Legal Questions from the Influencers

Posted by Alex Ditty on Apr 6, 2017 4:00:00 PM

In Influencer Marketing

We want to answer your questions on the FTC Guidelines

Together with our sister-site, Snapfluence, we constantly work to elevate influencer marketing from both the brand and influencer perspectives. One important piece of that is helping you understand the influencers and helping the influencers understand the brands.

Just as we work to keep you advised on important industry trends, like adhering to FTC guidelines with our comprehensive ebook, we’re also working to educate the creative community on best practices. This helps them do well and make money, but it also helps to ensure that they are well informed when partnering with you on your next program.

In an effort to keep in touch with the creative community’s concerns, we created a resource to help answer the top questions we hear from them. Today we’re sharing these influencer questions with you here to help you understand their perspectives and concerns.  Send us your questions on influencer marketing and we’ll answer them in a follow-up post!

Influencer Legal FAQs

#1:  Do I have to tell my followers that my post is sponsored?

Short answer: yes.

Longer answer: the FTC regulates advertising, including influencer sponsored content and requires you to disclose any sponsored posting.

Longest answer: Visit “The Art of Covering Your Ass” post for full details on how and why you should properly disclose.

#2: Is it enough to just say “thanks to @brand” or some other phrase like that?

Short answer: Maybe. Depends on whether that makes your relationship to the brand clear.

Longer answer: Here's the key: could there be any confusion amongst your followers as to whether or not your post was sponsored by the brand? You need to work with the brand to determine what FTC disclosures they are comfortable with you using, because, as of now, it’s their name on the line if/when the FTC cracks down.

Longest answer: Visit “The Art of Covering Your Ass” post for full details on how the FTC deems appropriate disclosure language, a few examples of disclosures we’ve seen, and how to talk to your clients about disclosures.

#3 Should I sign away the content rights to a brand?

This is a touchy subject.

The short answer: Maybe.

The longer answer: Depends on the content and the brand.

The longest answer: Not every conversation about content rights is a trap. It’s been our experience that influencers become terrified when a brand asks for copyright exchange on a piece of content created for a campaign. Not every brand is trying to take advantage of you. Brands want to make sure that they are able to use the content they paid for without having to do future work (i.e. reach out to you again for additional permissions) that’s why they always ask for straight-up copyright transfer at the outset. You can usually negotiate an alternative rights exchange if you are concerned. We’ve got a deeper resource on this in the works.

#4 What if someone steals my content and posts it as their own?

Ouch. That’s the worst.

The short answer:  Ask them to give you credit.

The longer answer: Reach out to the offending party and ask them to either give you credit (through tagging and @mentioning you as the creator in the caption) or to remove the post.

The longest answer: That’s easier said than done, right? Try DM’ing them without being too accusatory and asking them to please tag you. You may want to consider placing a “Please ask permission to repost my photos” message in your bio.

In the case of long form content-- especially recipes-- this is especially tricky. We’ve got more advice about those situations coming soon.  

#5 Do I have to declare my income from branded social posts to the IRS? It’s just a side hustle.

Short answer: Yep.

Longer answer: Legally, you need to declare all income to the IRS. If you do a brand deal, the brand will pay you via check or electronic payment (like PayPal) and they will be declaring that payment on their end, so the transaction is recorded and the IRS could easily audit you if you don’t declare the income.

Longest answer: If you earn more than $600 on a brand deal, you should be issued a 1099 from a brand. In some instances, like if you the brand issues payments electronically (via PayPal, etc.), the brand may not be obligated to issue you a 1099, but you still have to report that income as part of your earnings for the year or you could be audited by the IRS. To be safe, record and report every dime you make through influencer marketing, even if it is under the $600 threshold.

#6 Do I need to declare gifts from brands to the IRS?

Short answer: Yes.

Longer answer: Technically in kind compensation is taxable income, falling under the category of bartering income.

Longest answer: If you are receiving products, or a "free” trip, you are supposed to be declaring the value of that gift. In the context of influencer marketing, "gifts" are not really gifts-- there's almost always an expectation that you are providing some sort of service in exchange for the free product. Consequently, this kind of compensation seems to fall under the umbrella of bartering income. To report it, you need to determine the fair market value of the “gift” and declare that. This is why you should never settle for product as the sole form of compensation-- because then you’ll have to pay taxes for it out of your own pocket.