Episode 20: Working with Influencers and Other PR Social Media Issues

It’s Episode 20 of the “Law & Business” podcast.  In this episode, Janine Just of Janine Just, Inc., “chief connectologist.”  Janine defines a connectologist as an agent of digital gap-bridging; a person who brings real life to digital relationships with in-person interactions and shared experiences, integrating both public relations and social media savvy along the way.

In this episode, Janine talks about the strategies her public relations firm implements strategies so her clients can work with social media strategies and influencers.  From a legal aspect, we talk about trademark issues with hashtags in Twitter and FTC disclosure requirements for influencers.

Here is a lightly-edited transcript of the episode:

Intro:
It’s the Law and Business podcast hosted by Anthony Verna. We tackle the hard issues where law and business intersect to help you run a smarter business and avoid costly mistakes. Verna Law PC is an intellectual property law practice, focused on trademark, copyright, advertising law, and domain name disputes. Contact Anthony at Anthony@vernalaw.com.

Anthony Verna:
All right, welcome to the Law and Business podcast. How are you doing, Janine?

Janine Just:
I’m good. Thanks so much for having me, Anthony.

Anthony Verna:
No problem. So, I’m here with Janine Just. Janine, why don’t you to tell everybody what you do first.

Janine Just:
Sure. So I’d call myself the chief connectologist of Janine Just, Inc.

Anthony Verna:
I love that that title you’ve given yourself.

Janine Just:
Well, that’s what it’s all about, leveraging the relationships to your best advantage. So, we work with small businesses, emerging brands. Fashion, beauty and technology are our specialties and we work with them on non-traditional PR campaigns, marketing, influencer marketing, and a lot of events. That’s particularly where we really shine with clientele and the brands that we work with. And we also have a passion project that’s actually gone, gotten bigger and bigger as we’ve progressed with it called Textile NYC, which is another event series that basically talks about fashion and beauty and how technology is fusing into it more so ever. And it’s really becoming predominant in fashion.

Anthony Verna:
And, and here you are talking to me cause when you think of fashion and beauty, you think of Anthony Verna Law. Gosh, don’t tell my apparel clients that.

Janine Just:
You know, I won’t tell them what you’re wearing right now.

Anthony Verna:
Okay, thanks. You can, you can tell Ralph Lauren what I’m wearing right now. He’ll be very, very happy to hear that.

Janine Just:
The pink looks amazing.

Anthony Verna:
Wow. Thanks. Thank you, my friend. So, you said a couple of key things that perked up to my years and that is non-traditional marketing and influencer marketing. What does specifically does that mean?

Janine Just:
We’re very strategic in what we do. We don’t want to take on a brand unless we have a clear sense of how we want to tackle it and how we want to go about it. So, I know a lot of agencies out there and you know, bless their hearts with what they do, They’re continually pitching, you know, different outlets of traditional PR publications, editors, bloggers, all that wonderful stuff. But we really hone in on something that we can do specifically with the brand.

Anthony Verna:
Social media campaigns, then?

Janine Just::
Yeah. As long as we can come up with something that we know is going to be, you know, it’s going to be out of the park as far as what we put into it, they’re going to get their ROI because it’s really hard to quantify public relations and marketing. And it’s a gray line because a lot of people come to us and they think that we’re sales, you know, we’re a sales team, but, it’s making sure that you manage their expectations to say, no, we’re not. And if you want to, I would probably lean towards a salesperson or you know, a sales force to kind of get you to where you need. And then you can come back to us later. It’s really brand awareness. It’s storytelling and I think a lot of brands are missing that now because they’re not telling their message. They’re not telling their story in a creative way where you can get people to be your subliminal brand evangelists.

Anthony Verna:
Sure. I like that phrase like that. I just came from a marketing law conference. Nobody used that phrase. But I like that. When you are talking about having a brand tell its story on social media, sometimes I find that maybe the space is a little constraining to fully tell a story. How do you help a brand get that message?

Janine Just:
There’s so many verticals now out there. So, every vertical is not gonna work for each brand. So, something might work really well for Pinterest is not gonna work really well for another brand on Pinterest. So it’s really kind of crafting an elevator pitch that you can kind of stick into the different verticals and see what’s really going to resonate well, where you get the most engagement because then you can get engagement and people are interested and they want to say, you know what, I want to click on that and read more about it. So, it’s really keeping an open ended so that people want to be part of that. They want to be part of that story. They want to know more about that story.

Anthony Verna:
Have you helped brands create hashtags on Twitter.

Janine Just:
Of course.

Anthony Verna:
And what’s your step  to creating a good hashtag for a brand?

Janine Just:
You have to make sure it’s not taken.

Anthony Verna:
Ooh, I’m so glad you said that, but I’ll let you keep going.

Janine Just:
You know, if you’re doing one for an event or you’re doing one for a campaign, you have to make sure it’s not taken. You know, we were first originating this a couple of years ago. You couldn’t register a hashtag. Now you can. So now you can have exclusive rights to that hashtag, which a lot of people don’t know or aren’t aware of. So they’re using hashtags that are already being used and you know, they get a cease and desist letter in the mail.

Anthony Verna:
I won’t say that I’ve written a full c and d letter too.
Janine Just:
But, it’s  getting to that point where brands are.

Anthony Verna:
Absolutely. It’s because it’s commercial speech. Yeah. Trademarks can be advertising slogans. So what I advise clients is yes, to make sure that a hashtag that’s being that was going to be developed is not already a registered trademark by somebody else, but you also have to make sure that there’s not what we call common law usage as well. And is the, if there is common law usage, in other words, it’s used without a registration, what’s the kind of conflict going to be? Because if it’s the same goods and services, obviously we want to avoid using that because that might be true state trademark infringement. Even if it’s not federal and you don’t want to mess with state trademark laws. So ad hoc and it’s just very difficult.

Janine Just: (06:33)
Do you want to play nice? Yes.

Anthony Verna: (06:35)
Yeah, you just don’t want to deal with it. You don’t want to do with federal trademark infringement either, but because nobody likes being a defendant, that’s for sure. But when I work with it with a client, when I work with a brand and you know, hashtag is being created as a one, you need to be just as conservative with that as you are with any other brand that you’re creating out of this company. So that means let’s do a trademark search. Let’s make sure that it’s going to be clear. Let’s do the due diligence before you ever pump it through. Because once you start pumping it through, you’re going to have an issue. But I’ve had the converse as well, which is somebody calls me and says, here’s another brand using my hashtag. What do I do? And at that particular instance, you really need to act quickly

Janine Just:
Right.

Anthony Verna:
Because time is, as you know, time is of the essence on social media. And if you’re not going to act quickly, then the real question is what kind of damages there. If you’re going to act quickly, you’re going to make sure that that this is your protected virtual property, which is really what we’re looking at. That’s going to be your first real issue. How quickly can you move and how important is it to you? Because if it’s not really a trademark that you’re using and somebody else’s out there using it as well, then it’s not going to be worth threatening any kind of damages.  So, you have to move quickly.

Janine Just:
It’s only a lot of people don’t want to take the extra steps to really see themselves in a far worse situation. So, it’s always nice to roll up your sleeves and take the extra time just to check everything out and make sure everything is kosher before you kind of move forward with putting together a massive campaign. And you also have some bigger brands that you have to be cautious because they’re going to get a lot more noise and traction. So, it’s again, just, it’s being cautious.

Anthony Verna:
Sure. And it’s, it’s, and it’s tough because I’m sure a lot of your clients are just willing, just want to push it through.

Janine Just:
Immediate gratification. Let’s go, let’s do this, you know, I need to get 3000 users by the end of two weeks. So, which to me is also a red flag too with not working with certain brands that need that instant downloads or need to acquire users pretty quickly, which I understand that they have investors looking at them and they’re kind of tightening up the screws to make sure that their investment has a decent return on. But sometimes, I don’t know, for me that’s a red flag with certain brands when they, cause I feel like they’re kind of at their end and they’re just burning their capital.

Anthony Verna:
So let, let’s, let’s talk about working with influencers because that seems to be to be a little more tricky, at least from your standpoint. So how does that work? Do you just go hire people? I mean, I mean that it can’t work just that lickity split, right?

Janine Just:
Right. Yeah. I mean it’s, it’s basically all about your relationships. So, when you hire a PR company, you’re hiring them for their relationships because they’re really good in traditional or there might be a PR company that’s really great with media relationships. So, you should get on Fox and friends and the Today show. So, for us we are really entrenched with influencers and the influencer network and working with them and knowing what good content is versus not good content because there’s a lot of content out there and that’s not good. It’s crap and you have to make sure you can have sentence structure and grammar and spelling is correct. You also want to make sure that, again, you’re a storyteller so you want them to be a storyteller. So, you want to make sure that their pictures are captivating and visually engaging.

You want to make sure that they also are staying on brand to what their demographic is. Cause you can kind of tell who’s selling out by posting just any product or any service. So you can really tell and appreciate certain influencers that keep on track with their demographic because they know their readers are going to get turned off if they’re talking about, you know, they’re always looking to read about fashion and then all of a sudden you’re talking about my new Samsung phone or X-box, you know, that that just doesn’t fit on point.

Anthony Verna:
This brings me to a thought that I had in a previous episode, which was marketing to the right demographic for your product, which is, which is highly important in, in what you do. So, who is an influencer? Obviously I don’t want you to name names, but what makes an influencer?

Janine Just:
What makes an influencer? Well, it’s, it’s basically, it’s not about how many, and this is so important because you’ll look at people, everyone’s looking at everyone’s Instagram pages and they’re seeing, well she’s got 50,000 followers or she’s got, you know, 130,000 followers. So, she must be very influential. So, I’m going to spend $5,000 with her just so she can push out my product. And I always want to say wrong because you don’t know how they got those followers. You don’t know if those were bought. I mean I can tell if followers are brought in and it’s kind of an easy thing to kind of teach other brands to look out for. And you also want to make sure that there’s actual conversion. What is conversion? It’s when an influencer is pushing out posts, or they’re pushing out a story that includes the brand. You want to make sure that there is conversion to that point of action. Is it participating in a contest where you have to enter your email, or you have to regram a photograph or follow certain social media outlets? Is it going simply going to the website? And most of them obviously want them to go to the website and purchase the product. Right?

Anthony Verna:
Right. Obviously, that is the end goal. There is an absolute end goal.

Janine Just:
So you do have certain influencers that are selling out products just by a simple Instagram post. Those people are absolutely influential. A lot of them are also in the celebrity categories and you’re going to get rate cards that are pretty substantial. We deal with a lot of agencies that negotiate those contracts with them. And it’s also important too, or this is where you would come into play, to make sure you have a contract in place. Cause when you’re dealing at that certain level, you want to make sure you have everything in writing that they’re going to promise you. Cause once that check is cut and they cashed it, there’s really nothing else to say, Hey, well you were supposed to give me five Instagram posts or you’re also supposed to mention me in this Twitter comment and I didn’t see that.

Anthony Verna:
Have you ever done the converse? Have you ever tried to get a celebrity or an influencer of celebrity status to discuss a brand without that contract in place? Have you ever tried that kid?

Janine Just:
The smart ones will absolutely say no because it’s all a business opportunity. The only time where they will truly say something is obviously if it’s for charity.

Anthony Verna:
One of the, one of the case studies from, from the convention actually was Campbell’s and SpaghettiOs, because I think it was Miley Cyrus posted a picture, not of her, but of a bowl, you know, a spoon of alphabet soup in it, and it said twerk. And so, yes, as highly mature as that is, but Campbell’s was thinking that, hey, that’s the first salvo. So maybe while it’s not really in our brand profile to deal with Miley Cyrus since she made the first one, maybe if we like just take one picture and that’s about it. Maybe maybe the risk profile is not so high. And they only did it because Miley Cyrus made first salvo and then they posted something, I think they, I think they posted, we can’t stop, in a spoon as well. She’s like, “Oh, that really made my day.” So, I’m really surprised that’s all it takes to make Miley Cyrus’ day.

Janine Just:
It’s really true. It’s tricky though, because then the celebrity or that influencer can come back and say, you’re using my brand or using me to sell your product. And we don’t have a deal in place.

Anthony Verna:
Right, exactly.

Janine Just:
It can also backfire.

Anthony Verna:
And that was something even two years ago, McDonald’s in-house council basically laid out for us and, and a very conservative policy of, if we don’t have a deal with them, we don’t talk to them at all. You know, you’re going to see us talk to Lebron James, we’ve got to deal with Lebron James. Lebron James Wins an NBA championship. We will congratulate him on Twitter. Absolutely. We’ve got to deal, you know, you’ve got to deal with the Olympic Committee. So, you know, we can talk and talk all we want about the Olympics, the US Olympic Committee, so they’ve got those deals in place and they’ll gladly do it. But they have a very conservative policy mainly because if it’s somebody’s name, image, they just don’t want to deal with the possible implications that could come around.

I mean look at, I think it was Katherine Heigl and suing the pharmacy chain, Duane Reade. And if you’re not in New York City, you don’t know Duane Reade, I get it. But Katherine Heigl sued the pharmacy chain, Duane Reade, for using her picture. Basically, somebody that’s paparazzi snapped her picture coming out of the Duane Reade and she had a bag that said Duane Reade. So, they decided to tweet about it and using that picture and she sued, and I think it was settled around like 6 million, for the use of one picture. Mainly because that’s her name and image and likeness and you can’t use it. You really can’t use it without consent.

Janine Just:
Yeah. I think when you’re also getting to be that big brand and you’re dealing on that caliber, it just, it doesn’t make sense. I mean, yes, with 6 million to Duane Reade, but still, it’s still 6 million. And I’m sure there was, you know, people lost their jobs over that. So, it’s just being smart.

Anthony Verna:
I mean, Michael Jordan has sued to two companies recently, basically stating, all they said was, congratulations on your hall of fame enshrinement and he sued. And one was one was a grocery store chain in the Chicago area. The other is a steakhouse chain also in the Chicago area.

Janine Just:
Now that’s interesting.

Anthony Verna:
And why is that? Why is it interesting to you?

Janine Just:
It’s just a congratulatory tweet.

Anthony Verna:
Oh, it wasn’t a tweet. They were ads. They actually took out ads. They didn’t just say on Twitter or on Facebook. No, they took out a full ad. Yeah. And for one of them, I forget if it was …

Janine Just:
Then yes. I can see that being very intrusive, offensive.

Anthony Verna:
One of those was a jury award for $8 million. And Michael Jordan said that he just took the money, donated it all to the charities. And this really isn’t about the money. It’s about the fact that you can’t use my name, image or likeness in commercial advertising. And, and that’s kind of where this idea, I guess, of a risk profile comes into play. Like, are you going to be very conservative? Of course, if you’re going to be conservative and you’re not going to engage celebrities unless you have that agreement, you probably will never get sued for an infringement of what we would call Right of Privacy or Publicity. Whereas, the Campbell and Miley’s Harris example, they said the only reason we did it was that she threw out the first salvo. It really wasn’t in their risk profile in general. And it really wasn’t in their brand profile. SpaghettiOs is really for kids, not for adults. They said but, because of who’s able to use…

Janine Just:
And it’s a great example to use since they got away with it and she said, “That made my day.” And it was really clever. So, it’s a great example that we can talk about. Can we recommend it? No, absolutely not.

Anthony Verna:
But again, they said they did that internal risk profile. And that’s really the key is that that risk profile that you need to gather for your particular team is really what I would say. What’s your risk profile? And I always recommend staying conservative. I don’t recommend just like trying to tweet to 28 celebrities that you don’t have an agreement with to see who’s going to engage you. At that point it’s a little much. If you can get the right influencers. Now, if you get the right influencers and those influencers are paid, now you have to disclose that. So I’m sure that might make for some awkward looking tweets or advertising.

Janine Just:
Right. And a lot of it can be disclosed on their blog so that as long as they’re disclosing it and then, you know, not necessarily translating it onto the Instagram post but if the Instagram post is coming from the blog and they’re stating that they were compensated for their opinion on this piece, then that’s, you know, fine. That’s basically the only thing and a lot of it, we have to remind them to do that.

Anthony Verna:
And nobody likes FTC compliance.

Janine Just:
Right. And it’s just like this, we’re doing this to help you.

Anthony Verna:
I would say you need to be careful of FTC compliance issue. It’s a heavy topic today and online. We can see the FTC beginning to crack down.

Janine Just:
As they should, because for the majority of it, it’s women. These gals are making a lot of money as they should. The ones that are doing it correctly and they’re there, they really have great teams behind them and they’re putting in a lot of hard work and long hours behind it. Well with that said, they’re doing really well.

Anthony Verna:
They are doing well, but they’re also being paid to push a product. So, there’s FTC disclosure rates are out there. I mean, and the FTC isn’t afraid. I mean, we’ve talked, Janine, you and I’ve talked about this privately, but we’ve got the Sony PS Vita issue.. And we have another one from a company called Machinima, but we’ll just call that the Xbox issue. Cause it’s a lot that it’s a lot easier to say. And also, it came because of  Microsoft paid influencers to post Xbox videos and those weren’t disclosed. And the PS Vita issue was employees of the agency talking about what a great device the PS Vita is, also without disclosures. So, in both cases, both companies did receive FTC complaints.

Janine Just:
So, it was to the agency that worked with Microsoft?

Anthony Verna:
It was, it was the agency that worked with Sony for the PS Vita issue. So since I didn’t explain that correctly, I’ll try it again. Yeah. So, the agency that was  hired by Sony to do social media for the PS Vita when it was launched, a lot of those employees were  tweeting out what a great device it was.

Janine Just:
Through the agency.

Anthony Verna:
Yes.

Janine Just:
Interesting.

Anthony Verna:
Well, no, not through the agency, on their own social media accounts. But, they were part of the agency. So, they had that material connection for the device to do well. So that’s really the thinking is that gee, this is kind of…
Janine Just:
And they fined the agency.

Anthony Verna:
Yes. Actually, I think no, they fined Sony. Sony gets fined. The brand.

Janine Just:
I’m surprised they’re not holding agencies more.

Anthony Verna:
I think agencies are the ones that are going to be held because of the fact that it is an agency. It’s an agent of the brand. So ultimately, it’s up to the company behind the brand to keep its agency in check.

Janine Just:
Agencies are also instilling upon a lot of these contracts.

Anthony Verna:
Oh, absolutely. They should. But it’s up to the brand to hold this agency in check, for lack of a better word. I don’t say that to get you handcuffed, Janine.

Janine Just:
I just think as someone who has a small firm, you have to educate brands on what to do because a lot of them don’t know. They don’t know that there should be a contract. They don’t know what an influencer is. So that’s why they come to people who have been doing this and, and seasoned, I hate the word experts, but we’re seasoned in doing their particular niche work. So that’s why.

Anthony Verna:
So does the New York state bar, I can’t call myself an expert on IP and advertising law. I can’t. I’m not an expert at anything. But, a lawyer.

Janine Just:
We’re all  learning every day.

More so now because verticals just keep on expanding and we need to learn quickly how to adapt.

Anthony Verna:
It’s very true. So while Sony was fined, it was Machinima that was working with Microsoft, I don’t see a fine amount, but they had to deal with an FTC consent order, which basically means that you as a company are agreeing to comply with the law, with the FTC, as silly as that sounds. That’s exactly what you’re doing. But the FTC basically lays it out. Here is here’s how you have to behave from now on to comply not just with the law, but to comply with this order. And you will consent to it as well. It can be very harsh. Essentially the order requires the company Machinima not to disclose any material connection between the endorser Machinima or anybody who is making videos of the Xbox One video games and the advertiser. So, Microsoft and Xbox itself. In addition, it requires the company to follow up within 90 days of the start of the campaign, of any campaign, to make sure the disclosures are still being made. So, in other words, at that particular point they’re basically told you have to put this in the video and make sure that it stays in the video. Or if you’re going to just put something like a YouTube pop up, if you’re going to put a pop up, make sure it’s always there.

So, it can be, it can be a harsh penalty, not just monetarily, but business-wise it can be a harsh penalty for the advertiser.

Janine Just:
I mean another good topic to kind of talk about to you is images. People steal images all the time. I mean I raised my hand because you know I, I’m red handed. Well no because we have team members who don’t listen to the free websites or go into our iStock photo images.

Anthony Verna:
I was going to say, so you’re a member of how many stock photo websites?

Janine Just:
Three.
Anthony Verna:
Okay. How do they suffice in terms of what you’re looking to do?

Janine Just:
Oh, we’ll make it work. Either that or we’ll work with the photographer if we’re doing a specific shoot, especially if it’s a brand and we’ll just book a photographer. You’d rather own your hub. You rather have your own created content owned media. That’s another issue. I’m sure we can talk about.

Anthony Verna:
Oh, we could talk about that for hours on end.

Janine Just:
When you’re looking for a quick photo or social media or something to pair it with, you don’t have time to do a photo shoot. Yes. It’s great to, to own and they will come after you and they will keep on coming after you.

Anthony Verna:
I mean I’m putting together an info book right now. Nothing, nothing big, but I am having images and, and I’m buying them off the right thing and you really need a, you know, off a website in order to use them in here and going through, there’s a lot of curating that I’ve had to do to make sure that it fits with what I’m saying on the next page. And that’s always, that’s always been a real thing.

Janine Just:
Yeah, it’s time consuming, very time consuming. Cause there’s thousands and hundreds of thousands of photos that you have to go through.

Anthony Verna:
So we just set up the proper temptation for typing something in Google and pull it up on the image search and then pulling it off. So, I’m sure that that, that your younger team members have a problem with that particular tug of war.

Janine Just::
Absolutely. And it’s not even, I know it’s not just us, there’s so many small businesses out there that just think that because it’s on Google, you are allowed to use it. So, as you get older and as you learn and as you get these fines,, you realize, okay, like let’s be smart about this. And you know, the first thing we do, when we’re onboarding team members, is we do a whole tutorial with them. And one of the biggest topics that we do is you cannot use images off of Google. And if you do, and I, and we get fined for it and I see that you posted it, you’re responsible for paying the fine.

Anthony Verna:
That’s a harsh way of bringing them into line.

Janine Just:
But you have to be accountable for your actions.

Anthony Verna:
No, I hear you. Well, whenever I’ve, dealt with a Getty Image bill…

Janine Just:
I have so many friends that yes, they have like, oh, Getty Images. Yeah. I had to pay one of their bills.

Anthony Verna:
Right. Of course. I usually say that to say this to the client, I’ll pick up the phone. The phone call itself is 15 minutes of my time. I got no problem doing that to see how low they’ll go. And that’s the number you take because generally that phone call all is like enough to make it worth the phone call. You know, they’ll probably drop it down enough to make it worth that phone call. So, I do that. But really, yeah, you’re not going to fight it. It’s too big of a system, too big of a machine to really fight Getty Images. And chances are you probably did take it off Google and so at that point it’s just a number.

Janine Just:
Right. And you can’t say, well, I didn’t know, or I’m a small business owner and like, this is my first time. They don’t care. They don’t care. That’s how they make their, their money.

Anthony Verna:
Very true. Very true. Up. We need to run and wrap this up, but I would say…

Janine Just:
This was so much fun.

Anthony Verna:
This is, thank you for coming.

Janine Just:
I feel like we only just scratched a little bit of the surface.

Anthony Verna:
And we only just scratched the surface, so that’s very true. But I would say some lessons here are that do your due diligence before push go on the campaign.

Janine Just:
Absolutely.

Anthony Verna:
Make sure that the disclosures aren’t placed from top down and yeah, make sure that that your copyright clearances are done as well.

Janine Just:
And if you’re working with influencers and you’re having them come to an event or you’re doing any sort of using their images or logos, just make sure you run it by them too. Because if they see something that they’re a part of an additionally, and they might be doing it for you gratuitously, you have to make sure because they can come after you.

Anthony Verna:
Of course. Janine, and how can people find you?

Janine Just:
I’m pretty easy. Everything is @JanineJust, so J. A. N. I. N. E. J. U. S. T.

Anthony Verna:
It sounds so simple. Your name, and I’m sure people mess it up all the time. Janine, thank you very much.

Janine Just:
Thank you.

Outro:
This has been the Law and Business podcast. Visit Vernalaw.com for more episodes. To contact Verna Law PC, send an email to Anthony@vernalaw.com or call (914) 908-6757.