Legally Protecting Live Content With Eric Farber

TLEP 51 | Protecting Your Content

 

Special guest Eric Farber is Founder and CEO of CreatorsLegal.com, a former entertainment lawyer for over 20 years, and author of The Case for Culture, bestselling book discussing growing your company through a great culture.

Uncover his perspective on how to be more professional and legally protect your content. Hear about Eric’s background and how he got started supporting content creators with legal support. Learn how being detail-oriented as a company created a better client experience, all the way down to coffee service. Discover Eric’s advice on protecting your content as a brand and an influencer, including the importance of contracts. Get tips to ensure that you’re covered all the bases in collaboration amongst everyone involved. Find out what he recommends for live streamers to avoid problems (like licensing material), especially when they’re sponsored shopping events. Gain an understanding of copyright laws and FTC regulations, and how this differs from country to country.

 

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Legally Protecting Live Content With Eric Farber

This is a special episode because we don’t have Whitney joining us. For the fans of the show, you’ll stick with me. I hope it would be a fun episode. We have a special guest. His name is Eric Farber. Eric is someone that I’ve met through a connection that is into everything legal. Many people in this audience have asked us about the implication of live shopping, the implication of producing content and the legal aspect of it mostly from a brand perspective and a creator perspective. How do I protect my right? How do I protect the content?

I’m very excited because Eric has been in this industry for many years. He created and cofounded a platform called Creators Legal. It’s a do-it-yourself platform where any brand creator retailer can pop in and get a great number of documents that will enable you to have a strong legal structure around the partnership with brands, creators and partners. It’s a great place and tool to have. Not only has he been the cofounder of this platform but he’s also the great host of The Daily Creator, a wonderful podcast about content creation. First of all, how are you, Eric?

I’m doing great.

Thank you for taking the time. We appreciate it. I’m super looking forward to this conversation. Before we jump in, I’d love to go back a little bit on your background because you started in the legal space and then, for some reason that I would love to hear, you went into the content creation aspect of it and then went back again to legal. In 2000, you decided that maybe content was your passion. You wrote a book. You are a disjunction of creator and legal. Tell us a little bit about your journey.

I was always a huge consumer of media, art, books, film and music. I always wanted to be somehow involved in creating. My mother was an artist. My father was an entrepreneur. I was never great as an artist. I was never necessarily that creative person outside of business. I went to law school. I spent about a year working with athletes mainly. I had early successes in that, a lot of first-round draft picks and stuff like that. This goes back to ‘94 when I graduated.

I then moved to LA and went to work for a place called United Talent Agency, which is one of the biggest talent agencies in the world. I spent a couple of years there and mainly in the TV department in what they called TV Packaging back then. I then went over to a small film company that was based at Sony Pictures in Columbia Studios and work there as a development director. I also did a lot of their legal affairs because I was a lawyer and they liked having a lawyer there, even though that’s not what I went there to do.

After some time, I had the opportunity to go back into private practice. I represented a lot of athletes and the Tupac Shakur estate for about eighteen years and did a lot of intellectual property work. Eventually, I had a hand in managing the estate after quite some time. It’s interesting because we managed all that merchandising as well, which is the T-shirts, the blankets and the pillowcases. Anything that you can think of that you can sell, they’re going to put an image or a name on it. I represented Tupac for that and a bunch of other big celebs for stuff like that.

After a while, I was doing a lot of work with athletes as well and we founded this injury law firm for athletes, which was Workers’ Comp for Professional Athletes, which grew into a large community-based workers’ comp law firm in the Bay Area, which is still going on. I don’t work there anymore. It has 6 offices with about 80 people. I wrote a book about the growth of that and we focused on company culture to grow that. I was approached by a publisher and we wrote a book on it.

If there’s something that I have had to picture, it’s the creation of a legal get-together. It’s generally two opposites field. You have been able to pair those well. What I found interesting also is your new journey from creator to legal, to creator to legal again. In December 2020, you decided to say, “There is a wide space where creators need help. Walk me through how you uncover this opportunity. Where did you feel that the need was? Why did you take on the leap of faith and say, “Let’s create Creative Legal. That’s going to solve a big pain point?”

It was an idea I’d come up with a long time before and probably didn’t have the knowledge and the resource to be able to bring it to life but it was one of those things that were a rock in the shoe. I’m a big believer that business owners and brands are creators and that we are constantly creating. Whether that’s the customer experience or the process we’re creating, you have to be inventive in the same way that a creator has to be inventive.

Business owners and brands are creators, and we are constantly creating. Share on X

I ran the marketing for that company. It’s called Pacific Workers. It’s still around. It’s become a much bigger enterprise. I ran the marketing for that company and any brand owner or business owner will tell you that those are creative things. We may not be selling merchandise but we’re simply selling a service. We’re still shaping the customer experience and the way the employee experience as well. I call it the stakeholder experience.

That was a lot of fun to me and I enjoyed whether it was the stuff that went on the walls and how we spoke to people when they walked into the lobby and what our lobby look like. We went down to every little detail down to the fact that we were probably the only law firm around that had a full coffee station and we had people that were trained. When people were brought in, they were brought into the conference rooms, sat down for their meeting and were given a little menu.

I had a hand in designing that whole experience. To me, that is creating like anything else. We may not be designing clothes, a water bottle or a better microphone like these but we are still designing an experience and that’s a consumer experience. That was always fun to me. The truth is that I was never great at practicing workers’ comp law. It was an opportunity that was presented to me. I focused on the things that I could control and that was the customer experience.

When we were talking and preparing this episode, one of the things that stand out is that you have a big pulse on what’s going on in the creator world in terms of legal. Some of the readers that are reading on newsletters, we’ve talked about an event that happened. It was in the UK where a creator got sued and got into some trouble because he was not disclosing well enough that the sponsor on this podcast was a paid sponsor.

From that angle and the conversation you’re seeing, it sounds like we are seeing more and more creators trying to protect themself or navigate this whole spec about, “This is my content. This is the ownership of what I created.” What are the big cases that you’re following? You talked about the Kardashian case. What are some of those cases? What is the main frontline that you will say is important for a creator or a brand that is reading that they should think about when they are working with creators?

There are a few things. One is there are way too many handshake or email deals that go on right between brands and creators. Brands and creators need to take the time to document the expectations of the parties into a document are and have them signed. That’s first and foremost. There are way too many deals out there that go wrong and deals generally go wrong because people don’t set expectations for each other. When you talk about those expectations in advance, that generally helps deals to get better.

TLEP 51 | Protecting Your Content
Protecting Your Content: Brands and creators need to take the time to document the expectations of the parties in a document and have it signed.

The other is to be you. If you are going to be posting on whether it’s Instagram, TikTok or whatever it is and you are sponsored, it has to disclose that there is sponsorship. The Federal Trade Commission rules and regs are very clear about that and you’ve got to make sure that you disclose that. You mentioned the Kardashians. I can’t recall which coin it is or which crypto but they failed to disclose the relationship.

When you are an influencer as big as the Kardashians or Kim Kardashian, you are going to move the needle with sales. If you don’t disclose that, which is what she didn’t do, she got fined about $1.2 million. That disclosure is a big one. People need to pay attention to the Federal Trade Commission rules when they’re doing this. Brands need to be aware of this as well.

It’s interesting. Most content creation will end up on a platform somewhere, whether that’s Instagram, Facebook, YouTube or TikTok. When you’re doing this type of stuff, when you’re creating and submitting it to those platforms, this is what they call user-generated content. You are turning over rights of use to the platform so the platform can then use stuff.

Most content creation will end up on a platform somewhere, whether that's Instagram, Facebook, YouTube, or TikTok. When you create something and submit it to those platforms, you are turning over rights of use to the platform, so the platform can then… Share on X

A lot of people have said that they don’t like that TikTok is using something and moving around to different places. That might not be your choice. Your choice is to use a different platform or restrict things. TikTok is a great example and there are a lot of sales going on TikTok. It’s become such a massive platform. You can choose the restrictions that you want for your content. If you don’t want to have it dueted, you don’t have to. If you don’t want to have it stitched, you don’t have to. If you don’t want to have it downloaded by somebody, you don’t have to. You get to make those choices as you upload.

Be cognizant that if you upload things, that user-generated content is going to spread and it might spread in ways you don’t want to. That’s very important. Unless you can move your people to the off-platform, whether it’s a website, Patreon or something else, then you better expect that your content is going to be used by that platform. Remember, all of these places are user-generated content, whether it’s Facebook or all of this.

Back in the early days of this stuff, I represented Brad Greenspan, who was the actual Founder of MySpace. After he sold MySpace to Fox, he started another company called LiveVideo. Everybody got to have their channel. It was right around the time of YouTube. It didn’t succeed but it did well at that time. It was ahead of its time.

I wrote some of those original terms and conditions for that company. User-generated content is what the internet is all about now. The fact is that Facebook and Instagram get to repurpose your content in different ways when you post something, they get to push something out in a different way. That’s their prerogative because you have accepted those terms and conditions.

One of the things that we try to make sure of at Creators Legal is that when you hit the upload button, your camera people, writers, editors and all of those people involved in that, you have a proper contract with each one of those collaborators. If you’re going to claim that you own all the rights in your copyright as you hit upload to YouTube, you have to have those things. If you don’t have those things, then you have not properly assented to them.

We tend to think about those things but I don’t think we are spending enough effort and energy on that. It’s only when you are facing a big problem. Working with maybe Creators Legal can have those complaints and make it easy. I want to shift back a little bit on the livestream shopping and livestream altogether.

A lot of brands will use a creator to perform a livestream on their handle. Let’s say I am Nike. I’m working with Jennifer and Jennifer is going to promote the Nike shoe on the Nike handle. In this specific case, does the streamer have to mention that this is a paid sponsor? Will she get paid to talk about Nike shoes or are there some different variations because it’s livestream?

There are two different things here. It could be an affiliate who’s doing that. You always have to disclose that you are an affiliate and that if somebody makes a purchase, you’re going to make money, whether that’s on an email blast or whatever that is. There are plenty of blogs out there, even mass news articles. They all say it. I would think that you need to say that it is a sponsored post or a sponsored livestream if you’re going to comply with the FTC rules.

I’m going to raise some other things though. This is interesting. Instagram instituted subscriptions. There’s paywall content for creators to have subscriptions. It’s very interesting because you can have music and different things on your Instagram stuff. Occasionally, they might pull down the music because Instagram doesn’t have a proper license.

They have made it very clear on the subscription side that if you’re going to post paywalled content, they’re going to mute any music and copyrighted material. There’s no third-party copyright stuff allowed in Instagram subscriptions. You’ve got to look at the terms and conditions when you are posting to a third-party site. That’s the best I can do when it comes to that. If you don’t know the rules of the stuff that you’re doing, you might get muted.

TLEP 51 | Protecting Your Content
Protecting Your Content: You’ve got to look at the terms and conditions when you are posting to a third-party site.

There’s a big conversation out there that says, “Don’t build your audience on rented land.” In some way, what you’re saying from a legal perspective is, “The more you leverage that rented land, the more exposure you have to potential challenges down the line and less control over what you are producing.” If control over the production is the most important thing for you, then you should think about how you transfer that content to your environment where you control it because that’s your environment. You get to detect those rules.

Regarding the disclosure for the livestream, I don’t want to put you on the spot but for the case of the show that was happening in the UK, the fine what’s pretty steep from what I remember but the person was saying it was a sponsored post it was not clearly said. In the case of a show, you would expect someone to start the show and go to the end.

Maybe saying it one time is okay but in the case of a livestream, what we see most often is that people will have a segment of 6 or 8 minutes that they will rotate. They will do that for 40 minutes to 45 minutes. Do you feel that saying it once at the beginning of the stream and knowing that people will come is enough or should we think about having that maybe on the description of your events so you’ll feel better covered? I’d love to think about that because, in some way, we are seeing brands trying to get their feet with creators on livestream. I haven’t seen any disclosure anywhere so far, to be honest with you.

These things are coming up. Governments are slow. The governments in Europe are faster on this stuff and more severe than they have been in the United States but let’s remember that the copyright laws, the last major revision was in 2000. Governments are slow on the uptake of any of this type of stuff. They don’t keep up. The Federal Trade Commission has some stuff. It’s not quite what we do at Creators Legal. We’re providing the tools for people with an abundance of caution.

In an abundance of caution and not having read the latest in the FTC or any of the rulings, I put it in the description. I would put it at the bottom or top. You may want to put sponsored by on your feed if you can put logos on your feed or something like that. You mentioned something as well. You’re renting the space and you’re not owning it. That’s an important point.

I read about a creator who sold their entire YouTube content on YouTube for almost $20 million to repurpose somewhere else. To do that, they needed to make sure that they owned all of that content and that anybody who participated in that content had a contract. Anybody who’s helping to produce any of this stuff, your content needs to be protected in that way. You need to own it all. It’s called the chain of titles. That’s an important piece to all of this.

In your original question, should you disclose it? Yeah, you disclose it. I’m surprised I didn’t know about the case in England where somebody gets popped as a podcaster. There are millions out there who are listening to this that would care. A lot of this stuff is going on. I saw a case of a woman who owns a candle brand. She was talking about this on TikTok. She was very upset. She was crying. She and her husband had built up this candle brand. It was elegant, nice stuff and beautiful photographs.

Some supplier from Alibaba stole her photographs and was using them to promote their brand. They photoshopped their brand onto there. There is a copyright infringement case in it. Whether or not you’re going to be able to go get that person, who knows but you can always file for a copyright. You don’t need to file. There’s common law copyright as well. As long as she can prove the ownership of that, she should be able to start sending complaints and takedown notices, which is what they call them, to Alibaba. There are ways to deal with your own content around the web.

Bethenny Frankel sued TikTok. She was one of the Real Housewives of New York and has been successful in some brands. She sued TikTok because another brand was doing knockoffs and had somehow used her fake endorsement from her content to repurpose it into theirs. She sent a whole bunch of letters. They never pulled it down. She finally sued TikTok for it. With millions of people on these platforms, you’ve got to be very persistent and insistent about your content if it is being used. That’s the way it goes.

With millions of people on these platforms, you've got to be persistent and insistent about your content if it is being used. Share on X

I was part of the early foundations of what they call the VeRO Program, the verification programs at eBay. eBay was selling tons of illegal products in the early days and a lot of that was Tupac Shakur merchandise. eBay looked at this stuff and said, “How are we ever going to deal with this?” They set up a program for trademark owners to be able to file and notify them but it takes a lot of work to monitor.

What this conversation makes me think about is more about the creators that want to be professional and are spending time and effort to create this content and monetize that content in different manners they have. We start seeing that where the content that you own ends up being bought. We all heard about the case from MrBeast that was offered $1 billion for a voice channel. You talk about this other case where someone offered $20 million for another channel.

People build audiences and content. That content has an ultimate value. Thinking through the idea that if you want that value to be protected, you have to think about the whole legal implication and working with legal. That’s an important thing. For all the professional creators out there, if you are thinking about an exit and based on that, are you enough protected for it? If you’re not, maybe go back and check with Eric.

I’m sorry. It sounds like we have run into some technical difficulties and we have not been able to wrap up this conversation with Eric. Before we wrap up, please check his website, CreatorsLegal.com. If you are in need of documentation and legal documents for everything from a podcaster, filmmaker, musician or brand that wants to engage with the creator economy, this is a wonderful resource. Eric is also on LinkedIn so please feel free to reach out to him and ask any questions that you may have. In the next episode, we have some cool guests lined up. Until then, thank you and have a safe time.

 

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