My company provides tweets and Facebook posts that are customized to the small businesses niche. I hire freelance writers to create the posts then provide them to the client for them to use. To gain an understand of the clients business the writers studies the clients website and ask them to complete a questionnaire. They get the final say on what to post to Facebook & Twitter. I am wondering if I have any legal liability in this? I check all of the posts against copyscape prior to submission.
Social media marketing agency. Got it. Based on the facts you provided, I suggest a well drafted creatieve services independent contractor agreement with your writers, which includes copyright provisions, limits your liability, and you may even consider a non-solicitation clause to make it hard for your writers to work around you and directly with the client.
In addition, a second agreement, your standard Social Media Marketing Agency Contract, will be of enormous benefit to you in governing your relationship with your paying clients. This is the agreement all your clients must sign before you get started and will specify intellectual property ownership, limited liability (for you), payment terms, the length of the contract and grounds for termination, the customer's obligations during the engagement, and other terms important to this type of agency relationship.
As for potential legal liability for this, I don't think the legal due diligence here is overly prohibitive. As with any business venture, a standard set of legal tasks are required, or well advised. In this case, let's you have pizza shop client, and one of your writers is copyright social media updates from Domino's Pizza twitter feed and posting them on behalf of your client? Without adequate contracts and legal procedures in those contracts (above), your client would look to you for recourse if and when Domino's Pizza sues your client for copyright and trademark infringement. In another case, let's say your writer offers FREE PIZZA FRIDAYS for your client, but your client did not intend that and now there are 100 people at his pizza shop looking for a free pizza. Someone has to pay for this... will it be you, your client, or the writer? And since you're in the marketing and promotions industry, let's say your client instructs you to promote a new pill that promises to help users "Lose 50lbs in 1 month", and your writer blasts social media with this offer and claim. If this is a false claim, the client is sued by the FTC (Federal Trade Commission) for false and deceptive advertising, unless you have specific language absolving your agency from liability or passing it on to your client, then the FTC may sue your firm as well for publishing the false ads.
Of course many other legal issues can arise, but I think the 2 contracts mentioned above are ideal legal tools for you to some extent control your legal exposure vis a vis your clients and your writers. I've handled many of these contracts from the agency and client side. If you have any questions about legal issues for this venture, feel free to contact my office.
You must consider legal issues pertaining to business entity formation and operation, online marketing, use of independent contractors (freelancers), branding and copyright protection, customer contracts, and many other smaller matters. You should confer with a business and/or internet lawyer who has experience working with online companies. I would be happy to discuss this venture with you.
In my experience with companies in this space, you are going to need intellectual property counsel on speed dial---issues are going to arise every day and you will not have a lot of time to deal with them before the fury of the aggrieved party takes your breath away with complaints, law suits, etc. That is why most social media marketing firms that survive beyond a few months usually have either in-house counsel (some times several in-house counsel), or a relationship with outside counsel who you retain on some kind of monthly fee arrangement and who is responsible for dealing with your day to day issues. There is no substitute in a situation like this for having an ongoing, constructive relationship with trusted legal counsel.
Are You Planning on Opening a New Website?
Below is a checklist for legal issues I use for new e-commerce clients.
1. Busines entity - Are you going to be a C corp, an LLC or a sole proprietorship?
2. Terms of Service - This is your contract with your visitors and is the most important item for any e-commerce site. A little work here brings big dividends in the future.
4. FTC guidlines - The FTC has been regulating business advertising for almost a century. All of their advertising guidlines apply to e-commerce sites.
5. Trademark - Start with a commmon law trademark "TM" and register your mark if you are successful.
6. Copyright - If it is on the web, it already belongs to somebody. Did you buy a license for the images you are using? Do you have a DMCA notice on your web site?
7. Do you need and have an EIN? You can get that for free.
8. Do you have employees? - If so you need written policies regarding their authority and use of the internet.
9. Do you know the difference between a "browser wrap" and a "click wrap" and which do you need?
When I discuss this list with clients other issues arise. Finally, I always discuss with my clients their need for good accounting services. An accountant's advice as you start up can save you many dollars in tax that you might not save if you wait to speak to an accountant until your first tax return is due.
I hope this list will give you pause to think about those issues for which you might need to seek professional advice.
Please feel free to contact me concerning your issues (No Charge.) I also offer a new client special to perform all this work for only $1,499.
Andrew M. Jaffe
Attorney at Law
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