Legal Tips for
For many small business owners, solopreneurs, and freelance creatives, content is key. Creating content. Sourcing content. Distributing content. We find ourselves spending a good chunk of our time focused on these activities because, at the end of the day, it drives awareness and brings us business.
What we don’t often think about are the legal risks that come with creating and posting content. Many creators don’t even realize that there’s risk involved in these activities.
Here’s some information to help you avoid trouble when creating content in 2024.
Using content created by others
Using content created by someone else is risky. Just ask the handful of celebrities who have been sued for sharing photos of themselves.
If you didn’t create the content, someone else owns it. And using it without their consent could lead to a takedown notice, or even a lawsuit. However, using others content may be appropriate in certain situations.
For example, if you obtain a license (i.e., consent) to use such content directly from the individual who holds the copyright or from a content distributor who gives you permission to use a library of content (e.g., Canva, Adobe, Pixabay). Sometimes creators will make their content available for use under a creative commons license.
Creators can also use other’s content under the fair use exception to copyright law. Fair use allows for the use of limited amounts of copyrighted material without permission from the owner, if such material is being used for parody, news reporting, educational use, and a few other limited purposes.
However, creators have to be careful about claiming the fair use exception. At the end of the day, fair use can only be proven in court. So claiming this exception may lead to a legal battle even if you’re using it appropriately.
In the end, be careful about using content created by others. My rule of thumb is ‘when in doubt, don’t.’
Using other people’s name, image or likeness
One way popular way of drawing attention to content is to mention a celebrity. But creators have to be careful about how they use the name, image or likeness of famous individuals.
Public figures have publicity rights, which allow them to prevent others from using their name, image and likeness for commercial purposes. The extent of these rights vary from state to state. However, as a rule of thumb it is a bad idea to use the a celebrities name, image or likeness in connection with the promotion of your product or service without their prior written permission.
Using AI Generated Content
AI is changing the way content is created by allowing businesses to automate tasks that previously performed by human-beings. Tasks like writing, creating images, and video post production, can all be completed using AI tools.
For freelance creators and solopreneurs in particular, AI is a game-changer because it multiplies our capabilities and evens the playing field to a degree. However, using AI to create content comes with a new set of legal risks.
The key legal issue when it comes to AI created content is ownership. Because AI is so new, it’s not clear who owns the content that it is used to create.
Is it the individuals who created the written work, images, and other material that was used to train the AI? Is the content owned by the person who prompted the AI program the owner? Or is the content completely ineligible for copyright protection?
The US Copyright office currently holds the policy that content created solely by an AI program is not eligible for copyright protection. However, where AI plays more of an assisting role, such that what is expressed in the content was essentially conceived by a human author, the content may be eligible for copyright protection. (See US Copyright Office Guidance)
At the end of the day, if you want to be able to claim copyright ownership over your content, be careful about how you utilize AI in your creative process.
Making claims about your product or service
Making false or inaccurate claims publicly can lead to a lawsuit or fines from the government. Entrepreneurs have to be careful about the claims made on their websites, social media pages, and marketing materials. If you’re going to make claims about your products or services in your content, there are two things you have to keep in mind.
First, make sure you are aware of what claims you can and cannot legally make about your product or service. For example, if you sell dietary supplements there are restrictions on how you can advertise the benefits of your product.
Second, when making claims about your product or service’s capabilities, you may be creating an implied warranty. An implied warranty is a guarantee that a product or service meets a certain standard, that may be assumed from the context in which the product or service is presented. For example, if a business claims that their t-shirt’s utilize a technology that will keep you cool under any circumstances, they may be creating an implied warranty that the consumer can use to request a refund if the t-shirt doesn’t perform as promised.
If you’re going to make claims about your product, make sure that they are accurate, and backed up by objective data. Be sure to understand the industry specific regulations that may restrict your ability to make certain claims. And make sure you product customers with a contract or terms and conditions that clarify your policy regarding warranties and company liability.
Clarify who owns the content in writing
When it comes to creating content collaboratively, ownership is a key issue that should be explicitly addressed in every situation. When you create original content on your own, you own it. Simple. But when you create content with or for someone else, things can get tricky.
As a general rule, whoever creates the content owns it. So when two or more people collaborate to produce a creative work, they own it collectively. Each of them has equal right to publish, create derivatives, and license the work to others unless there is an agreement stating otherwise. This can be problematic, especially if you want to have control over how and when the content is shared publicly.
So if you are creating content collaboratively, make sure you have a written contract that specifies who owns the content. And if it is owned jointly, how and when is each party allowed to share it.
Your brand is one of the most important piece of intellectual property that your business owns. When collaborating with others to produce content, you may give them permission (i.e., a license) to use certain elements of your brand for the project. Generally speaking, it’s a good idea to place limitations on how they can use your brand in these circumstances. If you don’t, two things can happen.
First, the other business may use your trademark in a way that harms for brand. For example, they may use it in connection with a product, service or individual with a poor reputation, causing damage to your own reputation.
But a bigger issue is naked licensing. Naked licensing occurs when someone others to utilize their trademark without any restrictions on how it is used. For businesses that have a federally registered trademark, naked licensing can lead to the loss of their trademark rights through cancellation or abandonment.
Therefore, it is important to place restrictions and monitor the used of your trademarks when partnering with other brands.
Disclose sponsored content
Content creators are required to properly disclose when they are sharing content that they were paid for. While many assume this rule comes from the social media platforms, it’s actually a requirement enforced by the Federal Trade Commission.
The FTC makes it clear in their guidance that those who endorse a product through social media are should make it obvious when they have a “material connection” to the brand they’re endorsing. In addition to financial benefits, a material connection can also include situations where a personal, family, or employment relationship exists. Check out the FTC’s guide on the topic to see if you’re compliant with applicable disclosure requirements.
Legally Protecting Yourself as a Content Creator
If you’re a content creator, it’s vital that you understand the legal implications that accompany your work. One mistake could create a lawsuit that destroys your business. The key to protecting yourself is awareness. When you’re aware of the risks, you can prepare a strategy to avoid them.
MZA Legal is here to help creative entrepreneurs protect and grow their business. We’ve helped hundreds of business owners and side hustlers set a solid foundation for their business so that they’re always ready to take on new opportunities. If you’re feeling uneasy about the state of your business, give us a call or schedule a free 10-minute discovery call to see how we can support you on your entrepreneurial journey.