← Maximum Lawyer
Maximum Lawyer
Content That Converts: How to Build a Social Media Strategy for Your Law Firm with Rob Freund
01:03:45
Loading summary
Transcript84 lines
- [00:03]
A
It's beginning to become a tradition. If it's January, Maximum Lawyer is heading to Scottsdale to Mastermind. January is the perfect time of year to step back, assess where your firm is, and create a strategic plan for growth. This Mastermind is designed to give you a jump start to make sure 2025 is your most successful year yet. Our day and a half events combine business training and hot seats. On day one, you'll learn how to use AI and automations to drive growth with the latest tech innovations for law firms. Followed by Mastermind Hot Seats on day two, where you'll receive tailored advice and strategies on what to do next. You'll walk away from this event with an action plan created from personalized solutions that you can implement immediately. To learn more about this event and grab your ticket, head to maxflawevents.com.
- [00:56]
B
This is maximum Lawyer with your host, Tyson Mutrix.
- [01:05]
A
Rob, welcome to the show.
- [01:07]
B
Thanks for having me.
- [01:09]
A
So I've got. I got some fun things I want to ask you about. I think the, The. The first thing I want to get to is you did a. A podcast interview with Andy Frisella back in October of 21. What was that like? That was. That's. I know that may be kind of maybe out of left field, but I'm very curious. Andy is a, Is a, is an acquired taste for some people. He's definitely different than most hosts that you would go and talk to. So what was he like?
- [01:41]
B
That was an awesome experience, honestly. Andy and I initially connected through Instagram. Somehow someone had shared my content with him, and he shares a lot of. Or at the time, he was sharing a lot of content about his car collection and the cars that he's into. And I, I sent him some message commenting on one of his cars, and we started talking about cars and stuff. And then he asked me if I wanted to come on the show, and that's just how it happened. You know, obviously he has, he has a huge platform and I like chatting with him on Instagram and I thought that would be a cool opportunity to, to go to Missouri and see what his operation is all about and get to meet him and, you know, have. Have a conversation on a pretty big platform. So I was extremely impressed by everything about that trip and about the podcast and the way he runs his business and. Yeah, I mean, he's, he's an opinionated guy for sure. Definitely a loud voice, but he was a complete pro and the way he ran his business there and the way that he's built a culture of Business at his headquarters really, really impressed me. I could tell that, or at least, you know, from what I saw from the people who worked there and the people I got to meet and the people who helped him with production. Everyone there really enjoys what he's about and the way that they work. And he was nothing but gracious to me. And there are a couple of topics that I told him in advance, like, hey, you know, I know you've been talking about this a lot. I don't really want to talk about that, if you don't mind. And he was, of course, you know, totally cool about that. And we had a good chat about social media and the FTC and the law and all of that. So, yeah, I mean, I, I can't say I agree 100% with everything that he, all of his takes on every issue, but he, he was a great host and I really enjoyed that opportunity.
- [03:41]
A
Nice. I gotta ask because you went and saw him. Did you do 75 hard? Have you done 75 hard?
- [03:47]
B
I haven't, I haven't done it. You know, I can respect the program, of course, and it's called hard for a reason, but it's not something that I feel like I need to do necessarily. You know, I stay pretty active and I'm happy with my routine. And it also takes up a lot of time and I guess that's part of the point is seeing if you can build that for 75 days. But not something that really appealed to me then or now. So now I haven't done it.
- [04:15]
A
Yeah, I've talked to some other people. I've done it. My wife, my wife and I did it together. We did all three phases, like, so we've done all of it, but it is not sustainable. It's just one of those things where you, it's, it's not like a, it's not a lifestyle. It's, yeah, 75 days for a reason. Yeah, it's a challenge. Yeah, yeah, it's pretty cool. So I was going through like whenever I go interview people, I, I like to go through and look through their social media and I, I, I know you from X because I follow you on X. You'll, for anyone that doesn't follow you, they should. It's your first and last name law, right? Is that what it is?
- [04:51]
B
Yeah, yeah, yeah.
- [04:52]
A
Okay, so I think it's really cool. But I looked. So just on August, I picked two random days. Okay, August 13th you posted on X seven times. On the 12th you posted 11 times. And so I just wonder like, you you and you post some really cool material. Like where do you find the stuff that you post? Because it's really cool.
- [05:16]
B
Yeah. So what I, what I try to do and I initially started doing this on Instagram and moved over to Twitter. And I can talk about why I did that a couple years ago, focusing on that platform more. I still call it Twitter, I guess just out of habit. But what I try to do is post a mix of like legal information that current and potential clients that it's relevant to their business, that they might learn something and be able to use it. And I also like to include like entertaining posts about current events. So if there's headlines about a big brand or a celebrity or something that's juicy that I think people will be interested in, I like to throw that in there too. And that's sort of like more entertaining content, while still usually legally related, tends to do better in terms of views and impressions and stuff. And I figure that's sort of like casting the wide net and then the actual practical stuff. Maybe fewer people will see it, but it'll be more useful to those people who are in the wider net that might become clients or just, you know, what I focus on in my practice could be useful to them. And the way that I the sources of like how I become aware of the things that I then post about. There's a series of blogs that I follow, a few of them by big law firms, a couple by mid sized firms that cover advertising law in particular. And I check those every day. One because I want to make sure that I'm not missing anything that my clients might need to know about. But also like they point me to cases that maybe I'll want to dig into and that I think a broader audience might be interested in. And then I'll use Google Alerts and Lexis Alerts for keywords for cases that might be within the realm of what I cover. So I have keywords for things like the word influencer, E commerce, likeness, former price things, things like that. And I check those every day. I mentioned The Google Alerts Law.com has a service called Radar that basically sends you a digest of cases filed every day that you can tailor by practice area or subject matter. So between those things there's like a stream of updates, I guess that I'll check out on a daily basis and see what's going on and what I might think or what I think might make for some engaging content. That's most of how it comes up. Other times it'll be a client Ask me a question that it's not the first time I've been asked that, and it comes up a lot. And I figure, well, other people might want to know what the answer is to this. Obviously, I'll make it generalized and not a specific question. But, yeah, things come up over and over again. Like, if there's new. If there's some new question about AI in advertising that I keep getting, I'll think, all right, I've already spent the time looking into this. I'll just repackage it into a piece of content. And that tends to do pretty well, too.
- [08:12]
A
You had mentioned that there's a reason why you switched over to Twitter. What was the reason? I'm really curious.
- [08:18]
B
Yeah, there are a couple of reasons. One, Instagram's whatever, the algorithm switch or, you know, it's always updating and it's hard to really tell what's going on under the hood. But my videos were getting less and less reach and that was frustrating. And I realized or learned that most journalists, even though they many people have fled X to go to blue sky or whatever most journalists are, the majority of them still focus on Twitter and that's where they hang out. And I realize that you can get a lot of earned media inbound requests if you're posting stuff on Twitter and X. And when I started doing that more, I would get a significant, significantly higher volume of journalists and reporters just reaching out to me. I'm not pitching anything, but they'll say, you know, I saw your tweet about whatever FTC headline or this case or this issue, I'm writing a piece about it. Can we get some quotes or an interview? And like, the number of times that happens on Twitter, like, dwarfed the number of times that would ever happen on Instagram. And that helps me a lot. It's good to get those sorts of quotes and get in the media. And then the other reason is I just got a little bit lazy. It takes more time and investment to make a video, especially at the pace I was doing them on Instagram. Whereas it's a lot easier to fire off a thread on Twitter. And I can go a little bit deeper on a subject in the context of a thread versus just an Instagram caption. So that was the combination of why I'm focusing more on Twitter Now. The plan is to switch to focusing on YouTube or like to add YouTube to the mix. But yeah, Twitter for earned media is amazing.
- [10:08]
A
Yeah. It's interesting that you said the thing about the Instagram, because we were doing this Blitz, where we were doing. We were recording videos for every single day, which is. It takes a lot of work. I mean, that's a ton of work. It's. It takes. I mean, there. We had a whole. Have to have a whole machine that's building it. And we. So we had the same thing where we had this massive spike and we're like, oh, this is where we are. Like, this is our level. And then we, it plummeted and we're like, we're not doing anything different. Like, this is. We're doing the same stuff. What happened? And we're like, this is just not. The juice isn't worth a squeeze. And so that's how we get. That's why we got out of it as well, because it's just. I mean, it's like we don't. We don't completely neglect it, but we just don't put what we put into it before. It's just. It was, it was pretty frustrating.
- [10:52]
B
Yeah. And I hear that from so many people, especially about Instagram. And I don't know if it's like they're focused more on reels and a certain type of reel or what have you, but, like, playing that guessing game all the time is. Is really frustrating, especially when you have, like, no way to. I mean, you can never really predict how any given video or whatever is going to perform, but it's like, it's so hard to predict what will. What works on Instagram. It's just not worth the investment. Or at least it wasn't to me at that time.
- [11:22]
A
No, I'm with you. Whenever it. It comes to posting on, on Twitter, X whatever you want to call it. The. Is. Is your goal. Is it to actually try to get onto some of these other platforms for them to, to interview? Is it. Because I, I. If that is the approach, I think that's, that's an interesting way of doing it. I think that's pretty cool.
- [11:42]
B
The main goal is to try to get business. I'm doing it to try to get consultations booked and connect with people who will become clients at the same time. It's not like I'll draft a tweet or a thread differently if I'm hoping that some reporter will reach out, because honestly, I can't really predict what they will reach out about. Sometimes it's a really, really specific, like a technical legal issue. Somebody's just doing a report on consumer arbitration clauses or something. Sometimes I can kind of guess, like, all right, big headline, you know, new FTC rules rolled out or something. And that might be of interest, but I don't, I don't really tailor the language based on the result I'm trying to get. It's just all of those things happen at some point when I'm posting on Twitter.
- [12:35]
A
Who are your typical clients?
- [12:38]
B
It's primarily consumer brands, especially those that have a. Where E commerce is a big part of their business. And then it's marketers and advertising agencies, a few talent agencies, and then maybe like 10% of the client base is individual talent and online creators.
- [12:59]
A
So are you representing sometimes like influencers themselves or is it whenever you're dealing with influencers or is it more. You're dealing with the companies that are hiring the influencers?
- [13:08]
B
It's much more often the company that's doing the hiring occasionally. I was representing more individual influencers a few years ago, but it's more rare now. And I think that's just because my rates have gone up. And most influencers, understandably, like, getting legal advice is not really their primary concern. And, you know, they get sued less than businesses do. So there's, there's, I feel like in. Unless an influencer is in the middle of some kind of problem or maybe their agent or somebody on their team has recommended that they seek legal counsel there, it's rare that they're going to take that initiative and try to go talk to a lawyer. So, yeah, it's. When legal issues about influencer marketing come up, it's far and away more likely that I'm working with a brand or an advertising agency that's acting as an intermediary there.
- [14:05]
A
Yeah. Are you doing more of the preventative where let's make sure you stay out of trouble, or are you more on the back end where you've gotten into trouble now, let's get you out of this. Or both.
- [14:17]
B
Yeah, it used to be getting people out of trouble. My background's in commercial litigation. I was still litigating for the first few years of having my own practice, and now I try to litigate as little as possible and refer most of it out. So, yeah, most of what I'm doing, especially in the influencer space, is helping brands avoid the kinds of issues that can get you in trouble, whether that's through coming up with compliant advertising practices or reviewing an ad that they might be thinking of running. And then like on the, on the contract drafting side, making sure that your agreements with influencers or with an agency that's going to hire them have the kinds of protections and clarity that you need so that you can hopefully avoid the kinds of cases that I used to litigate.
- [15:00]
A
I'm really curious about like some of the legal pitfalls that some of these companies might fall into when it comes to influencer marketing, because I'm sure that there's a ton. But I just, I mean, it's not my area loss. I just don't know. I'm so I'm very like, really curious, like, what are some of the most common things that they do that get them in trouble?
- [15:16]
B
Yeah, the two sort of categories that generate legal issues, I guess you could say, are compliance with truth in advertising rules, whether that's from the FTC or similar state laws or, you know, false advertising claims from a consumer or a competitor or something like that. And then on the other hand, you have intellectual property issues. So those, I guess in terms of like the frequency of litigation, the IP issues are probably more common. Like you have an influencer who is posting on behalf of your brand or as part of some campaign, and they go to the TikTok General Music Library and use like a Doja cat song or something, and then your brand is sued because that's a copyright problem, or they're, you know, taking photos or videos from someone else or something that they haven't cleared the rights to and that becomes your brand's problem. And then on like the other side of the coin there that I was talking about with advertising issues is FTC disclosure requirements. You know, the FTC has been pretty clear about what you have to do and what types of relationships trigger the obligation to tell the audience, like, hey, this is a piece of sponsored content. But, you know, a lot of brands still don't want to do that. And, and, or they, they have this impression that the only way to comply with, with those rules is to make things look like, feel too much like advertising, which then kind of defeats the purpose of using an influencer in the first place. But what I'll try to do is understand where the client's risk tolerance is and come up with a strategy to have them land on that area of the spectrum they're comfortable with, you know, and still have a compliant campaign that works aside from the ftc, you can have problems if you're a brand where, and influencers making claims about your product or service that you can't substantiate or, you know, even if they're true, they might be misleading in some way. And when, when you have a relationship between a brand and an influencer, any kinds of claims that that creator makes regarding your business, the Law is going to treat those claims as though you're making them yourself. So if you're like a supplement brand and you have an influencer talking about how, you know, creatine cured my cancer or something in an extreme example that is the same effectively as though you said that on your website, our creatine cures cancer. So you need to as the brand have, you know, of course good contracts in place with those creators, but also educate them in terms of what they cannot say and how they should be crafting their language and then having compliance and monitoring programs in case somebody gets way out of line.
- [18:07]
A
So I am smiling because I remember I was, I'm not going to mention the brand, but the back a long time ago I was in BNI and there was, I felt like in every BNI group there was this brand, it was a supplement brand and they would make the wildest claims. The lady in particular I'm thinking of, she would say now they can't tell you that it this cures cancer or this cures this or this cures that. But I can tell you from my experience that I had cancer and I had this and I, She's, I swear she said she had cancer and that like she's now cancer free. It was all like in the same sentence and like, holy crap. So in a situation like that is now she is a rep that's selling that supplement. Is that something where she. Would she be considered an influencer in that situation or is that. How does that work? I'm assuming not, because she's probably getting some sort of. She's working for the company in some capacity as like a, some sort of. I don't know how that works, but I guess how does it. What makes you an influencer and what doesn't make you an influencer?
- [19:14]
B
What, what makes you an influencer? Like apart from triggering some kind of legal obligation? I think, I don't know that there is really a good definition as far as the FTC is concerned. Anybody is potentially an influencer. Whether you have no followers or you have 2 million, all the same obligations apply. It's about the nature of the relationship and not necessarily the activities of the person. So the word that the FTC cares about is are you an endorser? Are you making an endorsement? If you are, do you have a material connection to the brand that you are endorsing? If you do have that kind of connection and you are making an endorsement, then those disclosure obligations apply. And if you have that kind of relationship then and the company has you know, the. Some ability to control what's being said, then the claims made by that representative or that endorser can be attributed to the brand. I don't know that I've looked at a case where the only issue where claims are being made with somebody at like a networking presentation. Certainly if that person's an employee, then those are claims made by the brand. But assuming that they had some relationship, whether it's financial or employment or either even familial with, with the, like the owners of the brand, if that connection is there and they're going out and talking about their personal experience, then probably that will be treated as a claim made directly by the brand. The, the cleaner example where the FTC has provided a lot of GU guidance is like if you have customer reviews or testimonials, whether it's by completely independent customers or influencers. And suppose somebody on Amazon says, you know, I took this and now I'm cancer free. If the brand showcases that review on their website or in an ad or even on a story on social media, then that claim is attributed to the brand itself. It's like, it's like, like they're adopting it and it's as though they're saying it directly the same. If you're showcasing some kind of exceptional client or customer result, there's a misconception that, you know, suppose you sell some kind of weight loss supplement. Most people maybe lose one pound in 30 days, but somebody lost 30 pounds in 30 days. If you're going to showcase that person's testimonial as a brand and you want to highlight it, and that's not the typical expected result. It's not enough to just say results not typical. The FTC requires that you disclose what that typical expected result is and that you have substantiation for that typical expected result. And so there's been a lot more attention to those sorts of claims not just in like the health space, but in business coaching claims and business opportunities and things like that. And there's been a lot more regulatory attention to that kind of thing.
- [22:15]
A
So let's say that because I want to talk about controlling what the influencer says. So let's say there's a law firm, they go out and they hire someone like Jake Paul who can be a little bit of a wild card and might say, might say exactly what you want them to say, or might say a bunch of other things. I guess what could the. Because you're seeing this more when it comes to athletes and law firms hiring athletes or you, one of the local law firms in St. Louis hired Judge Joe Brown to do some advertising. What are some things that they can do so the company or the law firm, whatever, to, to protect themselves if, if the influencer goes off script a bit?
- [22:56]
B
Yeah, so what, what, what the FTC wants a brand to do. And this guidance has more to do, or was, I think more directed at the disclosure obligation. But the FTC wants to see that you have trained your influencers and endorsers regarding what their legal obligations are in terms of disclosure, disclosing the fact that they have that relationship, and then that you have some kind of monitoring program in place, like recognizing that if you're running a massive TikTok affiliate program and you have 10,000 affiliates or something, you're, you're not going to be able to look at every piece of content. But if you can show, in the event of some kind of inquiry, like look in our contracts, we make clear what their obligations are, what they need to do, what they can't do. We have the ability to, and we do take action when we find problematic content, whether that's having somebody reshoot it or repost it or terminating our relationship with that person. And we are periodically trying to sort of spot check the content that's out there and review it for problems. If you can demonstrate that you're doing those things, then as far as a regulator is concerned, you fulfilled your obligation. Because they recognize, like, it's impossible to check out every single piece of content that's out there. But if you run into problems in the event of an investigation, if these issues come as a surprise and it doesn't look like you've thought through them and that you don't have any kind of plan in place to try to ensure as much as you can that what's out there is above board.
- [24:33]
A
I bet that's happening every single day, all the time. Because that's probably my guess is that most of these companies, they hire them without any thought. And, and, and so that is, I mean, I don't know what percentage you put on. That's probably 95% or more of, of the influencers that are working for these businesses. Don't you think it's crazy?
- [24:52]
B
Yeah, I mean, yes, absolutely. And, and a lot of brands, you know, even, even sometimes I'll work with clients, clients that really want to push back on, even telling the influencers that they need to disclose their relationship. Like, still, even though, you know, it seems obvious to me now, having focused on this for a very long time, but you know, I'll still get that on the brand side. And the odds that influencers are reading their contracts and really digesting them and understanding all their obligations is. I'm sure there are a few out there depending on like what kind of product they're promoting that will do that. But most of them, they want to get the product, they want to get the money and make the content and that's it. So yeah, I mean we have all these requirements and legal obligations and there's still a ton of non compliance and there's a number of reasons for that for sure.
- [25:45]
A
Yeah, I want to shift gears a little bit. I want to talk a little bit about. Because you mentioned copyright, I don't know if you specifically mentioned copyright, but you mentioned music before. What are some ways. Because you are seeing a lot of law firms are doing a lot more marketing when it comes to video and everything and YouTube it seems, and I'm sure the other platforms do a pretty good job if there's copyrighted music. They get pulled down pretty quickly. But what are some other things that firms should be doing to make sure that they don't run into any copyright issues?
- [26:18]
B
Yeah, if you're thinking about music in particular, just ensure that you've done some basic rights clearance on whatever sound you're using. There are a number of service providers that have pretty robust databases and libraries of royalty free music that you can draw from. And maybe you don't need to have that top 40 hit behind your video. And I recommend using a service like that where you don't really have to think about rights clearance issues for the audio that you're including. It seems like kind of a simple answer, but that's really it. Like if you want to use a hit radio song behind your video, you're going to run into problems, whether it's just YouTube's content ID flagging you or an infringement lawsuit from whoever owns the rights to it. Yeah, I mean it's easier I think to mess that up on platforms like TikTok and Instagram that have those libraries with popular songs available. Depending on what type of account you have, there is still I think a lot of confusion about whether like which libraries are okay to use. And well, this wasn't really an ad. It's just me sort of posting on my, on my business's page or like I was talking about with influencers. Well, you know, they don't have a commercial account so they have access to it. So it must be okay. Any kind of post on a business's page and with very rare exceptions is going to be, you should assume that that is advertising, either sponsored or promotional content, depending on how the platform defines it. And that means like you cannot use the general library. You should, you should use either the native commercial music library that those platforms offer or use some third party provider that has done rights clearance for their own library.
- [28:07]
A
Let's say you hire like a local musician that puts together some music for your video. And we've done some things where we hire some people on upwork, we hired them on fiverr and you can pay a certain amount but you don't get the commercial rights. And then you pay a higher amount, you get the commercial rights. But if you hire like a local person, you don't, it's, it's usually don't have that sophistication. So what, what about like if you just take a video or some music that someone gives you locally, you put it on a video. Are you, are you, I guess, are you at risk of having some copyright issues with that as well?
- [28:43]
B
Yeah, you are. I mean they, ideally you want, you know, it doesn't have to be a treatise, but some kind of agreement with that person where they're saying yeah, you can use this music for this purpose, for this amount of time or whatever it is. Just like cover the basics at a minimum and have something in writing that, that, that reflects both of your understandings. Like that's ideally what you have. Could there be a situation where that local person has registered their track or will shortly with the copyright office and then sees your video and then tries to say, I never agreed to this, you know, I didn't give you any kind of implied license or anything and this is copyright infringement. Sure, that, that certainly could happen. It's probably less likely than if, you know, Nike rips off a hugely popular. Not rips off, but uses a hugely popular tune without permission. But yeah, it's, it's still a risk that you would want to have covered. If it's, if it's at all possible to do that or practical to do that.
- [29:42]
A
I'm glad you mentioned Nike because I wanted to ask you about something about Nike. You know, you'll see videos sometimes where people are and it's on social media or on regular television, whatever it may be. But you know, they're wearing a Nike shirt but then they blur it out. What is the reason for that? Because it, and I don't quite understand why that is it. Why do people blur out brands sometimes on TV or on videos?
- [30:08]
B
There's a Number of reasons. I think one of the biggest ones is just being over cautious. And maybe someone on the team says, hey, don't we need to blur that out? And someone else says, yeah, I think so. And then they do. And there's not really like a great justification for it. It could be that one or more of the businesses.
- [30:27]
A
Are you tired of the marketing guessing game? Does your website feel more like a digital billboard than a client magnet? If you're nodding along, you're not alone. And it's time to stop the uncertainty and start getting real results. Let's talk about your marketing spend. Are you just shelling out money every month and crossing your fingers? Do you ever wonder what impact your marketing is really having on your revenue? Well, it's time to take the guesswork out of the equation with Rise Up Media. What? We've been working with them for over a year and the feedback from our fellow members has been fantastic. Rise Up Media is here to take your marketing to the next level. They'll even perform a full audit of your online presence, giving you the good, the bad, and even let you in on what your competition is up to that you're missing out on. And the best part, there's no obligation, no catch, no pressure. If you decide to work with them, their contracts are month to month. That's right. No long term commitments tying you down. So what are you waiting for? To learn more about how Rise Up Media can transform your firms, visit riseupmedia.com max law and rise is spelled with a Z. Riseupmedia.com maxlaw associated with putting.
- [31:45]
B
Whatever that project together is. Maybe they have a deal with some company that arguably competes with Nike and they have some kind of exclusivity and they don't want to have their competitors, competitors shown. Maybe that's a term in some agreement with some, somebody involved in the production. Or maybe they just have. Maybe they've dealt with kind of arguably frivolous or just annoying demand letters from attorneys representing other brands and they're like, look, we, we don't want to deal with this even though we're not liable just because a logo is displayed once or twice. Let's just avoid this issue and just blur everything out. And you know, that, that makes sense. But if, if I'm producing a TV show and somebody happens to be wearing a Nike shirt, there's no unless. It's unless somebody could think there's some affiliation between that person or the show and Nike or something else that could give rise to a trademark claim. There's not there's not really risk with doing that. It's probably just being over cautious in.
- [32:44]
A
Most cases, I'd be honest. Are you, have you been guilty of sending out some of those letters to people before?
- [32:50]
B
I'm trying to think back when I was with Greenbridge, if I ever sent trademark cease and desists like that. I don't think I've, I don't think I've sent one that. Was that over cautious? Because, I mean, another concern could be like if, if there's a movie where, I don't know, somebody is, a character is a career criminal or something and they're constantly shown wearing Nike, like that could be maybe a trademark tarnishment issue or, or something where the brand would not want to be associated with that character or whatever that person is doing. So that's another reason that could happen. But generally speaking, just like the appearance of a logo in shot is not necessarily a problem.
- [33:29]
A
I'm so glad I asked you that because it's something I've wondered for years and I'm just thinking like, why did, why do they even do that? It just hasn't made sense to me. But so something I really, I've been, the whole time I've really been wanting to ask you about. It's a, It's a couple things, a couple very specific things, but a couple more broad. I want to get into a little bit about AI Before I get to that though, I want to ask you, I, I'm certain you've heard of this about like, you've heard about the like Disney like sneaking in like these arbitration clauses and stuff. I, I want, I. What are your thoughts on that? Like, it is to me as, as someone that represents injury clients, it is infuriating. But I, I wonder from your perspective if it's maybe different. So like, what are your thoughts on that?
- [34:14]
B
Yeah, the whole Disney thing and how much media attention that got. And that was one where the BBC reached out to me to go on BBC Live twice to talk about Disney two separate times. That case in particular, like White and Case was representing Disney. And I'm sort of assuming the listeners know what, what happened there. What that case represents to me is like the lawyers for Disney came up with a clever argument, probably a reach, maybe one that could pay off in future cases in Florida for them if they got a good ruling. And so I'm assuming they were thinking like, yeah, maybe, maybe this is a reaching argument. But worst case, we can't compel arbitration. Best case, maybe our terms of service can apply much more Broadly, or at least we can have more clarity about how far we can stretch this clause in the future. What they, I don't think banked on was someone on Twitter is going to say, wait a minute, I can never get a jury ever, because I got Disney plus, like, if I die at a Disney park, but I wanted to watch, you know, a Star wars movie, I'm out of luck. That's crazy, and it does sound crazy. And they didn't expect the backlash from the PR perspective that they received. And then they tried to backpedal and say, oh, well, you know what, on second thought, we actually care and we're not going to make that argument. But they said that after the plaintiff filed their opposition brief, which laid out exactly, in my opinion, everything that was wrong with that argument in the first place. So they tried to spin it as like, you know, actually we found our humanity and we're not going to do that. I think they read that opposition brief and someone in House of Disney was like, what did we argue? Like what? And decided to drop it. But to answer your question, like, that scenario was not. It's not surprising to me that a service like Disney would have a very broad arbitration clause in consumer terms of service. That's been kind of the norm or it has been the norm for a very long time. And it's one of those things in consumer contracts in terms of service that, that most people do not understand or let alone like read or are even actually aware of when they sign up for something. Like, you want to watch a movie, you don't want to read a 40 page legal document. And probably most people have no idea that they're saying, like, I'm waiving one of my fundamental rights, which is the right to sue someone in court and get a jury if I have a claim. But that is something that most of us wave pretty much every time we sign up for any kind of online service. So, of course, wasn't news to me that there would be an arbitration clause there. But is that something that you could say is a fundamentally unfair part of life? Yeah, I think you could say that. Why should I have to waive a fundamental right when I want to have a nice evening watching a movie? It seems oppressive. And I think you could argue that it is. But, you know, every. Every few years, it seems there's some sort of case that involves a company trying to compel arbitration and people on social media become aware of consumer arbitration for the first time. And then a number of people are like, this is outrageous. I can't believe this. And it's like, understandable, but this isn't really new at all.
- [37:44]
A
No, it's a pretty wild scenario. Another one. Did you hear about the OpenAI them using Scarlett Johansson's voice?
- [37:53]
B
Yes.
- [37:54]
A
Yeah, I wonder what your thoughts are on that one, because that seems pretty crazy too. Will you set up the scene on that one? Because you may not know what that one's about.
- [38:02]
B
Yeah, basically, OpenAI developed a number of voice models that users can select from, I think, if they want to create their own video or their own voiceover readings or something. Instead of narrating a video yourself, for example, if you want to have, you can select from a few, like, avatars that are voices that OpenAI generated. You know, different male voices, different female voices, what have you. Scarlett Johansson became aware that one of the voices I think. I think they called the Avatar sky, maybe something like that, sounded exactly like her. I can explain why that could be a legal problem in itself, even if it wasn't actually her. But it came out. I don't remember if she disclosed this or how it came to light, but OpenAI had approached her for that purpose previously to say, hey, we would like to use your voice to create one of our AI avatars. She declined that offer. And then, lo and behold, like a month later, there she is. Essentially, there's her voice available as part of this service that people pay for. So I don't know if she ended up doing anything about it. I don't know if there was a case that was filed, but I think.
- [39:16]
A
She called them out. She filed on it there. She found out because one of her friends heard it on the app and we're like, oh, you didn't tell us about this. And she's like. So she was, she was kind of blindsided by it. Yeah, she ended up filing a lawsuit. I saw a snippet from a lawsuit, so I, I never saw the actual lawsuit itself. So I, I'm assuming that she did actually file a lawsuit, Right?
- [39:42]
B
Yeah. And there's. There's this similar case pending against another AI company by a group of voice actors where the, the. Basically the same thing happened where a different company was providing voiceover AI and they trained it on voice actors reading audiobooks. And, and it. Those voices sound a lot like them. So the, the issue there is a pretty, in my opinion, straightforward publicity rights issue. Different states define how their publicity rights laws work, but generally every person has the right to control the commercial use of their Persona, their name, image, likeness. In some states, their voice or Anything that evokes their Persona. If somebody wants to use that for a commercial purpose, they need your permission to do that. And there have been a number of cases over the years where celebrities in particular have had success suing because of like a sound alike, something that was intended to evoke their unique and identifiable voice in a commercial or for some other commercial purpose without their permission. And the voice is something that's protectable if it's recognizable and has commercial value. So she, I think she's got a pretty straightforward claim if she has or wants to bring one to say, like, look, especially given the, the apparent history between her and that business. Saying like, look, obviously you think there's value in having a avatar sound like me, and it does sound like me, and people clearly are recognizing it as me because they're telling me about me. They're like bringing it to my attention. And he didn't have my permission. And it's a publicity rights problem, potentially also a false endorsement problem or something like that. But the immediate claim from my perspective is a publicity rights one.
- [41:29]
A
I've got a question. This is, this is related to this. It's more about like deep fakes, but we could talk about the voice, but also like the actual video. So sometimes like when I think about the Baldwins in general, like all of like, I feel like, you know, like Alec Baldwin's like the main Baldwin. Right. But then like the brothers are like watered down versions of him. It's so.
- [41:53]
B
Yeah, it's kind of the way like so diluted Baldwins.
- [41:56]
A
Yeah, exactly. They like. Yeah, exactly. But so I, I wonder, like with deep fakes, right, you've got, you take a deep fake of, let's say, Tom Cruise, but then you, which we've seen on social media a few times, let's say you take a watered down version of Tom Cruise. It doesn't, it's not him. It's kind of like him. What. Are there still legal implications if you're using things like that on your social media?
- [42:23]
B
There can be. If you are using aspects of Tom Cruise's Persona that reasonable people would recognize as Tom Cruise's Persona, then yes, you can have a problem. So there have been publicity rights cases even where the individual in question, even where their image or name or voice is not present in the ad. So there, for example, there was a NASCAR driver where he sued for violating his publicity rights. This is a California case from a few decades ago. But there was a, there is a brand that ran an ad with a car, like a NASCAR looking car. I think it was with his number on the side of the car. And he said, people are going to know, like, you can't see me driving the car. They don't mention his name anywhere. But people associate the number 35 or whatever it was plus NASCAR vehicle with me. And he didn't have my permission to do that. You're evoking my Persona to gain a commercial advantage. And he, he prevailed in that case. So if what you're doing is like, all right, I want people to think about Tom Cruise when they see this person, then that should be a red flag that you need to be really careful about what you're doing or potentially abandoning the idea.
- [43:41]
A
That's interesting. So let's say, let's say it's a real person. So it's a real person kind of looks like Tom Cruise. Not necessarily. I mean, like, I don't look like Tom Cruise, but let's say, like, let's say it was me, right? And I, I do that. I recreate the scene from Risky Business. I think it's Risky Business. Is that the one where he has the, the, the bit oversized shirt and. Yeah, he kind of. I come out and do that thing like, am I, I mean, I, I obviously want to make people think that it's. To think of Tom Cruise. I mean, is that something where, like I'm now at risk of. And I'm. It's like in an ad for my firm or something like that? Like, am I, like, is that, am I crossing the line in that situation?
- [44:17]
B
I think that would be a harder case to make out because I think you would say, I want people to think about Risky Business and that famous scene and not like, not Tom Cruise in particular. Like you can dress up like James Bond, the character, and not necessarily violate Daniel Craig's publicity rights or whoever Bond is at the time. I don't, I'm not sure that that character is so closely tied to Tom Cruise's Persona that he would have a good claim there. And it's a good question though, because it's, it's, it's not, I don't know that the answer would be for sure. No. But it's certainly a harder case to make out than somebody who looks a hell of a lot like Tom Cruise and is in an ad. There have been a number of cases like that with look alikes. Like Ariana Grande sued Forever 21 a few years ago. They found a model that looked kind of like her and dressed her up in the way that Ariana dressed in one of her famous music videos, and she sued them. I think she was seeking like it was at least $10 million. The company went bankrupt in the interim, so we don't really know how it turned out. But those sorts of cases happen from time to time where they like, yeah, it's not this person, but it's a lookalike intended to make people think of the celebrity in question.
- [45:32]
A
I mean, with AI and everything. Do you think that we're going to start to see a flood of litigation because of things like that, where people are going to create a. I mean, even if it's not a deep fake, it's like something similar to that? I mean, do you think it's going to. It's going to lead to a bunch of litigation coming forward?
- [45:45]
B
Yeah. Yes. Yeah, absolutely. I mean, the tools that we have available now to create content that, I mean, there's so many new types of content you could say that are so much easier to create at scale, that there's. There are new risks that are much easier to stumble into. So, like, there's services out there that will, like, let's say you're a brand and you want to hire some content creator to make a few videos showing off, I don't know, your jewelry or something traditionally, like, you find a content creator, you pay them, you wait for them to make the video, maybe you review and approve it, and then it goes live and you have to repeat that process. For however many creators you want to make videos, there are tools out there where on the platform side they will pay a creator to shoot like an example video and then that. That Persona is added to the library of Personas that a brand can go to and say, I want them to hit these points about this product. Make me 500 videos with that person talking about my product, and you can get that back in like five minutes. And it's a real person, it's based on a real person. It's not like midjourney's making the graphics and it's getting pretty convincing. And I mean, that opens up a whole can of worms about the claims that this person is making if they haven't used the product or some kind of review that's. That's not honest and things like that. And that's just like one example of a kind of risk that wouldn't. That you couldn't really find yourself in, certainly not easily before the advent of this gener generative AI technology and how prevalent it is now. So, yeah, I think there's, there's going to be a Lot more litigation around publicity rights and IP issues and other things that come along with this surge of AI tools.
- [47:42]
A
Yeah, I don't know if you played with any of the technology. It is interesting. I did one. It was like right at the beginning of whenever the video stuff started being pretty popular and it was, it took. So I uploaded some video of me and then that specific software didn't have the ability to do my voice yet. It probably does now if I went back and looked at it, but it took my, my body, my mouth. Everything was moving. It looked really good. It was pretty damn good. It wasn't perfect, it was good, but it took someone else's voice. It was so weird to me. How, how. But have you played with any of that at all?
- [48:18]
B
Yeah, I mess around with some of the music ones. I probably play with that more than the, the video stuff. But yeah, I've, I've tested out like the image generators on, on Twitter's Groak thing and chatgpt and Mid Journey and not mess around with some of the music related ones. And I've tried out the text based stuff like seeing how well ChatGPT does with legal questions. Not that I would ever rely on it, but just for curiosity's sake, when they update the model, I'll play around with it and see how it does. There's the whole side of AI companies purporting to offer legal services getting in trouble with the FTC for not delivering on that. Yeah, I mean, there's so many complicated issues that these tools present based on what they're supposed to be used for and what people end up using them for.
- [49:12]
A
It's, it's going to be a wild next 10 years, I think. Are you, are you familiar at all with the term dark patterns?
- [49:19]
B
Yeah, very.
- [49:20]
A
Okay. Okay. So I wonder what your, how you think. I guess explain what dark patterns are to people. I'm sure that most people don't know what it is, but explain it is. And like, I wonder what, what you see coming in the future when it comes to dark patterns and how they might affect us.
- [49:38]
B
Yeah. So a dark pattern. The guy who coined that term, his name is Harry Brignall. He's a guy in the UK who is a technology researcher. Among other things, he came up with this term and now he prefers the term deceptive pattern. But regardless what it is, it's a.
- [49:56]
A
It'S probably more accurate actually.
- [49:58]
B
But yeah, yeah, it's a set of design and behavioral techniques that manipulate a user into making choices that benefit whoever's deploying that practice, and often without the user's awareness. So you see, this term used now by the ftc, has adopted the term dark pattern as a term that it will use in its guidance and rulemaking. And states like California have done that too. What they're most concerned about, the FTC released a document called Bringing Dark Patterns to Light. And at the end of that PDF that's available on their site, there's like a chart of the categories of dark patterns that they believe are deceptive and can therefore be unlawful. So things like bait and switch patterns, drip pricing, misdirection on websites, making things really sticky and hard to cancel, which they call a roach motel. There's like a variety of things that you might encounter, especially online, that are designed to make you commit to some choice or take some action, maybe without your awareness that you wouldn't necessarily want to take if you had full information. I guess that's probably the best overview I can try to give.
- [51:16]
A
Yeah, I think that's right. And I've got some up here. So for people that are watching this, I've got some.
- [51:22]
B
Yeah, so like, like an example, a really simple example is like using confusing language for some kind of opt in. Like, if you're, if you're presented with something like, do you want to give us your phone number and Social Security and like bank account information? And if you said something like, yes, I don't not want to do that in some way that's confusing where, like the yes actually means the no or something that would be like a misdirection dark pattern or something like even less insidious, like, all right, I'm trying to cancel a subscription and in my account, like, there's 10 bright blue buttons about how I can add services and then cancels in super small font and much less visible. That's arguably a dark pattern too, because it's not. You're encouraging people to do one thing over another. There's criticism of, like, the term itself and the FTC's application of it to marketing practices, because you could argue that like every. All marketing is a dark pattern. Like, it is the job of the advertiser to make you, to encourage you to do something that you wouldn't do if you didn't see the ad. We call that marketing. And I'm sympathetic to some of that. But yeah, dark patterns have been an area that the FTC has paid a lot more attention to. And a lot of the rulemaking that's come out in the last couple of years has to do with trying to address those design techniques and those advertising practices that end up causing consumer harm.
- [52:52]
A
That's one of the first things I thought of. And there are deceptive things, but I thought, well, a lot of this could be just marketing. And I'm sure there's a line that is crossed where it's clearly deceptive. I think of unsubscribe buttons. Sometimes you're redirected to a website and the. The big button that you would think should be unsubscribe from all is. Is. Is the opposite. So you're subscribing to all of them, and instead you have to go in and uncheck all the ones you don't want to subscribe to. So there's things like that. We're like, is that deceptive? I don't know if it's. It clearly says subscribe all, but your mind expects it to be another thing. And so.
- [53:31]
B
Right.
- [53:31]
A
I don't necessarily think that that is. I wouldn't say it's deceptive. It's just not as convenient as I would like it to be.
- [53:38]
B
Yeah. You could say maybe it's unfair if it's not deceptive. Like, people are used to clicking in a certain place and maybe they're not paying close attention to what they're reading and they might inadvertently make a choice that they did not intend to make and that benefits the person who set the choices up that way.
- [53:54]
A
Yeah. I wonder, have you learned much since you are in the advertising space? Right. You represent a lot of people that are doing probably some pretty cool marketing and advertising. Have you learned anything that you've been able to apply to your law firm?
- [54:09]
B
Good question. Not in terms of, like, a particular technique, I don't think. You know, I've had offers from clients to like, redesign my website or give me a better landing page or a funnel or something like that. And I probably at some point should take them up on that and. And have more ways for people to find me. But I've been comfortable with how business is going and all of my advertising and marketing, so to speak, is on social media because one, it works for me, and two, it doesn't cost me anything except my time. I think it's more just in terms of the content I put out and how I put it out and how I try to present things to my target audience. It's less like, here's this tactic and more, I've looked at a lot of ads and I've spoken with a lot of people who are really good at advertising, and I like to go to advertising conferences more than I like to go to legal ones because I, I feel like it, it's, it's to my advantage to be one of the few lawyers at one of those places and I can talk right to clients, but as part of that, I listen to a lot of presentations about, like, what's, what's, what's working in marketing and what doesn't work. And I think having that kind of experience helps me at least somewhat better predict what's going to resonate with people and how I can present, how I can convey that, how I can help people and that I know what I'm talking about and still keep, hopefully keep it entertaining. So I think it definitely helps. But I don't know if I could identify a list of things and participate particular that I do.
- [55:48]
A
Yeah. So I wonder. A couple years ago, you know, augmented reality became like, started to get really big. I've always been pretty skeptical of, of the metaverse in general and everything. And there's some firms that are advertising the metaverse. Do you think it's going to become a thing? I just, I'm wondering.
- [56:05]
B
Yeah, I don't. I mean, if, I think if it was going to become a thing, it would happen by now. I mean, we've had like the metaverse for a long time. Like, it wasn't the idea that there could be a virtual world that people, regular people, actually want to hang out in for more than 20 minutes a day has existed for a long time, and it hasn't been adopted much beyond like, hardcore tech enthusiasts or people who are like, really into that kind of technological development. Anyway, I, maybe I'll be wrong, but, you know, even before, like, the, I can't remember what the, the new Apple headset is called, but like before that and before the Oculus, we had headsets that would allow you to connect and they had online capability and they, they're just. People don't like wearing things on their head. I don't think, with the exception of maybe those, those new meta glasses, because they just feel like sunglasses. But I don't think people are going to want to spend a lot of time with a headset in my lifetime. That's what I, that's what I think. I don't think we're going to see like, your, your regular person who's not a tech enthusiast and who doesn't spend five hours on Twitter learning about what's new and cool in the, in the hardware space. I don't think that person is going to put a headset on and hang out in the Metaverse.
- [57:23]
A
I agree. I tend to agree with you. I think it's the Vision Pro, I think is what they were called. That's how he's calling it. I think I could maybe see myself wearing, like, glasses, like, actual glasses, and I don't know what use case I would use them in, but it is. It'd be interesting. I think maybe I could see myself, but I. I don't want to wear this big, bulky thing on my head either.
- [57:44]
B
I'm somebody who has. I have the first generation of the. The meta glasses, and I have. I had the PlayStation VR thing, and I have a Oculus Quest 2. So, like, I'm kind of familiar with the stuff. And, like, I was tempted to buy the new Oculus, but because there's some cool stuff I can do and, like, sync with your computer and, like, you could sit on the couch and have, like, giant monitors, and it flawlessly syncs and stuff. And I could think, like, all right, that maybe I would like to have that, or if I'm on a plane or something. But I've done this twice with headsets, where I buy it and use it for a month, and then it collects dust. And my girlfriend is like, you were just talking about how you were trying to sell the last one. Like, don't. Why do you want to buy the new one? I'm sure it would happen again if I got it.
- [58:27]
A
I fall. I fall for that as well. I've got many, many electronic devices laying around that I use for a little bit, and then I stop using. So it's funny, you said something December 29th of 2021 about the metaverse. You said it's very easy to sound like an expert about the metaverse right now because there's no agreement about what it actually is or whether it even exists yet. I still. I still. I think you could post that today. And it is pretty. It's pretty wild how it feels like it is. Just like it was back five years. That was. That's four years or three years ago. I'm sorry. I was thinking 2019 whenever you started your firm, but, yeah, that's three years ago. I mean, that's a lifetime when it comes to technology. So I'm with you. I don't think it's going anywhere.
- [59:17]
B
Yeah. And it was one of those terms that, like, it seems like there's a group of people who are allowed on social media, who are. Who become experts in, like, whatever the latest thing is, whether it's crypto or the metaverse or NFTs. And now I like, there's a group of people who will like Change what their LinkedIn bio says and what their social bios say and like, oh, now you're the AI expert and whatever. The next thing that maybe only a handful people in the world actually understand is you'll see a lot of so called experts who have very loud things to say about it on the Internet. And I think the Metaverse is in that category. I think, you know, obviously Mark Zuckerberg was a huge proponent of whatever the metaverse was a few years ago, but it doesn't seem like his foot is on the gas in that direction so much anymore. And yeah, it was funny to me to see the couple of law firms that set up offices in the Metaverse. There is, I remember, I think it was Aaron Fox maybe some said they, they announced like the first big law office in the Metaverse in Decentraland. And I remember it was only a couple months after reading that that there was like that article either on the Verge or Vox or something that was like Decentraland has something like eight weekly users. No one's gonna. Something ridiculous like that.
- [60:38]
A
I've got, I've got some good friends. I'm not gonna mention their names that we had on the podcast a couple of years ago and they were, they were talking about it and I'm so, I'm not going to, I'm not going to mention their names. But I, I was, I didn't get it then, I don't get it now. I don't think it's going anywhere. I want to make sure I'm respectful of your time. And I want to ask you one more thing. It's a quote you have. It's, it's every promise you make online as weight and consequences or at least might. I don't know if you remember making that quote, but it's every promise you make online as weight and consequences, or at least might. So I wonder, I wanted to get your thoughts on like what you meant by that.
- [61:14]
B
I'll be honest with you, I don't remember writing that. I can. What. I think that if I had to guess, I'm probably talking about advertising claims. I mean that's, I'm assuming what my guess would be in terms of a promise. You know, speaking from. Trying to contextualize that as a brand making some kind of claim or promise about a product or service on the Internet. Like if you are speaking on behalf of your business, then yeah, that's true. Like every kind of statement you make about what your product or service does or can do or, like, has the potential to do, can present risk if it's not truthful, not misleading and substantiated. So, like, Those are the three things you have to check from the FTC's perspective to have to not run afoul of truth in advertising rules. Like, is the claim true? Like, is it literally true? Could people interpret it in a way that's reasonable, that you can support? Is it not misleading? And do you have the evidence to back it up? If any of those things fails, then you have a problem that you should look into. And I think that if I were to guess, I was probably thinking about brands and business owners tweeting about products and services and saying something offhand that maybe I thought, is that really what you want to say? Is that true? Like, would you be able, if pressed, to support that? And a lot of times in consumer false advertising complaints, you'll see screenshots. It's more and more common, I think, at least from what I've seen. To see screenshots from Twitter and X, or from Instagram, or from social media where either the business account or the owner of the business on their account is making some kind of claim or promise about what their business does, and that ends up, you know, screenshot in a lawsuit somewhere. So I. It was probably. I was reading something that somebody said where I thought, man, I really wouldn't say that if I were them, or I'd be careful. And I wanted to remind people that, like, hey, every. Everything that you say, that could be interpreted as a promise or some kind of representation, and you need to be careful about what you say online because people are watching who you might not expect.
- [63:30]
A
I think that's a good way of ending it. Thanks, Rob.
- [63:32]
B
Thank you.