What You Need to Know About Legal Aspect of Marketing

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Today, I have a fantastic and fabulous guest, Kerry O’Shea Gorgone, Educational Content Director at MarketingProfs.

Kerry is a lawyer, content creator, educator, speaker and host of the Marketing Smarts podcast. She is also Consigliere, Co-Host and Showrunner for Chris Brogan Media, and co-host and producer of Punch Out With Katie and Kerry talk show. She’s been helping businesspeople learn what they need to know so they can do the things they want to do.

Today we talk about the legal aspect of marketing.

In this episode:

• Apart from non-disclosure agreements, what are some other instances that legal needs to get involved in marketing?
• The role of transparency in influencer marketing.
• What are the legal ramifications for live streaming and copyrighted material?
• What is the role of technology in content monitoring and copyright protection?
• How to properly (and safely) do live streaming?
• How can marketers control their environment when they create content.
• What is the setup, process, must- do’s or don’ts for the people interested in launching a podcast or a YouTube channel?
• Examples of resolving the unexpected bloopers while creating a show, podcast or live stream.

Quotes from the episode:

“In influence marketing, there is a lack of understanding that disclosure is even a thing you need to do. People don’t understand that in some cases, an influencer has been paid to partner with a brand and promote their services.”

‘When you’re live streaming, be aware of what you have in the background, be aware of it and music that might be playing. And speaking of backgrounds, make sure you don’t have any trade secrets or personal information of your customers or anything like visible anywhere behind you.”

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To expand your marketing knowledge, check out some of my previous podcast episodes and blog posts.

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Rethinking Newsletters with Ann Handley

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TRANSCRIPT

Welcome to another episode of B2B Marketing & More.  I have a very special guest, Kerry O’Shea Gorgone, who will talk about legal and legal’s impact on marketing.

Kerry O’Shea Gorgone: Hi. 

Pam Didner:  Yeah. It’s wonderful to have you, Kerry. 

Kerry O’Shea Gorgone: Thanks. It’s so good to be here. 

Pam Didner: Yeah. So I know that you are, uh, you have a legal background. You also managed a podcast for Marketing Profs. So can you tell us a little bit more about yourself and what you do?

Kerry O’Shea Gorgone: Sure. So let’s see where to start. I graduated first in my law school class in 2000. And before that, I had gotten my MBA, so I was already kind of ready, ready to rock. I practiced for about four years. And then I got, I did litigation, intellectual property, uh, entertainment law, a lot of other things too, ’cause that’s what you do. 

Pam Didner: That sounds interesting. The IP and entertainment law. So do you work for a law firm, or where you kind of working for a media company?

Kerry O’Shea Gorgone: Well, first, I clerked for the New Hampshire Superior Court. So I saw kind of everything. And then, during law school, I interned with many different types of lawyers– municipal law, entertainment, law, um, nonprofits–I did all kinds of different things to try and figure out the kind of like where I wanted to be. And I still didn’t know. So that’s why I clerked you kind of get to see everything you work for. The judges, you research, you draft opinions, you sit in on hearings. So I did that. And after that, I did litigation for like two years.

And so when you do litigation, I mean, that’s all types of disputes, so white-collar criminal, not white-collar criminal, um real estate, even retirement stuff, which I was like, “Oh man, I don’t want to get into that tax law real estate.” Like I just everything. 

Pam Didner: So, so you have a very much, uh, I would say broad, legal background.

Kerry O’Shea Gorgone: I do. But then I got out of that to go into teaching because I wanted to have kids. And I was like, eh, I know many female lawyers, a lot of lawyers, in general, have kids, but I was just looking at the way things were at the big firm and even a smaller firm. I felt like it wouldn’t be possible to drop everything when my kids needed something because I’d already been dropping everything when a client needs something. And I was like – I wanted to be there for my kids. So I switched out and got into teaching, which was a better lifestyle. So I taught marketing law. I taught business law. Then I moved over into teaching, like intellectual property. So copyright and trademarks and licensing and stuff like that. 

Pam Didner: So why did you get into marketing? 

Kerry O’Shea Gorgone: So well, MBA to begin with. So I already had worked in marketing before. And every time I would work at a law firm, I’d be like, “Hmm. Their website like kind of sucks.” Or like I would get into more creative things. Like I made a video yo for this reception that one of the firms had, I was just like, I was always drawn to the more creative work. And it got to the point in practicing law where people would come in, and they were doing cool, interesting things. And I’d be like drawing up paperwork, you know, for their business. I’m like, “What they’re doing seems so much more interesting (laughs).”

Pam Didner: I understand. I was a CPA, so I kind of like a CPA-turned-marketer. But mine is not very intentional, if you will, more of a twist of fate. One of my managers went to marketing operations, and he pretty much asked me if I want to join him. And that’s how I tap, or kind of cross that chasm, and I went to the marketing. So yeah, it’s kind of like both of us have a completely different background. And then we ended up, um, I guess in the dark side (laughs). 

Kerry O’Shea Gorgone: I don’t know, it’s arguable, which side I came from and which side I went to, but I started. I was teaching in the university where I was teaching, didn’t want to pay for, like, I was teaching marketing and legal aspects of it, but they didn’t pay for professors to continue education or go to conferences and stuff. So I started writing and doing other kinds of content like Marketing Profs for other major publications in the marketing space to get a press pass.

Then, I use the freelance money I made to fund my travel. So I started doing that. So that’s how I kind of, like, I kind of accidentally formed this big network of marketers just by going to thing after thing, after thing to cover it. And I didn’t even that wasn’t like my intention. I wasn’t like, “you know, who I wanna meet… “is all these people. It just kind of happened.

Pam Didner: Okay. That’s wonderful. So speaking of your legal background, and this is the first time I got it. I call a lawyer in my podcast, and my experience all of us have experience with, uh, their legal team, especially if you work in a corporate world. My experience with my legal team usually was when I worked. It’s always about NDA is always about always file messaging approval.

And another thing is disclosure. We have to do any kind of disclosures technology disclosures with our potential customers or our existing customers, and a lot of that wording needs to be approved by legal. So can you tell us a little bit about the other instances that legal needs to get involved in marketing?

Kerry O’Shea Gorgone: So influence marketing is a big one because we know influence marketing works. It’s more popular now than it ever probably has been because people need people they trust to recommend products and services, even in the B2B space, because those are significant, you know, uh, purchases that sometimes take months in the making.

So in influence marketing, there is a kind of a lack of understanding that disclosure is even something you need to do. And so a lot of influencers just don’t like, they’ll talk about, “Hey, I love this cool thing.” Or, you know, “I’m doing a collab.” And meanwhile, people are like, I don’t know what that is. They have no idea. So they don’t understand that maybe an influencer has been paid to partner with a brand and promote their services in some cases. Or that maybe they’ve been brought to a conference and that their expenses were paid. 

The FTC, the federal trade commission’s gotten much clearer over the last probably seven years. They, at first they would say, “you’re not disclosing well enough. #SPON is not good enough,” but they didn’t say like, what would be good enough? So now they’re getting a little clearer about it, to where they’re saying, “if you’re going to do videos, you have to say in the video and have it in the text visible that you’re working with the brand in some way.”

Pam Didner: So this is a sponsor. The specific content is sponsored. The speaker is sponsored. You have to make that very clear.

Kerry O’Shea Gorgone: Right. Now that doesn’t mean you have to take like a thousand words of legalese to do it. I could just say, “Oh, Adobe Max gave me a pass to the event, and you know, I’m partnering with them in exchange for money to promote their event.” Like, you can just be clear about it, or “they gave me an all-expense-paid trip to Fiji to review this new resort.” Like whatever it is, just say it. 

Pam Didner: Yeah. Be transparent. Be transparent.

Kerry O’Shea Gorgone: Exactly. And you don’t have to do it every time. So many times in videos, people would put in the description, and they would never say it in the video. And of course, that’s not good enough because many people don’t read the description. And then if you just do disclosures at the beginning of the end, as some people miss it, cause kind of pop in and pay attention here and there. So you’ve got to both say it and show it. And ideally, like at intervals in your video.

Pam Didner: Got it. Another thing is live streaming. You mentioned the live streaming also have some sort of legal ramification. Can you elaborate a little bit more? 

Kerry O’Shea Gorgone: Sure. You have to be careful about what you’re picking up. So I’ll give you an example. Copyrighted material, many companies now have bots in place that monitor both visual and audio content.  Chris Brogan and I were interviewing for the backpack show to documentary filmmakers who worked on a documentary called “Console Wars” that’s out now. We showed the trailer on YouTube, part of it, like on silent mode. So you could just see it while we spoke to the directors about it–there were two co-directors. And while we’re talking about it, that’s, that’s, it that’s all that happened. And CBS issued an immediate takedown, and it froze it for people who were watching on Facebook, on Chris’s Facebook. 

Now we were streaming to multiple destinations. The other destinations were fine, but within minutes, I mean, they, they had issued it. And so the director called CBS and was like, “yeah, you need to put that back.” And they put it back. Like, they’ve lifted the… 

Pam Didner:  But they watch it like a hawk. 

Kerry O’Shea Gorgone: So the technology is, I think they’re using that’s the problem. I think it’s not humans. That would be like, “Oh, they’re promoting our movie.” It’s a bot that’s like, “Hey, that’s our movie and shut it down.

 

Pam Didner: I see. So they have the technology behind it to monitor it. And if something like that happened, you need to understand whether a bot is talking or is a lawyer talking, and then you need to work through it to take care of it. 

Kerry O’Shea Gorgone: You need to appeal it. Like we were very lucky. So we had the director on we’re interviewing them, and we said, “this is stupid. Like we’re trying to get people to watch the movie.” And he’s like, you’re right. And he called, and they straightened it out. But if you don’t have that access, then you’re, you’re going to have to deal with it.

 

Pam Didner: You will have that problem dealing with it because there is no like insider to take care of that issue. 

Kerry O’Shea Gorgone: So I would say, don’t use anybody else’s copyrighted content in any capacity for branded things that you’re working on. Like for your personal use, you want to do a live stream about something, you know, that’s a different ball game. Still, when I’m representing brands, I make very sure to carefully avoid other people’s copyrighted material, whether it’s just something you see like a picture or something you can hear. So when you’re live streaming, now you can screen share and stuff, be aware of what you have in the background, be aware of it and music that might be playing.

And speaking of backgrounds, like make sure you don’t have any trade secrets or personal information of your customers or anything like visible anywhere behind you. 

Pam Didner: Got it.

Kerry O’Shea Gorgone: People blow you up on high definition monitors and stuff, and they can see everything. So you might be streaming from a phone, and you think, “Oh, it’s fine. You can’t read anything behind me”, but when you blow it up, you can see everything. 

Pam Didner: All right. Now you just scared the heck out of me! “Should I do Livestream? Should I not?” 

Kerry O’Shea Gorgone: Do Livestream. But if you, how about at first, like you don’t just whip out your phone and start doing it, like plan it, like you would plan a photoshoot. So take a look around and be like, do I have any confidential client, you know, stuff displayed? Or do I have, you know, any like potentially personal information that I don’t want public? Do I have that there?

Also, do it from a place you can control like you’re in your office. That’s pretty safe. If you’re like outside, that’s a whole different thing. Then you have to post notices and let people know that you’re streaming and get a permit. So you, you can’t control other people. You need to be able to control your environment as much as possible when you’re live streaming, especially if there’s going to be shenanigans (laughs).

Pam Didner: Got it. Well, that should not be an issue for me. Would you already have the time when I do live streaming is pretty much in my office, and you pretty much can see the background right now? So, yeah. So with that being said, I would like to ask you another question because both of us have been doing podcasts for a little while. Do you have anything to share with folks who are interested in launching a podcast or a YouTube channel, any kind of processes? What is the setup or must do’s or don’ts love to hear your feedback? 

Kerry O’Shea Gorgone: Nope. Got nothing. (both laugh)

Pam Didner:  Thank you for not sharing, Kerry! I’m just kidding.

Kerry O’Shea Gorgone: No, it’s so, so easy now. There are USB microphones. I have one here. I have a few different ones. Plug it in. Your audio is the most important thing. 

Pam Didner:  I think so, too. I agree with you. Yeah. 

Kerry O’Shea Gorgone: And I use noise-cancelling headphones, even when I’m doing video, because I need to hear if the guests’ audio is problematic in any way. And so this is the best way to do it. And I just like to deal with the fact that I have headphones on in every video. I don’t care. 

But as far as process goes, I mean, first, you have to kind of think about what you want to talk about. What’s going to make the show different, and how it will help promote your business without being, you know, about your business. And many people skip that step, too, like having to do a podcast, and they don’t think about how it will serve them or anyone else. So kind of that comes first. 

And then, once you’ve got that figured out, you choose the right names of any of mine except “Punch-Out.” Uh, we try to choose the right name and make sure it’s not trademarked by somebody else, that kind of stuff. Cause that’s a pain too. 

Um, after that, you just gotta kind of figure out your format. Do you want to do it just for you, which is tough? Uh, do you want to have a co-host? Do you wanna do guests, guests add a whole other layer? I book two guests a day for The Backpack Show. So that’s like a lot of logistics there. 

Pam Didner: Yeah, coordination, schedule. Make sure everybody’s they can attend at the same time. Yes. 

Kerry O’Shea Gorgone: Okay. Well, this is very easy. So let me tell you this much. If you’re going to do a show, live shows make it pretty simple. So you have some additional complications and pressure because it’s live, but there’s no back and forth about time cause you’re like, “well, we go live at 10:00 AM Eastern on weekdays for the backpacks. It’s yes or no?” You know, you can move days, but we can’t move times. That’s how that goes. And then the editing is like non-existent pretty much cause we go, “well, that’s done and it’s out and it’s the way.”

Pam Didner: It’s pretty much cost-effective. Right. It was like, “we do a live show, rain or shine. And if it goes well, great. If it doesn’t ‘, Oh, well'” you know.

Kerry O’Shea Gorgone: But it minimizes post-production because there is none. So you put your work in, in the front end with planning and logistics. Then the back end you can spend on promotion because you’re not putting in quite so much work, as far as like editing, I used to edit for hours, the audio and I have at times had to do it for “Marketing Profs,” where we have a guest on who’s maybe not done a lot of speaking. 

Pam Didner: Yeah, you have to edit that out. I mean, I still have that. I have someone else doing that job, because I’m not very good at editing. OK, I can edit in my PowerPoint. That’s probably the extent of editing that I would do.

Kerry O’Shea Gorgone: I taught myself. So I wanted to host the “Marketing Profs” podcast. And the way that it happened was Ann Handley mentioned to me–I was teaching and I had guest speakers in–and I told Ann Handley, who I was friends with that, “Hey, you like, you know, interviewing experts and authors and stuff. That’s been fun.” So when their podcast hosts left the job in like 2013, she asked me to do it. And I never had, like, I, I mean, I had run a podcast, like in 2005, it was a completely different thing. And I didn’t do the editing for it to the extent that there was any. Yeah. And, uh, she said, can you do it? And I said, yes. 

Pam Didner: Yeah, you say yes first, and then you worry about the details. I agree with you. That’s how I went to. That’s how I roll. 

Kerry O’Shea Gorgone: It’s getting easier and easier, and the technology now even as is easier and easier to use. So the barrier to entry as far as podcasting has never been lower. And even for live streaming and video, I mean, it’s even easier.  

I use Streamyard, and I’ve been using it for Marketing Profs and for Chris’ show since probably March. It’s really easy to use. 

Pam Didner: So do they have a number of the channels that you can stream to? 

Kerry O’Shea Gorgone:  They do. I want to say it’s like eight destinations at once, maybe. 

Pam Didner: That’s not bad. That’s pretty good. 

Kerry O’Shea Gorgone: It depends on what you have. They have a free plan. Then they have a basic plan, and they have a pro plan. And so we have the pro plan because we want to have as many destinations. 

Pam Didner: You want to maximize the number of channels. Yeah. 

Kerry O’Shea Gorgone: But it’s so easy to use. And it’s so slick. Every single person who comes on it’s like, “what is this?” “It’s streamyard?”

Pam Didner: Okay. I will check it out. I would check it out. Hey, another thing I would like to ask you to wrap up. You’ve been running Marketing Prof’s podcast for about seven years. What is the most hilarious moment you encounter in your podcast?

Kerry O’Shea Gorgone: Oh boy. Let’s see. So there was one time I was talking to a guy, and I heard violin music playing in the background. (Pam laughs) And I was like, “is there violin music in the background?” And it didn’t sound like good violin music. I should. Clarify. It sounded bad. And he said, “Oh, you can hear that? My wife’s teaching a lesson.” I was like, “yeah, I can hear that.” (laughs) So then he got up, and he can hear him like go into another room and stuff. He’s like, “can you still hear?” And I’m like, “Yep.” So that was a good one. 

Another one was, I was talking with Amber Nasland once, and she has pit bulls. It’s like, she’s posted about them and stuff. She adopts pit bulls, and she had a couple that like decided to get into it, I guess, right at the wrong moment. So we’re talking, and it’s like (makes the sound of dogs growling at each other). And so I made like a little Easter egg at the end to where she’s saying, “Really guys? really?” Yeah. I was just talking to them. It was really funny. So there’d been a couple of fun ones.

Pam Didner: “You are grounded! Go to another room! Go to the corner!” 

Kerry O’Shea Gorgone: Exactly. 

Pam Didner: Well, that’s a very good story. I love it, love it. So, um, tell our audience where they can find you and how you can help them? 

Kerry O’Shea Gorgone: I am @KerryGorgone on Twitter and Facebook and LinkedIn and just about an Instagram, just pretty much everywhere you can find me. 

Pam Didner:  What about TikTok? Are you on TikTok?

Kerry O’Shea Gorgone: No, I have it, but like, I don’t use it cause I don’t—

Pam Didner: Yeah, I don’t either (laughs)

Kerry O’Shea Gorgone: I don’t want to. Um, and then Marketing Profs, obviously marketingprofs.com and The Backpack Show is at ChrisBrogan.com.

Pam Didner: [00:17:12] Very good. So I usually ask my, uh, guest one silly question. What is the most useless talent you have? Like something that you are so good at, but, you know, useless.

Kerry O’Shea Gorgone: Oh, man. I to say, well, like it’s probably useful in limited, limited contexts, but I’m good at coring apples. I can make an apple slice just perfectly. Like I can make that happen for you, but it’s my kids don’t eat a lot of apples. So it comes in handy, all like almost never. So. 

Pam Didner: I hear you. I get it. 

Kerry O’Shea Gorgone: I speak a tiny amount of other languages. Like I never dive deep and get fluent in another language. But I have a teeny bit of Czech, Spanish, German, Japanese, like just tiny, tiny little, amounts of it (laughs) 

Pam Didner: I don’t consider that useless. It’s pretty, usually comes pretty handy as when you talk to, when you talk to, um, when you meet somebody, like when you travel. Right. Uh, from that country, you can always like, say something. 

Kerry O’Shea Gorgone: I could hunt up the appropriate greeting. I could ask for directions. 

Pam Didner: Exactly. And people are immediately drawn to you and say, “Oh my God, you can say that? That’s awesome.”

Kerry O’Shea Gorgone: As long as they have no follow-up questions whatsoever. (Pam laughs)

Pam Didner: “Now, let’s be talking in English!” 

Kerry O’Shea Gorgone: (says something in Czech), I’ll be like, “I’m American.” That explains everything else about me. 

Pam Didner: Well, that’s fantastic. Hey, it was wonderful talking to you, Carrie. You are a fantastic guest, and you brought a lot of insight into legal’s impact on marketing. Make sure everybody understands that if they are doing specific marketing tactics, like podcasts, live streaming and influencer marketing, what are the things they need to pay attention to? And also love, love, love, hearing your journey in terms of making that transition from what you did uh, have on legal, uh, to be, uh, you know, a very savvy marketer. Well done, Carrie. 

Pam Didner: Thanks for having me.