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May 10, 2021 Content Chat Recap: 2021 Legal Considerations for Marketers

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Marketing can often feel like a legal minefield. Brands have to carefully navigate laws related to privacy and data collection, intellectual property and copyrights, and anti-spam laws like CAN-SPAM, all of which continue to adapt to the growing concerns of consumers and legislative bodies.

In this #ContentChat, we’re joined by Ruth Carter (@RBCarter), an internet, IP, and business attorney, to discuss the main legal considerations for marketers in 2021. Read the full recap below, where we explore how to legally quote and republish third-party content or visuals, what marketing teams should do following a company data breach, legal concerns for email marketing, and more!

Important disclaimer: Everything in this chat should be considered legal information, not legal advice. Ruth is the only legal expert during this chat, but our community of expert marketers shares their take, too. If you find Ruth’s information useful, consider donating to the AZ Basset Hound Rescue (below).

Q1: How should brands approach quoting and republishing third-party content? Similarly, how do you ensure you are not violating someone else’s copyright when it comes to using visuals sourced online?

If you quote someone and add your own thoughts or analysis, then it is probably protected by fair use.

If you want to republish someone’s work in its entirety, ensure you get the appropriate rights and permission (in writing) to do so.

Try to only use images and visuals for marketing that you created. If you use someone else’s photo or visuals, get their permission or attain a license to modify or commercialize it.

If you’re ever in doubt, double-check with the content owner to see if they’re comfortable with how you plan to use and attribute their content. The worst they can say is “no,” which is better than a lawsuit.

There is no copyright protection for facts. So, if you’d like to use the same data as another source to build your own chart or graph, you are likely safe to do so.

Attribution is a general legal safety net, but it does not guarantee protection. If you plagiarize someone’s content and then link to it, you are admitting to copyright infringement.

Q2: Are there legal considerations companies should keep in mind when it comes to the use of other companies’ logos, slogans, etc.?

You can refer to competitors as a general comparison, like Bing vs Google.

You need to differentiate yourself enough as to not confuse your customers. Audiences need to know whose product they’re buying, and you could end up in a legal issue if you brand or align yourself too closely with a different organization’s identity (especially if you do so without their permission).

Startups can often have a “don’t ask for permission, ask for forgiveness” mentality. Remember that the cost of a lawsuit and the damage to your brand could quickly destroy your company.

Beyond the legal side of using other brand icons, John advises you to assess the business implications. His team was once disqualified from a pitch because they used the company’s logo on their presentation.

Q3: Your company’s data has been compromised. What is marketing’s next step? How do you respond publicly, and what should you do internally to address the issue?

First, review the situation and identify the cause of the breach. Assess what data got out and the potential impact for your key audiences.

Be transparent about what happened and what actions your team is taking.

Ensure that a breach like this does not happen again.

And review the type of data that your team collects. Remove any personally identifiable information that you don’t actually need.

Data breaches are an unfortunate reality in our distributed world. Always be prepared for a breach. Plan your response and create a playbook that you can activate as soon as a breach happens.

Q4: Why should a brand have a data custodian, and what is their role when it comes to marketing?

A data custodian can help protect your company data. A data custodian limits what information the company keeps and deletes any data that is no longer necessary.

Your marketing team should partner with your data custodian to highlight how the company is keeping its data safe.

Depending on your organization and resources, the data custodian may serve as a point of contact for any marketing data requests.

Q5: What are the primary legal concerns surrounding email marketing?

Privacy and spam are the primary legal concerns surrounding email marketing. Marketers should be aware of GDPR and CCPA (Ruth has free cheatsheets available, see Q7).

The various laws inform how you can use personal data, including whether cookies are allowed.

Email list members must subscribe to the list. Do not add anyone to your email list without their consent. If someone unsubscribes, remove them immediately.

Be clear about what you will use someone’s email for. If someone provides you an email to receive a confirmation receipt, you should not assume they want to join your marketing email list.

It is helpful to enlist an expert who can advise your team on the rules and best practices.

Q6: Are there some tools or resources for marketers who want to ensure they are creating content legally?

Ruth wrote a book on the legal side of blogging. Grab your copy here:

Review your contracts with third-party content creators to ensure that you won’t be liable if the creator violates someone else’s rights in your content.

Per John, it’s best to create original content and imagery to avoid any legal mishaps.

Q7: In the coming year, what are some things marketers should be aware of, such as changes around the use of cookies, etc.?

More states are passing privacy laws. Review your privacy policy and practices against these changes at least once a year.

Ruth has cheat sheets for GDPR and CCPA—email them to get yours!

For cookies, a simple “OK” button to agree to a site’s terms is acceptable (for now).

A rainy day fund should be much more than $1,000.

For more legal tidbits, check out Ruth’s YouTube channel:

About Alek Irvin

Alek Irvin is a content marketing professional with a rich history in social media management, executive thought leadership development, and media relations. As a consultant at Erika Heald Marketing Consulting, he creates human-focused content and thought leadership platforms that help brand leaders connect and engage with their communities. Alek has worked with a range of startups and Fortune 500 companies across the B2B technology and consumer spaces, including IBM, Dell Technologies, Hitch Works, Emtrain, Integrate, and Frameable. Connect with him on Twitter @AlekIrvin.

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