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The New Blogging and Endorsement Guidelines by our Friends at the FTC
I have been tracking this issue for a while, but I wanted to wait until I had a concise and insightful perspective before I blogged about it. So here goes.
In essence, the Federal Trade Commission (FTC) published these guidelines to address what some creative advertisers were doing with blogging and in the social media arena (Facebook, Twitter, etc) (i.e. paying bloggers to endorse their product without the bloggers actually believing in the product or maybe without even using it). The FTC is really focused on the product advertisers, and not bloggers or users, unless the blogger is a sponsored endorser (i.e. receiving something ($, product, etc.) in return for promoting the product). [By the way, the FTC has even stated that they drafted these guidelines not with the intention to sue bloggers, more here -- I thought that was a nice touch]
A definition will help.
An endorser is someone that publishes an:
“…advertising message those consumers are likely to believe reflects the opinion, belief, finding or experience…” of the publisher, but is not the product advertiser.
It is obviously relevant if the person is:
(1) providing an independent review [i.e. off the hook], or
(2) somehow compensated by the advertiser (directly or indirectly).
Examples of sponsored endorsers: paid bloggers, or bloggers that receives many free products.
If there is a sponsored endorser, then the advertiser and the sponsored endorser could have liability for:
(1) false/misleading statements or unsubstantiated statements, and
(2) failure to disclose the connection or any compensation.
One important point here is that the advertiser should require the sponsored endorser to disclose the connection to the advertiser and only publish substantiated claims. The advertiser should also monitor the blogger, as they could still be liable for their unsubstantiated or false claims.
There is a lot more to these guidelines, and I have tried to summarize them here in business terms (not lawyer speak), so talk to your attorney before taking any action under these new guidelines. If you want to read a lot more about it, then go to the source.
Another way to look at this issue, is with a simple Decision Tree:
(1) Is the message an endorsement?
(2) If yes, then:
(a) is it an independent review, or
(b) is there some form of compensation from the product advertiser.
(3) If (b) is yes, then the blogger must disclose the connection to the product advertiser, not make any false claims, and substantiate any representations(the product advertiser should require the blogger to disclose the connection and not make any unsubstantiated or misleading claims).
Of course everyone knows that all messaging should be based on honest beliefs, findings or experiences (that really goes without saying).
As a software licensing attorney, I really think that this is something software and IT based companies should consider as part of their content marketing strategy.
Some more general information is here: link
Who Owns Your Company’s Marketing Content?
As a software copyright attorney, I realize a lot of the new way of marketing is based on becoming a publisher, but some people may not realize that there are important copyright issues in play here, which should be thought through, as they may be counter intuitive.
General Rule – The Creator Owns the Content. The general rule under copyright law is the one who creates the content, owns the content. This is a pretty basic copyright concept, but under closer scrutiny, an interesting issue comes to light when outsourcing content creation.
Exception – Work Made For Hire.
- Content Created by Employees. There is an exception to this general rule, which provides that employees who create content within their scope of employment automatically provide ownership to that content to their employers (i.e. work made for hire), without having to address it in a contract (although IP agreements employees sign when starting work usually clarify this copyright ownership issue).
- Outsourced Content Creation. Here is where it gets more interesting, or fun if you are an attorney. Outsourced content creators (i.e. independent contractors) own the content they create/provide, even though they are fully compensated for the work. This means that the outsourced content creator could (a) sell the content to someone else, or (b) re-use it in another way (remember, they ‘own’ it, and the company that paid for it receives an implied non-exclusive license). This same outcome occurs when hiring an outsourced software developer, architect or professional photographer, so it is really not a new issue at all. The easy way to avoid this problem all together is to designate the services as ‘work made for hire’ in a contract, and along with a lot of other important legal words, transfer the ownership to the company that paid for the content.
- Resources. There are many helpful resources on content ownership issues, so take a look at some of these links:
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