When a person, brand, or organization creates its own platform to share and influence, a content marketing initiative is born.

This practice has been going on long before digital capabilities made it as accessible and mainstream as it is today.

It’s also these digital aspects that make it all that more complex for the modern marketer and the agencies driving the ecosystem.

• Who (or what robot) is creating your content?
• Who is the rightful owner of the content and the intellectual property inside it?
• Where and how is this content being distributed?
• Are the laws relevant to the content being followed (or do we even know what those are?)

As a content creator myself, through a variety of media including blogging, video, podcasts, newsletters, and more, I understand the level of detail that can go into each and every project. It’s a big investment of time, talent and treasure, and that’s why it’s worth protecting at every corner.

For my clients, I’ve seen legal hiccups at virtually every link along this chain, with rising complexities around content ownership and licensing, and emerging risks with more automated content solutions and accountability. 

If you break down the process you’ll find there are various, and unique, legal issues at each phase that can get in the way of progress. My strategy to beat them? Plan ahead.

Here are three key junctures with reminders to help keep your content marketing campaigns secure:

1. Strategy, Talent & Content Sources

Before the first word is written, or pixel is placed, think about your end goals. In addition to the brand building and sales nurturing aspects, content marketing offers the opportunity of creating intellectual property for your agency and clients, including in both the outputs and processes.

• For client work, is this something your agency will own and use in the future, or for new business pitches, or will your client own all rights?
• Are you creating content in-house, using outside partners, freelancers or partners, or possibly integrating external, more automated and AI-driven content services?

In some cases, your agency will want to ensure you own the rights to your work so you have complete freedom in the future for promotions, repurposing and other applications. At a minimum, your agency will want the right to display some of this work later in its promotional portfolio.

In my earlier post, Content Marketing Done Right(s) – Start Here: Legal Compliance Issues Content Marketers Need to Understand I encourage agencies to have a standard Independent Contractor Agreement, or Strategic Partner Agreement template ready and on-hand to execute for every project or campaign. When utilizing more virtual means of support or software, I recommend legal review with your counsel for the contracts and any terms of use.

For your agency’s content strategy and execution, ensure the same levels of agreements are in place for any partners or employees creating content on behalf of your agency.

2. Content Development

Beyond the clear copyright rules and plagiarism risks surrounding content creation, there are several less obvious aspects that agencies need to watch out for:   

• When featuring any other existing content, first get written permission from whomever owns the content (you would be surprised how often this step is skipped), and then cite proper attribution of any content sourced from, or linked to, from third party resources.
• Gather and track licenses and use rights for images or artwork incorporated into your content and know the limits of those licenses.
• When making claims within content, in addition to being true, claims need substantiation. Misleading by omission is just as off-limits as making an express false claim. Ask your clients about the substantiation before you publish the claim.
  
• Include all needed trademarks with permission, or with adequate disclaimers if they are the trademarks of some third party.

There are many resources out there for education and reference, including this Skyword article, Original and Accountable: How to Detect Plagiarism, and Avoid It in Content Marketing. What’s key is making sure everyone involved keeps a vigilant eye on this, because agencies and clients can share the liability and responsibility for an infraction.

3. Publishing, Distribution & Promotion

There are various considerations and rules surrounding content of all types that your agency is publishing and promoting on behalf of your clients.

A few of the main topics I cover in my post, Three Rising Legal Risks in Content Marketing and Social Media for Agencies, include:

• Copyright infringement or the use of content without permission or improper attribution (see part 1 for securing rights)
  
• Compliance failures in disclosures of endorsements, testimonials and all things influence marketing.
  
• Native advertising or failing to distinguish clearly between paid content placed in a native ad context and the surrounding editorial content. Confused about what’s what here? Check out Robert Rose’s overview on Content Marketing Institute: What’s the Difference Between Content Marketing, Branded Content, and Native Advertising?

Additionally, email and data privacy rules continue to reign, brought to the spotlight more recently in GDPR and the California Consumer Privacy Act, but always there (remember the CAN-SPAM act of 2003?) No one should be using purchased or rented lists for email, or relying on the “opt out” at inception as law favors the initial “opt in,” and making sure that “opt outs” are managed properly.

To summarize, wherever your content is going…make sure the destination is legit!

Send the Right Message

With the massive flood of content pouring through digital channels for more than a decade, and more and quicker ways to produce and distribute it, agencies continue to seek ways to get their messages through in an overly crowded environment.

Take the time to educate yourself, your employees, and everyone else in your content universe on the legal risks at each step of the content journey, and stay on top of evolving rules and regulations.

Make sure that the content flowing in and out of your agency isn’t being consumed for the wrong reason; as the subject of a legal action.

Want to continue the discussion? Join me this September at Content Marketing World, Cleveland, Ohio (Sept. 3-6). I’m presenting in the Agency Strategies Track, Whose Lawsuit is It, Anyway? How Your Agency Can Get Sued With its Client, and How to Avoid It. Check out the inspiration behind this session in my post on the topic.