BY MAGI FISHER | THE ARTISTS’ LAWYER
Legally protecting your business goes beyond buying a contract. As a business with an online presence (and a website), there are other implications to consider…
Register business? Check.
Purchase a high-quality contract for your services? … Check.
Make sure your website meets legal requirements? … Check?
Whether you’re building your business from scratch, or auditing your operations in a season of refinement, chances are you prioritized a website redesign over updating your privacy policy.
As an artist-turned-attorney, I get it. Your love language is accent fonts — not contact form formalities.
But as a business that operates with a strong online presence, it’s important that your website is legally sound, that you have the necessary protection in place, and that you’re following guidelines and best practices. Read on for my artist- and attorney-approved checklist of legal considerations for your website.
Disclosure: All links in this post to The Artists’ Lawyer contracts are affiliate links. We only ever recommend products and services we fully believe in and Magi at The Artists’ Lawyer is one of them. We may receive commission through purchases you make with these links. Use code TONIC at checkout for 15% off!
01 – Terms and Conditions
The terms and conditions on your website — which can also be called “terms of use” or “terms of service” — are the publicly available rules for users visiting your website. They serve as a binding agreement between your business and the website visitor, and protect you and your business should a dispute arise as a result of a user’s behavior on your website or following their visit to your website.
In other words, you’ve made a lot of content available on your website for free. It’s a highly-accessible destination for your brand, and just about anyone can visit your site if they know how to Google. This puts you and your brand at risk, unless it’s somehow protected. The terms and conditions protect everything that’s on your site.
LET’S LOOK AT A REAL-LIFE EXAMPLE →
When you host a dinner party, you’re inviting people into your home to consume food and wine for free. You might show them around, including more private areas of your home, like your bedroom. You’re providing a hospitable environment for them to enjoy themselves which puts the responsibility of preparing the space (and cleaning up afterwards!) on you.
In this example, your website is your home. You’re inviting people into your space, and it’s your responsibility to both create an environment where they feel safe, and also clean up the space after they leave.
Just like when friends come over for a dinner party, when people visit your website, you might have rules or requests you expect them to honor. Some people ask guests to take off their shoes at the door, for example, or to avoid parking in the driveway.
The terms and conditions on your site are the same as you asking your guests to follow your house rules. They protect your investment, relationships, and everything you’ve worked hard for (just like your home!).
02 – Privacy and Cookies Policies
The privacy policy on your website outlines how your site collects and uses, or even shares and sells, the personal information of your website visitors. If you collect personal information from users — such as with an opt-in form for a free resource, a contact or inquiry form for customers, or a support ticket system — you need a privacy policy on your website.
The cookies policy on your website lists and explains all the cookies (small files that collect and store your information, such as a username and password) in use on your website. Your cookies policy provides your website visitors with information about how their personal data is being processed when visiting your site.
All websites interact with visitors’ personal data in some way, which means that if you have a website, and you plan to have people visit that website, you need both a privacy policy and a cookies policy — otherwise any revenue you generate through your site (directly or indirectly) could be at risk.
These policies are not only required by law, but they’re also required by many third-party tools connected to your website, such as Google Analytics.
So, what qualifies as personal data? The below list includes a few examples, but certainly doesn’t cover every possible form of personal data →
- Name
- Birthday
- Email address
- Billing address
- Shipping addresses
- Phone number
- Bank detail
- Social security number
- Details of physical appearance (height, weight, hair color)
And any other information stored online that may identify an individual.
In short, if you have a website that someone can interact with in any way, you need privacy and cookies policies in order to be legally compliant.
03 – Copyright Disclaimer
Remember when I said, “you prioritized a website redesign over updating your privacy policy?”
Think about that for a moment: you likely spent a lot of time and money building your brand. And now your website showcases a company name, high quality brand photography, copy intended to convert your potential customers, and a look and feel you hope helps you stand out.
And now, all of that is available to anyone who comes to your site.
So, it should go without saying that protecting your intellectual property is a top concern for any creative business owner, including you.
Should someone decide to lift a catchy line of copy off your sales page, repurpose one of your photos without your permission, or even design their entire website to look exactly like yours — you want to have legal grounds to take action against them if you choose. And those legal grounds exist in the form of a copyright disclaimer.
A copyright disclaimer communicates your legal right to own the website you created, with a goal to deter people from stealing content from that website. This disclaimer states who owns the website (that’s you) and that you’re willing and able to protect your right to its contents.
04 – Affiliate and Paid Partnership Disclaimer
As Instagram says, to play the game, you need to know the rules.
Which means, if you’re in the business of earning money for promoting other businesses, whether that be through a well-placed affiliate link that earns you commission, paid partnerships with brands, or even gifted products in exchange for services and/or deliverables, having a disclaimer that discloses so to your website visitors is essential.
An affiliate and paid partnership disclaimer ensures your business’ compliance with FTC (The Federal Trade Commission) regulations, which protect consumers against deceptive ads and marketing practices. If you are endorsing a product in any way, “your endorsement message should make it obvious when you have a relationship (“material connection”) with the brand,” according to the FTC.
This means that you are required by law to disclose your financial relationship with the brands and products you mention, link to, or promote on your site.
Magi Fisher, The Artists’ Lawyer
An FTC disclosure differs from copyright, privacy and cookies policies, though. For example, Simply linking to your disclosure in the footer or other indiscreet location on your site is not enough to satisfy FTC disclosure guidelines. While we recommend having your disclosure listed on your legal page alongside these other disclosures and policies, the disclosure must also appear before the link leading to the brand or product, and as close to the start/top of the content piece as possible.
05 – Contact Form
There are a few implications of having contact forms on your site, with the main consideration being GDPR compliance (General Data Protection Regulation).
GDPR is a set of legal guidelines for the collection and processing of personal information. The goal of GDPR is to give consumers control over their personal data by holding companies accountable for the way this information is handled.
It was put into place because some businesses collected and sold consumer information, sometimes without the consent of the consumers.
This law ensures that website visitors are notified of the data that is collected and provides an opportunity for them to explicitly consent to that information-gathering by clicking on a button or some other action. The law also requires that companies notify visitors in a timely manner if any of their personal data held by the site has been breached.
You’ve likely noticed a check box on an opt-in form on a website, asking you to agree to certain terms — this is in place for GDPR purposes.
As a business, if you have any opt-in opportunities on your site that do not comply with GDPR (in other words, do not get explicit consent from the user), you are at risk of penalty.
Here are a few examples of areas on your site to check for GDPR compliance →
- Newsletter subscribe
- Signing up to receive text messages
- Downloading a free resource
- Registering for an event
- Getting access to a gated playlist
- Prompting your customers to unlock a pricing page
- Taking a quiz
- Contact/inquiry form
Many third party applications have a standard GDPR notice included in their form-builders; however if you choose to create your own, remember that you must protect consumer data and inform website visitors how their information is or will be used. This can be tricky, so seek legal consultation if you’re unsure how to best protect yourself and your customers.
In the meantime, scan your site to ensure that every sign-up opportunity is GDPR compliant!
06 – Testimonials
Last but not least is testimonials. You probably weren’t expecting this one, as almost every website these days includes testimonials, case studies, and/or product reviews. Of course you want to highlight all the incredible things your customers say about your services or products!
But, what many creative entrepreneurs don’t know (and don’t practice!) is obtaining a release from the customer to share their review.
Magi Fisher, The Artists’ Lawyer
This release can exist in many different places, such as in the Rights section of your legal agreement with the client. A release clause typically gives your business unlimited use of deliverables for marketing, promotional, and advertising purposes — such as case studies and portfolios.
Another place this release can exist is in your onboarding and/or offboarding forms. In an onboarding form, you might ask a client if they give permission for you to share about their project on social media throughout the duration of your work together. On an offboarding or feedback form, you might ask the client if you can share their testimonial provided in the form.
You can also garner consent through any written communication with the client, such as email.
Some e-commerce sites will also require the customer to check a box agreeing to release terms when they leave their review on the site.
PS — Releases don’t just apply to testimonials! You can shop releases, such as Model Release, Guest Speaker Release, or General Liability Release in The Artists’ Lawyer contract template shop.
TLDR
In short, it’s your responsibility as a creative business owner to make sure that you, your brand, and your customers are legally protected in all ways. Don’t wait until it’s time to sign an agreement to put necessary protection in place — your legal relationship with your customers starts the first time they land on your website!
To purchase our Terms and Conditions, Privacy Policy, and Cookies Policy bundle, click here.
Use code TONIC at checkout for 15% off any contract or bundle in the shop!
DISCLAIMER: This information is made available for educational and general informational purposes only; it is not legal advice for an individual case nor does it guarantee any future result. This material may be improved upon or updated without notice, and The Artists’ Lawyer will not be held responsible for any outcomes as a result of this education. Do not act upon this information without seeking individual advice from a lawyer licensed in your state. You understand that viewing this information does not establish an attorney-client relationship between you and The Artists’ Lawyer, or the founding attorney, Magi Fisher.
ABOUT THE AUTHOR
Magi Fisher, The Artists’ Lawyer, is a lawyer and educator for artists and creative entrepreneurs. Her journey has taken her from photographing professional surfers while swimming in some of the world’s most epic waves to receiving a Juris Doctorate from Rutgers Law. Magi founded Magdalena Studios, a boutique photography studio, which quickly grew, alongside her law career, to serve over 80 couples per year. Magi now oversees the wedding photography studio and team of associates, photographs a limited number of luxury and destination weddings per year, and provides legal counsel to creative business owners. Connect with Magi on Instagram @theartistlawyer or visit theartistslawyer.com.
Related posts by Magi Fisher:
- Contract Disputes & Negotiations: What To Do When the Conversation Drags On
- 6 Must-Have Legal Documents for Photographers
Need a place to show off those affiliate and paid partnerships, here are three TONIC templates for that:
