The Ultimate Blog Podcast - 70. Affiliate Contracts with Berkley Sweetapple

Episode Date: April 18, 2023

We are excited to welcome back Berkley Sweetapple, a business and trademark attorney, to talk all about the legal side of working with brands in terms of agreements and contracts. She specifically works one-on-one with bloggers, coaches, online course creators, and business owners.  If you are wanting to work with brands but don”t know the legal side of it, you’ll want to tune in to this episode!Thanks for listening! Connect with us on Instagram: @sparkmediaconceptsSave 20% off of Berkley Sweetapple's templates using code SPARK20 on her website: berkleysweetapple.comCheck out The Blog Depot. This is a community and course that we have set up for you if you need questions answered before you start your blog. Join The Ultimate Blog Bootcamp, our online course and coaching that helps you build the blog that you have always dreamed of.SHOW NOTES: www.sparkmediaconcepts.com/episode70

Welcome to the Ultimate Blog Podcast with Amy Reinecke and Jennifer Draper. We're on a mission to empower women who want to start or grow their own blog. This podcast is for women who want to learn blogging basics and who crave inspiration and encouragement. Whether you're just getting started or have been a blogger for years, we're excited to welcome you into this space where we are passionate about creating community over competition. We are bloggers who want to encourage you to believe in your potential, step outside the norm, and step into a life where you create your own schedule, your own success, and your own story. Join us for weekly episodes as we navigate blogging

and work from home life, all while raising a family and having some serious fun along the way. all while raising a family and having some serious fun along the way. Hey, everybody, and welcome back to the Ultimate Blog Podcast. Today, we have Berkley Sweetapple back with us. And we are so excited to talk to her a little bit more today. We are going to be talking about working with brands and what the legal side of that might look like in terms of agreements and contracts. So welcome back to the podcast, Berkeley. Thank you for having me back. Yeah. If anybody has not listened to your other episode yet, we would highly suggest you go back and listen to that one and we will link it up here in the show notes. But today we're going to dive a little bit more into a specific topic. But before we do that, would you mind just giving everybody a brief overview again of who you are and what you do?

Sure. So I'm a trademark and business attorney. I help entrepreneurs in the online space legally protect themselves with trademarks, contracts, website policies, copyright, all that good stuff. All that we need stuff. Yeah. I think we like to bury our head in the sand sometimes when it comes to that, which is completely normal as a new blogger. It feels a little overwhelming to think of ourselves in that way that we have to think about business pieces and legal pieces of our blogging business. But it's really important. And that's why we wanted to talk about this today. So what we really want to talk about those times when you might decide you want to work with a brand in some capacity.

And that is probably going to require some sort of assigned agreement with them. of a signed agreement with them. So just to start off, let's just talk a little bit about how a blogger might be able to work with a brand. Can you explain what that might look like, what the different relationships you could have with a brand might be? Sure. You could be hired to post maybe just like a one-off post or reel, or you could be in a contract where you post regularly for them on different channels and in different formats. So posts, stories, reels, things like that. And some of those you might get paid like a commission if you're more of an affiliate. And some of them you might get more of a flat rate. If you're doing some sort of what we might call as bloggers like sponsored work.

So you might just negotiate a flat rate for a blog post or an Instagram post, etc. Right. So there could be an affiliate aspect where you make a commission based on sales of your post where they're tracking your post and how much you sell. You could be paid just a flat fee per post or per reel, or it could be some kind of hybrid where there's incentive. Yeah, there's lots of different ways to work with brands. And I think as you blog longer, you're going to find more opportunities come your way. But I think the important thing to note is that you want to make sure that you're protected as a business owner, as a blogger, because unfortunately,

there are brands who could take advantage of you. And that's what you kind of want to look out for. So let's talk first about affiliate disclosures that you might need to have on your site. That's one way that you can protect yourself. So what does that look like? Sure, so if you're an influencer and you're writing blog posts that are sponsored, so either you're getting something for free or you're being paid to promote a product or you're getting paid a commission

based on how many products you sell using an affiliate link, you need to have a disclosure on the blog post. And this is because of the Federal Trade Commission. So the FTC has advertising rules that you have to follow that basically say, if you're being paid to promote something or you're getting value in return for promoting something, your reader needs to know that.

And it doesn't have to be anything like there's, you don't need to hire an attorney to write this. You can, you certainly don't need to. But basically, they're saying like, it needs to be in language that your reader understands that you've been paid or have received something in exchange for this. So that doesn't have to be just cash. That could be like they send you a product and you still need to disclose that. Exactly. And you can say, you know, they sent me this and I love it. Thank you for sending me, you know, this product. I love it. And I'm sharing it with you guys. Like I appreciate them sending this to me for free. You can do like you probably see a lot of like hashtag ads. So

this applies not just for blog posts, but like Instagram posts, YouTube, like in the caption, anything like that. It has to be a clear and conspicuous disclosure. So they have certain recommendations in regard to like placement. So if you have a blog having one disclaimer page where you say some links on this page may be affiliate links, that's in the majority of cases not going to be good enough. You need to have that ad disclosure in close proximity to where you're actually talking about it. So it's really best just to err on the side of caution and make sure that

it's really clear any links that you're sharing are sponsored. Exactly. So on an Instagram post, that means like above the more button, you know, so people can actually see it. If it's on a story, they want you to not only say it, but write it because some people don't listen with audio. So they take more of like a common sense approach to telling your audience that something's paid or sponsored. So the FTC, so the Federal Trade Commission, they have their set of rules, but then each

affiliate could have different rules as well. Like I'm pretty sure with Amazon, don't quote me exactly, but I'm pretty sure that there's, you have to have the disclosure prior to the link. So like companies can also have their affiliates enter into like terms of use or an affiliate agreement where they can have their own set of rules. And in most, like when brands are hiring influencers, there will be a paragraph in the contract or in the terms where it talks about making material disclosures and complying with FTC guidelines. Yeah. And most, in my experience, provide like exactly like what hashtags to use, like put on a blog post to make sure that you put them there and then what hashtags to use for

that so then it can be easily found yes that's always helpful yeah it is helpful when you are especially if you work with multiple it can kind of get a little overwhelming with which affiliate needs what and how you're supposed to share but that's why I'm always a proponent of being a little picky and a little picky choosy about who you're working with to make sure for a couple different reasons. One, to make sure that it's fair, because you don't want the companies taking advantage of what you're doing. Because essentially, affiliates have just replaced commercials and things. We're just people who are sharing naturally. And then two, you have a lot to manage. So if you're working with like 40 affiliates, that is a lot to manage,

quite honestly. And you want to be able to show up well for each of them. It's not to say that you can't. If you're working with 40 affiliates, you're probably having like some type of assistant to help you with that, to be really honest, because that is a lot to manage. So just be really kind of picky choosy about who you're working with. Make sure it's a fair trade. Make sure they don't have super high expectations of what you need to do. For most affiliate, you are going to be able to share fairly organically and freely. It's more when you get into brand sponsorships that they might have more of a list of things that you need to do in order for that. And a brand sponsorship is generally, they have some guidelines and rules,

and then you are getting paid a flat rate. With an affiliate, you're just getting paid a percentage of a sale. So if somebody were to do brand sponsorships, that's going to be kind of a different kind of contract all in of itself. So what are some things that they might need to look at for that? So that's going to have some of the same clauses like the material disclosures, Federal Trade Commission guidelines, things like that. It'll have where the brand wants you to post.

So it'll be very specific, like which platform, which format, things like that. One thing you want to be aware of is sort of like, is there an exclusivity clause? So are you prohibited from doing influencer marketing for any other competitor? And you want to make sure that the categories in which you're prohibited from working with other people is fair. So you don't want to have the exclusivity clause be unfair if you're not getting paid for that. It should line up with how much you're getting paid. Same thing with ownership of intellectual property. So if you're creating content, you know, does the contract say that you own that content and you're giving them kind of like a license to it and, you know, usage of that, or is the brand

owning that content? So there's no right or wrong as long as you're getting paid what you deserved. One other paragraph that you might see is like restricted activities. So you see this kind of like with celebrities and like the news a lot where they could be dropped from brand deals because they do certain things that make the brand look bad. So just being aware of reading that clause and understanding exactly what it says and what you could be like let go for doing and how broad that is. Do you know if your website is protected?

Did you know that your website needs to be protected? Having the appropriate disclaimers on your website is really important. And since we aren't lawyers, we had to find someone who could help us protect our blogs with the right documentation. And that's how we found Berkeley Sweet Apple and why she is our go-to gal for legal templates for your blog. Every website needs a privacy policy and a terms of use at a minimum. And Berkeley has a bundle template that will help you add these to your website in less than 30 minutes. Don't wait until there is a reason to add these to your blog. Protect yourself from the start and make sure that you have them. Better to be safe than sorry. You can see all of

Berkeley's available templates on her website, berkeleysweetapple.com. And if you use code SPARK20, you can save 20%. Protect your website and your business today and let Berkeley Sweet Apple provide you the legal templates that you need. You can find the link to Berkeley's website and the code for 20% off in our show notes. and off in our show notes. Most of these contracts written in a way that the average person would understand, or do you think that bloggers need to think about hiring an attorney to help them read some of these contracts? I have bloggers come to me a lot to read these contracts. Yeah. It really just depends on the brand. Yeah. I've seen really simple ones and I've seen ones that are like, whoa. So when the stakes get a little higher, possibly it's worth a little more

money or there's a lot of requirements involved, then it might be worth considering having somebody help you look at this and make sure that overall you're protected and that you're doing the right thing for your business. Exactly. It comes up with people, like people who come to me generally have long-term deals or it's like a high one-time fee because otherwise it doesn't make sense to pay a lawyer. Right.

I think the moral of the story here is read your contracts. Yeah. Like you need to have a clear understanding. Don't just assume that, oh yeah, I'm sure it's fine. Actually read your contract. Like you need to have a clear understanding. Like don't just assume that, oh yeah, I'm sure it's fine. Like actually read your contract. You know, we all look at different things. Well, maybe you don't Berkeley, but some of us look at things that we scroll through and like, I'm sure it's fine. You know what I mean? But I bet you- When it comes to myself, I do that.

But I think that that's, you want to make sure that you don't end up in a situation that could like turn around and kind of bite you in the rear later, because what are some of those, like let's play devil's advocate here and say that you have a sponsored post that you do not disclose correctly. And the FTC comes after you. What does that look like? Like what, what could happen? So if you Google, like the FTC has said that they're not really coming after bloggers. I actually, well, I don't know if I'm allowed to say this. I worked for the FTC one summer, and I'm not allowed to say what happened there actually. But on their website, they do say they're not coming after bloggers. You have have to imagine that like the FTC is a it's a government unit and there's only so many people who work there. So they're going after like the Kim Kardashian's who don't disclose things for millions of dollars.

Didn't she do that recently? Yeah. So that's what happens. So if you Google it, that's what I thought. Kim Kardashian FTC. That's where the dollars are. We have yet to mention the Kardashians on the podcast. So there's a first time for everything. But yeah, I mean, and it's not just like the Kim Kardashians. Like it's if you're making a lot of money for something, generally, if it's in also a highly regulated field, like a medical field or crypto or things like that, you could also be violating SEC laws by not having those disclosures. So good idea to just have them.

Just have them to protect yourself because you never know. You never know. Yes. And the FTC has guides online. If you Google FTC ad disclosure or sponsored posts, they have guides that are very readable. I think that's important just to know where you can go for information. So FTC, you can also reach out to Berkeley if you have questions regarding a contract or affiliates or anything like that. But knowing that your business is worth protecting. So no matter how much money you're making or how much money you're not making yet, I think that's something important to say is, let's just say that you're a brand new blogger and you are getting product for free. This is something you still want to think about.

You don't want to just ignore it because you're not making millions of dollars yet, or even thousands of dollars yet. This is something from the get-go just to get really familiar with making sure that you're disclosing this kind of partnership or collaboration. Because one, that's your authenticity with the people who are consuming your content. And I think that that's really important is just to be very authentic that you are getting paid. And now this is a very normal thing. People know that influencers get paid. People know bloggers get paid. When Jennifer and I started blogging, it felt weird, honestly, when it first started coming. At least it did to me. But I had sharedging. It felt weird, honestly, when it first started coming.

At least it did to me. But I had shared for free for a long time. And then all of a sudden, I was like, well, maybe I should make some money doing this. And so it felt weird then to have a paid thing. But it's okay to get paid. I want to say that. We say that often.

It is okay to get paid to share about a brand. They have a marketing budget. But just make sure that you're crossing the T's and dotting the I's to make sure that you're not just working for the brand, but it's actually working for you too. And I think to your authenticity point, people now know that you're required to have ad disclosures. Yes. So when you don't, you almost look like you're hiding something and you're not being authentic or trustworthy.

That's so true. Yeah. I've heard of people on Instagram specifically that if they're not disclosing, people will kind of call them out and be a little frustrated by it. So just don't do that. There's nothing to be ashamed of by working with a brand and making money on something. As long as you're being real and authentic and you believe in the product or service that you're sharing about, then there's no reason to have shame or whatever for sharing a link with somebody because it's adding value.

And that's important. You just want to make sure that you're adding value and protecting yourself at the same time. Exactly. Yeah. And when you're looking through those contracts, I think the other thing to point out is if you see something in there that doesn't align with what you want, like maybe it's an exclusivity thing, but you're not comfortable with that, or it's the platforms they want you to share on, you can go back to the brand and ask for changes to those contracts. They are not written in stone. And I feel like that's a little scary at first, but I think that's something that bloggers have to practice as well. You don't have to just accept whatever they send to you the first time around. Absolutely. And I think brands are getting more

used to that as well. Yeah. Because we kind of set the stage. Honestly, bloggers set the stage with that. You have to say, well, either this isn't good enough or this isn't going to work for me. If we don't kind of stand up for ourselves, then we'll get right over, quite honestly. And they'll either not pay or they'll only offer free products. And I'm not saying that there's never a time that you should do free products. But I would just be really mindful that you're... I mean, to share free products, that I would just be really mindful that you're... I mean, to share free product, that's... You're giving quite a bit just to share free product.

So that's not something that we generally recommend to our students. Maybe for just starting out just to get your feet kind of wet in doing that, then it can give you some experience. But it's not an area that we would suggest doing for a long, long period of time. Berkeley, thank you so much for giving us some really good, solid information in regards to this because this is one of those gray areas in blogging that I feel you don't know what you don't know. And we can't be afraid of the things that we don't know. We have to lean into them instead and be willing to listen and learn.

And whether you've worked with brands in the past, maybe you haven't paid as much attention to this. Now you're learning from Berkeley today that there are some things that you're going to want to put into place and things that you're going to want to think about. And so just thank you for providing that knowledge to people.

And if they want to reach out to you to maybe gain some insight from you, where can they do that? Of course. So you can find me on Instagram. I'm at Berkeley Sweet Apple. My law firm website is berkeleysweetapplelaw.com. And that's pretty much it. You also have some really great templates that we recommend to all of our students and to others. So I'm going to

put a link to there because every website needs a privacy policy in terms of use. And Berkeley provides really excellent templates that you can use that we recommend to many people. And so if you are starting a website and you need those, let me rephrase. If you're starting a website, you do need those. And so this is a great resource for you is to go to Berkeley's website and we will put that there. We also have an affiliate code for that that we are going to put in the show notes. It is Spark20. If you're a blogger

or if you're a content creator, I have a content creation agreement. So that's written like pro influencer if you're in a situation where the brand isn't giving you a contract. If you're stuck on like how to write an affiliate disclaimer i have the disclaimer template that you can download and then if you're a brand hiring an influencer i have the brand influencer agreement but don't get that if you're an influencer because it's written more to help those big bad brands yeah okay good to know Those are some good resources. Yes. Very. And please reach out to Berkeley with anything. She's always more than willing to answer all of our lovely legal questions that we have. So thank you so much, Berkeley, for once again, showing up for

our community. And if you haven't already listened to Berkeley's first episode, she was on back at episode 58, talking about the importance of a privacy policy. And so we just highly recommend that episode as well. So check that out. And thanks for tuning in this week. And thanks, Berkeley. Thank you for having me. Thanks.

Thanks so much for tuning in today. If you'd like to continue the conversation about blogging with us, please find us on Instagram at Spark Media Concepts. You can also sign up for our weekly newsletter where we share blogging tips and inspiration. You can sign up by finding the link in the show notes for those of you who are ready for the next step and want to start your own blog, join the waitlist for the ultimate blog bootcamp. The link to join the waitlist is also in the show notes, go out and make today a great day.