Q: I’m a physique competitor with a growing social media following. How do I legally protect myself as I expand my “brand”?
A: You don’t need to be a celebrity to make money as a social media “influencer.” Many in the strength and fitness community are gaining enough followers to be offered paid endorsement gigs by natural product marketers, sports nutrition companies, and apparel lines. My law firm handles many bodybuilding and fitness matters, and Shannon Montgomery, Esq. – a Bikini competitor and powerlifter herself – handles our social media clients. Shannon and I recently sat down to discuss how influencers can legally protect themselves and their “brand.” Here, we focus on six tips.
1. Form a Business Entity. A business entity – such as a corporation, partnership or limited liability company – requires paperwork (such as bylaws), additional accounting work and tax filings, but it can shield you and your personal assets from liability for things that happen while you’re acting as an influencer (for example, breaching a contract or infringing a trademark, further discussed below). A business entity can ensure that if someone sues you and wins, you won’t lose your home or car.
2. Get Agreements in Writing. It amazes us that so many business deals in the fitness industry are done without contracts spelling out all the terms of the agreement. You should work with a lawyer to understand and even negotiate the terms of the deal, and put it in writing. Everyone may be friends when you shake hands on a deal, but when things take an unexpected bad turn, both sides blame the other. A straightforward written contract can avoid a very costly courtroom battle.
3. Know Who Owns What. If you’re lucky enough to start working as an endorser or brand ambassador, you may start creating content for their social media pages. They’ll want to take ownership of the content that is part of the brand partnership. But can they continue to use your posts – or your image and likeness – after the term of your contract with them ends? Be careful if your contract tries to give them lifetime rights to your name and likeness – or to sell it to others – without any further compensation to you!
4. Protect your Intellectual Property (IP). If you come up with a great name for your fitness business or brand, you’ll want to protect it by securing a trademark with the U.S. Patent and Trademark Office. Trademarks are intended to prevent confusion in the marketplace. Owning a trademark can stop a competitor from trying to capitalize on the success of your brand. It’s not very expensive to do, and typically worthwhile.
5. Don’t Infringe Others’ IP. Before you invest any money into the catchy name you came up with, you’d better be sure you’re allowed to use it. Trademark clearance searches help to find other trademarks that are the same or similar to yours so you know if you can use the name without infringing on somebody else’s trademark. Copyrighted material – for example, a training course – is protected IP and the general rule of thumb is that if you didn’t create it, you cannot use it without the permission of the creator. Using photos that somebody else took – even of food or bulging biceps – can provoke the owner of the photo (usually the photographer) to threaten to sue you (we recommend using a stock photo provider for royalty-free pics). The cost of infringing others’ IP rights can be devastating.
6. Keep Your Posts Legally Compliant. The Federal Trade Commission (FTC) has guidelines for advertising, marketing, and endorsements that apply to social media, and you can face serious penalties for failing to follow the rules.1 The FTC is concerned with consumer protection against false or misleading advertising. If you’re getting compensated for endorsing a product or service on social media – even if it’s only in free product – you need to specify to consumers that you’re a paid endorser and you must follow the FTC guidelines. Using hashtags like “#sponsoredadvertisement” or “paidpartnership” are appropriate especially if paired with a statement within the caption regarding the relationship. The FTC policy clearly indicates that messages (posts, videos, etc.) that are not readily “identifiable as advertising to consumers are deceptive if they mislead consumers into believing they are independent, impartial or not from the sponsoring advertiser itself.” Know the rules!
The path to success as a social media influencer requires planning ahead, but legal protection can save you big later on. If you’re an aspiring influencer needing guidance, reach out to me and Shannon at [email protected].
Rick Collins, Esq., CSCS [https://rickcollins.com/] is the lawyer who members of the bodybuilding community and dietary supplement industry turn to when they need legal help or representation. [© Rick Collins, 2021. All rights reserved. For informational purposes only, not to be construed as legal or medical advice.]
1. You can read them here: https://www.ecfr.gov/cgi-bin/text-idx?SID=701066299822530421fece37367c91d3&mc=true&node=pt16.1.255&rgn=div5