15]See Cornell, supra note 2.

[16]See Caruso, supra note 11.

[17]Cornell, supra note 2.

Navigating FTC Disclosure Guidelines for Sponsored Posts

As you grow as a content creator, a common goal is to obtain sponsorship deals with various companies. Sponsorships are a great way to earn money for your content and grow your audience. Sponsorships can be for anything, such as hair vitamins, apps, or dental work. 

Sponsorships, however, also come with a host of responsibilities. With a sponsorship, you are associating your name with a product, which always comes with potential risk. To mitigate this risk, the Federal Trade Commission (“FTC”) requires content creators to make certain disclosures when making sponsored posts on their social media accounts.[1]Failure to comply with the FTC disclosure rules could cause a content creator to end up with an enforcement action from the FTC. Consequences could include a permanent injunction against the content creator to refrain from engaging in sponsored content in the future and disgorgement of profits from undisclosed sponsorships.[2]Recently, the FTC has cracked down on content creators who do not follow the disclosure rules, sending warning letters to many well-known content creators, such as Victoria Beckham, Heidi Klum, and Scott Disick.[3]

Even further, according to a study by Activate entitled “2018 State of Influencer Marketing,” only 52% of influencers and 60% of marketers have a solid understanding of the FTC guidelines for sponsored posts.[4]Additionally, only 56% of influencers and 31% of marketers could correctly identify how to disclose a free product gifted to a content creator.[5]As a result, here is what you need to disclose when posting sponsored content in order to avoid any FTC violations:

  • The FTC Guidelines Include More Than Paid Sponsorships.

A common misconception is that if there is no monetary exchange between a content creator and a brand for a sponsored post, the content creator does not need to disclose anything. This is false! The FTC Guidelines state that when there is a “material connection” between the brand and the content creator that “might materially affect the weight or credibility of the endorsement,” it has to be fully disclosed.[6]This means that if a brand sends its products to a content creator for free only in exchange for coverage on the content creator’s social media accounts, this should still be disclosed.[7]Although the brand is not paying the content creator for the coverage, the fact that the product was given to the content creator for free might affect how the audience views what the content creator has to say about the product.[8]Consequently, it is better to be safe rather than sorry when posting about products that you did not buy as an individual consumer.

  • Be Clear and Conspicuous in Your Disclosures.

Next, there are requirements about what exactly content creators need to say in sponsored posts.  The FTC states that a disclosure must be “clear[] and conspicuous[].”[9]In the context of social media posts, this means that the disclosure must be clearly stated in the caption of the post, brands should be tagged in the post if the social media platform allows for it, and/or hashtags on the post should use the words “ad” or “sponsored.”[10]Additionally, the disclosure language should be easy to find, meaning that it should not be in buried in the middle of a large hashtag list or should not be visible only if the reader clicks “more” on the caption.[11]To be safe, the disclosure language should be at the beginning of the caption.[12]

  • You Must Be a “Bona Fide” User of the Product.

In order to post sponsored content, a content creator must ensure that he or she has actually used the product that they are advertising. Specifically, the FTC states that when a content creator (also referred to as an endorser) posts about a product, “the endorser must have been a bona fide user of it at the time the endorsement was given.”[13]Additionally, the sponsored content can only be public as long as there is a “good reason to believe that the endorser remains a bona fide user of the product.”[14]The FTC explains that a “good reason to believe” can be that the endorser reaffirms his or her views on the product “at reasonable intervals where reasonableness will be determined by such factors as new information on the performance or effectiveness of the product, a material alteration in the product, changes in the performance of competitors’ products, and the advertiser’s contract commitments.”[15]

In other words, content creators must only advertise products that they have personally used and currently endorse. Additionally, as the FTC implies, this is not a one-time inquiry. Content creators who post sponsored content should periodically reassess whether they still hold the same views for products that they have posted about in the past, depending on factors such as changes or new information regarding the product.

  • Utilize Disclosure Tools, Even Though They May Not Always Be Sufficient.

Finally, social media platforms have made it easier to comply with FTC guidelines by creating disclosure tools for sponsored posts. These disclosure tools on platforms such as Instagram, Facebook, and YouTube allow content creators to easily create posts that tag the sponsoring brands.[16]However, these disclosure tools are not always sufficient to fully comply with the FTC Guidelines. Recently, the FTC stated that users should not “assume that disclosures built into platforms are sufficient.”[17]Consequently, content creators should not only incorporate disclosure tools into their disclosure routine, but should also take additional precautions to clearly and conspicuously notify consumers that the post is sponsored. A combination of multiple disclosure methods can ensure that content creators cover their bases to safely comply with the FTC Guidelines.

[1]See 16 C.F.R. § 255.

[2]See This Just in: FTC Takes Action Against Influencers, Marketers Over Sponsored Posts, Fashion L. (Apr. 19, 2017), https://www.thefashionlaw.com/home/this-just-in-ftc-takes-action-against-influencers-marketers-over-sponsored-posts.

[3]Id.

[4]See Amanda Pressner Kreuser, Here’s Exactly How Brands and Influencers Should Disclose Sponsored Content, Inc. (Sept. 27, 2018), https://www.inc.com/amanda-pressner-kreuser/heres-exactly-how-brands-influencers-should-disclose-sponsored-content.html.

[5]Id.

[6]16 C.F.R. § 255.5.

[7]See Krueser, supra note 4.

[8]The FTC’s Endorsement Guides: What People Are Asking, Fed. Trade Comm’n (Sept. 2017), https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking.

[9]16 C.F.R. § 255.5.

[10]See id. (referencing examples).

[11]Krueser, supra note 4.

[12]Id.

[13]16 C.F.R. § 255.1(c).

[14]Id.

[15]Id.§ 255.1(b).

[16]Krueser, supra note 4.

[17]@FTC, Twitter (Sept. 20, 2017, 04:17 PM), https://twitter.com/FTC/status/910598716062650374.

Legally Using Music in the Background of Your Social Media Videos

A common part of your life as a content creator is likely the creation of online videos on social media platforms, such as YouTube or Instagram. The videos may be for a multitude of reasons: to showcase a product, to show off your style, or just to demonstrate your creativity. So when it comes time to edit your video and publish it to a social media platform, you may want to add snippets of Rihanna singing “Pon De Replay” in in the background of the video to make it pop. For marketing purposes, this is a great idea, as it will likely increase the engagement for your videos. But when it comes to the legality of using other another artist’s music in the background of your videos, you must make sure that you are adhering to copyright law. If not, you could be liable for copyright infringement. So before publishing that next style lookbook video with “Bad Guy” by Billie Eilish playing in the background, here are some tips on using music in your social media videos

  • If possible, get permission from the copyright holder of the song.

The easiest way to ensure that you are adhering to copyright law when using another artist’s music in your video is to ask for permission. Specifically, you should seek a license to play the song. There are two licenses that you should seek in order to legally play another artist’s song: a synchronization license and a master license. A synchronization license gives you permission to synchronize the song with a visual media output, such as a video.[1]The publisher of the song often administers the synchronization license.[2]The identity of the publisher can vary tremendously, as it can be a large corporation that publishes music or an individual artist that publishes his or her own work.[3]

A master license gives you permission to play the specific recording of the song in question.[4]Again, the holder of the master can vary from a record label to an individual artist.[5]If you would like to search for the publisher and master holder of a particular song, you can use the websites below.

If you are starting out as a content creator, obtaining a license from an artist may be difficult to accomplish because licenses can be expensive.[6]If you don’t have the budget to pay for a license, try to use music from lesser-known, local artists! You can promote independent music while obtaining a license in a more cost-effective way.[7]The local artists also have an incentive to work with you and allow you to succeed because your videos will be a platform for their music to reach larger audiences.[8]

But regardless of what music you decide to use, always remember to give credit to the artist! Although giving credit alone is not sufficient to avoid copyright issues, it is always good practice when using another artist’s music. 

  • The doctrine of fair use is not a very wide shield.

You may have heard that if you use only 30 seconds of a song in a video, it is legal because it is covered under the doctrine of fair use.[9]However, this is not always true! The doctrine of fair use states that the reproduction of a work “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.”[10]To determine whether the use of a work is a fair use, courts analyze four factors: “(1) the purpose and character of the use, including whether such use is a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”[11]Consequently, courts determine whether the use of music is fair use on a case-by-case basis using the factors above.[12]There is no clear-cut 30 second rule. 

When using copyrighted music in a social media video, it often may not satisfy the four factors listed above. Specifically, if you plan to be a content creator as a full-time job, you will likely be using social media videos to make money. Often, this occurs through videos that advertise a product and are sponsored by a brand.[13]When doing a sponsored video, a content creator almost always makes a profit from the video, meaning that the use of the music in the background of the video is commercial in character, rather than educational. If, however, you choose to create social media videos as a hobby, you may have a better argument that the use of the music is for education or social commentary, both of which are valid fair use purposes.[14]But as described above, the fair use analysis is determined on a case-by-case basis, so it is nearly impossible to determine whether you will succeed in a potential copyright infringement claim when arguing fair use. And as the lines between commercial and creative are becoming increasingly blurred on social media platforms like Instagram and YouTube, it is safer to avoid relying on the doctrine of fair use to use copyrighted music.

  • Use risk-free music, like music in the public domain or your own music.

The best way to avoid any copyright issues when using music in the background of social media videos is to use risk-free music. The first example of risk-free music is music that exists in the public domain. The public domain is a collection of works that are freely available for reproduction because the copyrights on them have expired.[15]

However, a few words of caution when using music in the public domain. First, remember that the use of music in the background of a video affects two different types of reproduction: the synchronization of a song with a video and the replaying of the master recording. In order to avoid any copyright issues, the synchronization and the replaying of the master recording must both be in the public domain. For example, Beethoven’s Fifth Symphony is a song that is in the public domain, so it would satisfy the synchronization aspect of the reproduction.[16]However, if you use a recording of Beethoven’s Fifth Symphony from an orchestra that performed the song last year, the recording of that song is likely still protected by copyright.[17]Second, be aware that the rate at which copyrights expire varies from country to country, so make sure to do your research when using music that was copyrighted in another country.[18]

Another way that you can avoid copyright issues is to use your own music! And with technology now, making music is not just for the musically inclined. There are many websites, apps, and downloads that can help you create your own music for free. Below are some examples:

But remember, if you choose to make your own music, make sure to register your copyright for your music as soon as possible!

[1]Mik, How to Legally Use Copyrighted Music in Your Marketing Video, Miks Music (Apr. 1, 2014), https://www.miksmusic.com/how-to-legally-use-copyrighted-background-music-in-video/;What Is a Sychronization License?, Easy Song Licensing,https://www.easysonglicensing.com/pages/help/articles/music-licensing/what-is-a-synchronization-license.aspx (last visited Nov. 3, 2019); The Legalities of Using Music in Your Online Videos, Sproutvideo, https://sproutvideo.com/blog/the-legalities-of-using-music-in-your-online-videos.html#close (last visited Nov. 3, 2019).

[2]See supra note 1.

[3]See supra note 1.

[4]See supra note 1.

[5]See supra note 1.

[6]Kelly F. O’Donnell, Copyright Licensing: Ignorance is Expensive, Pullman & Comley (Apr. 19, 2016), https://www.pullcom.com/newsroom-publications-Copyright-Licensing-Ignorance-is-Expensive.

[7]The Legalities of Using Music in Your Online Videos, supra note 1.

[8]Id.

[9]Scott Shpak, Copyright Laws for 30 Seconds of Music, Chron (Mar. 5, 2019), https://smallbusiness.chron.com/copyright-laws-30-seconds-music-61149.html.

[10]17 U.S.C. § 107 (2018).

[11]Id.

[12]Shpak, supra note 9.

[13]See Johanne Eliasson, Succeeding with Sponsored Video on Social Media, Native Advert. Inst., https://nativeadvertisinginstitute.com/blog/sponsored-video-social-media/ (last visited Nov. 3, 2019).

[14]See 17 U.S.C. § 107.

[15]Welcome to the Public Domain, Stanford Univ. Libr., https://fairuse.stanford.edu/overview/public-domain/welcome/ (last visited Nov. 3, 2019).

[16]Shpak, supra note 9.

[17]Id.

[18]See, e.g., Katarzyna Strycharz, Public Domain: Why It is Not that Simple in Europe, Communia (Jan. 26, 2016), https://medium.com/copyright-untangled/public-domain-why-it-is-not-that-simple-in-europe-1a049ce81499.

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