Glenn Eaton – Courtesy RGB Stock

Content marketing is a rich and diverse medium used by marketers for many purposes – brand development, customer education, thought leadership, lead nurturing, and community building among them.

The legal issues created by content marketing are just as diverse and plentiful as the actual strategies. More importantly, the stakes of making a legal error as you execute your content marketing strategy can be high…

The legal issues created by content marketing are just as diverse and plentiful as the actual strategies. More importantly, the stakes of making a legal error as you execute your content marketing strategy can be high since the use of the content is ultimately for some commercial purpose, and its misuse more likely to cause financial consequences. So, as you create your content strategy and source content, it’s vital to understand these issues if you want to avoid embarrassment or, worse, legal action, after publishing.

These are the top three areas of legal compliance to keep top of mind before you market using content.

Intellectual Property Issues

Most marketers intuitively realize that there are intellectual property rights associated with the use of content, and this is true no matter what the form of the content – photographs and illustration, video, audio, or copy. But many are less confident about the specific guidelines to observe to protect IP rights.

Be sure your content team is fluent in these guidelines:

• Publish only content that is original or that you have written permission to publish. All content is the original creation of some person or entity, and is therefore owned by someone. This “owned” content isn’t free for the taking, no matter how easy it is to find. Identify its author, creator, or owner, and get their permission to publish it. Once you do, make sure you attribute it to them (see below). If you can’t identify its owner, don’t publish the content. If you or your employee have created the content, then ownership (and therefore permission) isn’t an issue.

• Obtain rights, in writing, to content created by freelancers or independent contractors. In today’s modern virtual workforce, you can’t assume to own the content you commission, even if you have paid for it, if you acquired it from a freelancer or independent source (anyone not employed by you). If you have used an independent resource, the copyright law requires that you obtain the rights to the content they create, in writing. Doing so also allows you to repurpose that content in multiple ways because you now own it, period.

• Cite proper attribution of any content sourced from, or linked to, from third party resources. Most content sources on the Web are happy to allow their work to be quoted in short-form as long as credit is given to them as the original source, which also demonstrates the editorial integrity of your content marketing practices. They may be less generous in the case of photographic images or video, in which case you will need written authorization for use. In either case – ask permission, document it, and give appropriate credit to whomever owns the work.

• Gather and track licenses and use rights for images or artwork incorporated into your content. There are horror stories out there about well-meaning bloggers who used images found on the Internet for their own purposes, only to face unexpected license fees, money demands, or even lawsuits for copyright infringement. Don’t let this happen to you or your clients. Obtain and keep track of all permissions and licenses for image and artwork use, and know the limits of those licenses. For more specific guidelines on image use, see this helpful article at the PR 20/20 website.

• Make proper use of the trademarks mentioned in your content. Follow brand use guidelines, and make sure to use appropriate disclaimers when using the trademarks of others – especially if your content could in any way be considered comparative advertising. Remember, you’re using the visual identity of other companies and corporations, many of whom monitor the exact manner in which their identities are displayed.

Testimonial Disclosure Requirements

Customer testimonials can be highly persuasive in moving buyers from consideration to purchase. But are these quotes from past customers legitimate if solicited, especially if some form of financial remuneration is given in exchange for the positive review? Keep the following FTC Guidelines on using testimonials in mind while using testimonials:

• If you have received anything of consideration as a content creator (such as a blogger who receives a product for review on your site, or an affiliate marketer), disclose it transparently. This informs the reader so they can adequately evaluate your content and recommendations for neutrality.

• If you are the one providing anything of consideration to a content creator/marketer (like money, sample products for review, tickets to an event or trip), require that the content creator disclose it in their review. This keeps you compliant with the FTC’s disclosure requirements, and provides you some cover in the event the content marketer fails to follow those rules.

• Don’t create content that is in any way misleading or omits any necessary information, the absence of which could confuse the reader. Strong content marketing seeks to be objective and factual – NOT simply advertising fodder. You’ll get more leverage from your content marketing IF you present yourself as a thought leader and brand authority, and not just a very literate salesperson.

Advertising Compliance

As far as the advertising laws are concerned, content marketing IS advertising, since the purpose of content marketing is persuade or sell – even if that’s only an ancillary purpose. What does that mean for the content you’re generating? Largely, it means that “truth in advertising” rules apply. Keep these principles top of mind:

• Make sure all claims made are truthful. If you’re making any claims about your products, or the competitors’ products (such as in a product review), make the facts are verifiable. Consider an objective “fact checker” who can review the content with fresh eyes and call out any questionable claims.

• If you are creating content for sensitive or vulnerable audiences (seniors, special needs, ESPECIALLY kids), use extra caution to make sure the content is clear and not misleading. Confusing content that can have double meanings or imply more than one outcome usually comes across as misleading, and that makes your brand suffer and causes compliance problems.

The “Blur” Between Editorial and Marketing Content

As new opportunities with content marketing become increasingly attractive to media outlets, parties should be careful to respect the line between solely editorial content, sponsored content (created editorial content but “presented by” an advertiser), and native content (sponsor-created content that looks like the editorial format that surrounds it). Admittedly, the line is moving all the time, so stay aware of currently accepted practices.

In most cases, this is more of an ethics issue than a legal issue, but endeavor to stay on the right side of it by demanding appropriately clear disclosures and disclaimers – detailing where content is “content marketing” (ie “provided by,” or “created by” or “presented by” – name the relevant term) vs. editorial content so that the content consumer won’t be confused or feel misled.

Start your content marketing work with these legal compliance issues in mind, and save time, money and legal hassles (and your client relationships) after you publish.

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