Are all contracts legally binding? That’s a great question. The answer is yes, so long as you tick off all the little boxes in the elements that make up a contract. In other words, there are certain factors that make up a valid contract. If you stick around to the end, you will learn something about contracts — and writing — that might surprise you.
So aside from being of legal age to enter into a contract, there are four things that you have to satisfy in order to make up a valid contract: mutual consent, offer and acceptance, consideration (and no, it’s not like… caring about something), and legal purpose.
That first one, mutual consent. That’s sometimes called a “meeting of the minds.” In other words, you and the other person are all agreeing to the same thing. You’re all on the same page as to what you’re agreeing to.
Offer and Acceptance.
Two, offer and acceptance. Pretty straightforward, there is an offer on one hand and an acceptance of the offer on the other hand. You can see where you might poke holes in a situation where… was that offer really accepted? Was there even an offer?
Consideration is something of value that you are giving in exchange for whatever the other person is giving. So, typical scenario is: I agree to provide services, you agree to provide payment, we are each providing consideration. One is services, the other is payment. We’re each providing something in order to enter into this contract.
And then legal purpose: you can’t contract for something illegal. (Sorry.) If you’ve satisfied all of those things, yep, it’s a valid contract.
Why Having it “In Writing” Does and Doesn’t Matter When it Comes to Legally Binding Contracts
Notice! I did not say that it has to be in writing in order for it to be a valid contract. I was one of two A’s in my contract, law class in law school thank you very much, and there was a little something called the “Statute of Frauds.” I know that sounds very legal. But it basically says that certain types of contracts are only valid if they’re in writing. That’s stuff like real property, real estate. You have to have it in writing in order for that type of contract to be valid. But in general, a contract does not have to be in writing in order to be valid.
This is why I say you should always have your agreements in writing. Not in text messages, not in DMs, not in emails back and forth, because those things can make up a valid contract. Or they could provide holes that you can poke into the agreement that say was there really an offer? Let’s scroll back through these emails. Was there really acceptance? Let’s scroll back through these DMs. Avoid all that. Avoid all that just have it all in a document.
So, I hope this helps you better understand that yes, all contracts — so long as you tick off all the elements of a contract — are legally binding.
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It’s a new year, and here’s a question I get asked a lot. And that question is, “What year should I put on my website copyright notice?” You know, that little copyright notice at the bottom of your website that says “copyright, blah, blah, blah?” Well, I’m going to give you the answer in this short post. And if you read through to the the end, I will give you the ONE exception for changing this general rule.
What’s in a copyright notice and why it’s important
So you’ve heard me say this before, but a copyright notice has three elements:
The copyright symbol or the word copyright;
The year that the creative work was published; and
A copyright notice is not a requirement for copyright protection (at least, not any more). But, if you don’t have one, an infringer could claim innocent infringement. And that’s a big deal, because it could drastically reduce the amount of money that they pay you for infringement, if it gets to that level.
What year to put at the bottom of your site
When was your website published? Well, if you’re constantly adding content to your website, by adding blog posts, by adding videos, then you have content on your website that could span a couple of years. So, what year should you put on your website copyright notice? A lot of times you will see a date range. So my website, for example, was first published in 2015. But I’ve added blog posts and videos for years and years since then. So if you scroll down to the bottom of this very page, you will see a date range at the end of my copyright notice.
The important exception to this rule
Now, the exception to this is: if you’re not adding new content to your website, or you haven’t added new content to your website since it was published. So if you have a brand new website that you’ve never added content to before, yeah, you would only have the one year: the year that the website was published. Otherwise, you are welcome to use that date range on your website from the date on which the website was originally published through the last date that you updated the content on your website.
One more thing…
All of this assumes that you actually own your website. Gotta look back at your contract with anyone that worked on your website to make sure. And if there wasn’t a contract, get your hands on my IP Rights Agreement Contract Kit™, stat!
If you’re running a giveaway on Instagram or elsewhere online, you must do it legally! Let’s talk about the three biggest mistakes that I see when people are running giveaways on social media.
Mistake #1: Creating an Accidental Lottery
Okay, so the first big mistake is accidentally creating a lottery. What the heck do I mean by that? Well, giveaways can actually fall under sweepstakes, contests or lotteries. A contest is something that’s judged based on criteria — like the best answer to a question or the most creative “whatever,” That’s a contest, when you have to judge the winner. A lottery, on the other hand is against the law in a lot of states.
What is a “Lottery,” and Why Is It a Problem?
To qualify as a lottery, you need a prize, you need chance — in other words, luck; luck of the draw — and you need “consideration.” What does consideration mean? Consideration means that to enter, you give something of value. It might be an email address, it might be a purchase. Note that an email address is completely free, but still valuable. A lot of times you’ll hear “no purchase necessary necessary to enter.” That’s because they’re trying to avoid a lottery. If your contest is actually a lottery, like I said, it could be against the law in a lot of states. (Some states consider lotteries to be gambling.)
Avoiding the Accidental Lottery
How do you avoid the accidental lottery? Well, you can make it into a pure contest, where you are judging people based on criteria — like I said, the most creative “whatever.” And you set out those criteria in your giveaway rules. OR, you give someone a totally free way to enter that doesn’t involve giving something of value. Tagging someone in the comments is an example. Another example? I ran a giveaway a couple weeks ago, and in my official rules, I said that you could enter either by filling out a survey, or by emailing me with the subject line “giveaway,” and that would count as an entry. Now, of course, you can give weight to different ways to enter. So, “you get five entries if you do this, you get one entry if you do this, no multiple entries allowed” — that type of thing.
Mistake #2: Not Having Giveaway Rules
You must, must must, must have giveaway rules in order to run a giveaway legally. You should also stick to those rules. Giveaway rules talk about things like how to enter, who’s eligible, what the prize is and what it’s worth, how the winner is chosen, how the winner is notified, and any other miscellaneous terms that are essential to your giveaway. For product-based prizes, you’ll often see that Alaska and Hawaii are excluded because the person holding the giveaway wants to avoid paying those Alaska and Hawaii shipping fees. You’ll also notice on Facebook and Instagram and many other social media networks that they require that you state that Facebook and Instagram or whoever is in no way affiliated with the giveaway.
Mistake #3: Not Adding the Proper Disclosures
Here’s a mistake you might not think of. Not disclosing when you are getting something for free in exchange for running the giveaway. Yes, even a giveaway can cause a sponsored relationship that you need to disclose to your audience. If you are getting something for free or something of value in exchange for running this giveaway, you have to disclose that to your audience. You should disclose that in any posts.
Running a Giveaway Legally: In Summary
So again, wrapping all of this up. One, avoid an accidental lottery. Two, have some official giveaway rules. Three, disclose, disclose, disclose if you are getting some kind of benefit or freebie or something in exchange for running this giveaway.
Those are the three biggest mistakes that I see made when people are running giveaways.
Curious about trademark registration requirements in the US? Today we’re talking about the number one most important thing that you need in order to file for federal trademark protection in the US.
I’m going to cut to the chase, the number one most important thing that you need in order to successfully register your trademark is use of the trademark in interstate commerce.
Whaaaat? What does that mean, exactly? Well, it means that you have to be able to show that you use your trademark across state lines. That can be a little bit harder for hyper-local businesses, or businesses that don’t do any business online. But if I know you, you absolutely do business online. In fact, you might only do business online.
So how does this trademark registration requirement play out? How do you show that you’re using a trademark across state lines? Well, when you file a trademark application, you have to submit what’s called a “specimen.” (Unless you haven’t started using your trademark yet, and then that’s a whole other can of beans.) Your specimen will show exactly how you’re using your brand. It will likely be a screenshot of your website and the services that you offer under your website. It also could be a screenshot of your podcast on Apple, or a screenshot of your video show on YouTube. If you promote others’ products and services on social media as an influencer, you can submit screenshots of your account where you promote those goods and services and your trademark might be your Instagram handle.
Bottom line, though, is that the best way to show that you’re using a trademark across state lines is to offer services across state lines by using the internet. And, if you have an internet-based business, you’re probably already doing that. Which mean you have this trademark registration requirement in the bag!
Jump in with me today where we are talking about the trademark registration process in five steps.
Step 1: The Search.
You must do a trademark clearance search. For me, the trademark registration process begins with a search 98% of the time. Every once in a blue moon, a client really really really does not want me to. And even then, I will coach a client through the reasons why to do a trademark search. And here’s why!
A good trademark search will show:
The likelihood that you will succeed with registering your trademark;
Whether you can protect your trademark; and
Whether you can use your trademark.
Remember that in the US there’s something called “common law” trademark rights. And that means that you don’t have to register your trademark in order to have some rights. So a good search will look — yes, on the Trademark Office website — but also everywhere, to make sure, okay, is there any risk if I continue to use this trademark? Does someone else have more solid rights in this trademark than I do?
Step 2: The Prep.
If the clearance search comes back a-Okay, then the next step of the trademark registration process is gathering materials. We need proof that you are using the trademark in connection with your services. (Like, say, podcasting services.) We need information about the owner: name, address, blah, blah, blah. And we take all of that information along with a good specific list of the services or products that you offer, and put it into the application.
Step 3: The Filing.
Of course, the trademark registration process all depends on actually filing an application! So step 3 is, we file.
Step 4: The Wait.
Step four: we wait… and wait… and wait.
Why? Because nobody at the Trademark Office is going to look at that application for at least three, three-and-a-half months, depending on how backed up the Trademark Office is.
Step 5: The Publication Period.
During the trademark registration process, there is a 30-day period called the “publication period.” In that 30-day period, anyone that feels that they would be damaged by the successful registration of your trademark can file what’s called an “opposition proceeding.” It’s like a little mini lawsuit that takes place completely within the Trademark Office, online. But that 30-day window exists so opponents can either file one, or file an extension so they assess whether they actually want to oppose. So long as no oppositions are filed, the trademark moves on to successful registration!
Recap of the 5 Steps in the Trademark Registration Process
So 1) search, 2) gather materials, 3) apply, 4) wait, 5) publication period. And then you are good to go. It’s super rare that a trademark wouldn’t proceed to registration after that.
Now, there are a few little things that might change up those five steps. If you’re not yet using the trademark, or if the application is rejected, those can cause a little bumps in the road.
But I hope that this explanation helps you understand the trademark registration process in the US, and I’ll see you next time.
Curious about the legally protectable parts of a blog? Read on to learn a little more about copyright protection for a blog and trademarks for bloggers.
This is kind of an easy one, right? It is the name by which all of your readers recognize your work, your blog, and a name. Of course, the name is a protectable part of the blog because it is a signifier. And the thing that signifies a brand to your readers — the blog name — is protectable under trademark law.
Next, infographics. Of course, that can be anything from an explanation of a process to a cool way that you’ve set out the ingredients that go into a recipe. And infographics are graphic designs, which are artwork, which are protectable, under copyright law.
The actual blog post. So what is a blog post? It is text, it is maybe video or audio visual materials, maybe some kind of free download, and maybe graphic designs, and maybe all of those things. And each and every one of those things, is a creative work and creative content that is protectable under copyright law.
A video or a vlog. Well, that’s easy, it’s like a motion picture, right? And that motion picture or audio visual work is certainly a traditional creative work protectable under copyright law.
Hashtags (not really a protectable part of a blog, but quasi-protectable)
Hashtags are tricky. Sometimes, brands will use their own trademark, their own brand name, as a hash tag among other hash tags. When it’s used in that way, that trademark of course, is a trademark whether or not it’s a hash tag. It’s being used as a hashtag, but it is a trademark. Now other hashtags are moreso descriptors or descriptions — whether you are using DIY blogger, or #lifestyleblogger, or #lifestylebloggerlife, or any of those — those are hashtags you’re using to get people to find you. And because they are not really trademarks… they aren’t really copyright either. They’re not really anything, they are descriptors or descriptions used so that you can grow your audience, right?
Who doesn’t love a good printable? A printable is most likely a download and most likely in PDF or JPEG form. And so those are actually protectable under copyright law.
Finally, recipes. And this is a tricky one. So recipes, “mere listings of ingredients,” are actually called out as not protectable under copyright law. Now how to get around this as a blogger. Well, it’s very rare that you will see a blog post with just a list of ingredients without any kind of prose or at least instructions on how to make whatever the recipe is. And instructions by themselves too are kind of tricky when it comes to copyright law. But the more creative you can be with those instructions, the more storytelling you add to it, the more photos you add to the recipe, then it starts to become a more creative, copyright-protectable work. So recipes, kind of copyright territory depending on if you have the right elements in that post.
I hope this helps you to better understand what’s protectable in your blog, and whether it falls under copyright territory or trademark territory.
In this quick read, you’re going to learn when to post a disclosure along with your social media post. (Hint: disclosures aren’t just for traditional sponsored posts.) You’ll also learn what makes for a good disclosure.
When do I need to follow disclosure rules on social media?
So, the very quick, very short answer to “When do I need to post a disclosure,” is whenever there is a “material connection” between you and the brand.
The question of course, is, what does “material connection” mean? A material connection is any connection between you and the brand that goes beyond just “I found this and I like it” or “I came across this brand and wanted to share it with you.”
The rules aren’t just for traditional “sponsored” posts.
Disclosure rules on social media aren’t just for sponsored posts. A “material connection” includes:
Receiving free products (or even discounted products),
Receiving a special invitation to an event
An employment relationship with a brand,
A family or friendship relationship with a brand, and
Some kind of stock ownership in a brand.
Basically, disclosure rules on social media come into play with any relationship that goes beyond what any of us consumers would have with a brand.
What’s in a good disclosure?
Well, a good disclosure is clear, and it is conspicuous. It is not ambiguous. A statement like “Thank you, [brand]!” is not really clear, and it’s a little ambiguous. It does not show that there’s some kind of material connection between the poster and the brand. Same thing with #partner. That kind of, might suggest that there’s something going on. But especially when you’re relying on hashtags, you want to make sure that those hashtags are very clear.
Does the user have to tap the “More” to see your disclosure? A lot of times people don’t tap more to see more. Even on visual media like instagram stories and Snapchat, you want to make sure that those disclosures are conspicuous.
So I hope you walk away today with a good explanation of what a material connection is, what a good disclosure has, and when to follow those disclosure rules on social media.
I was probably unreasonably geeked when I saw that Apple’s new privacy rules that are rolling out in the fall of 2020. In this short post, you’re going to have an understanding of what Apple’s new privacy practices are, how they will affect the online space and why it’s a good thing for content creators.
Apple’s New Privacy Rules: The Features
When an app wants to track or collect data on a user, an Apple device will prompt the user. You’re actually already familiar with this. It’s just like the prompt you receive if an app wants to access your photos or access your microphone. But now, thanks to Apple’s new privacy rules, that prompt will say “Do you permit [app] to use your location data?” (For example.)
Also, an app will have to say which data they have on you that is linked to you. For example, financial information, contacts, browsing history, location purchases, and identifiers.
Probably the coolest part of this update is what Apple’s User Privacy Manager calls a “nutrition label for apps.” After the update, when you log into the app store, you will see that each app will have a nutrition label of sorts that shows what data they collect from users of the app, and what they do with it. That will be that data that’s linked to you and data that’s used to track you. The privacy updates will also apply if you’re a safari user. You will see a privacy report on that bar of Safari. You’ll be able to see all the third party trackers on a website when you’re on a website using Safari.
How is This Good for Content Marketing?
So what does this mean for content creators and influencers? Well, first, people in general might be less inclined to use certain apps once they see how their data is being used. Second, and most importantly, bought and paid for ads like Google ads like Facebook ads may start to be less effective when people are more in control of their own data.
That is where organic content marketing comes in. If traditional advertisements are less effective, because the data tracking has become harder to do or less effective itself, then don’t you see how organic content marketing can be all the more attractive? You, as a content creator, have analytics that don’t tie to any specific person. You can show engagement and keep track of that information without violating anyone’s privacy. And so content marketing and influencer marketing can only go up in value.
My opinion is that content marketing and influencer marketing will only continue to increase. So keep plugging away, and keep creating that content.
This is the third and final part of my three-part series on protecting a content-based business. In Part One, we talked about the prerequisites for copyright protection. In Part Two, we talked about making sure that you own that stuff.
And here’s part three, where I’m going to list off a bunch of content you can copyright with the Copyright Office. In other words, this is content that is protectable under U.S. copyright law.
Now when I say protectable, I mean able to be protected. So long as it goes back to those three things that I talked about in part one of this series: it’s creative, it’s tangible, and it’s owned by you.
Alright, let’s get to the categories of content you can copyright!
Content You Can Copyright, Category 1: Text.
This can be blog post text, text on a social media posts like an Instagram caption, the script for a video, and show notes for a podcast episode.
Content You Can Copyright, Category 2: Photos.
Blog post photos, photos from social media posts, those all count.
Now what does not count? Stock photos. Even if you’ve paid to use those stock photos, you probably don’t own them unless you commissioned a photographer to take some stock photos for you. And even then, check your agreement with the photographer to make sure you understand who owns those photos.
Category 3: Video. (Obviously.)
But watch out for any stock video elements. You probably don’t own those.
Content You Can Copyright, Category 4: Audio.
That can include any music you created, that includes podcast episodes, and that includes audio trainings.
Again, just like with stock photos, if you’ve paid for a license to use music in any of those settings, whether it’s your podcast intro or whatever it is, you might not own that music. A license is not ownership, it’s permission.
Category 5: Your Opt-In.
Opt-ins can definitely be protectable under US copyright law. This includes:
templates you’ve designed,
Those things are all protectable.
Content You Can Copyright, Category 6: An Online Course.
An online course is chocked full of different content you can copyright. It’s full of:
Worksheets (aka, text),
Maybe audio recordings,
All of that creative stuff that goes into an online course? Yep, that’s protectable under copyright law.
Finally, Content Category 7: Graphic Designs.
Graphic designs are artwork, and they are definitely protectable under copyright law. That includes:
Your pins that you pin to Pinterest — so long as you own all of the elements that go into the creation of that pin.
Podcast cover art,
Video thumbnails, and
Graphic designs that are encompassed into your video.
So I just ran through a bunch of things that are encompassed into content-based businesses and that are protectable under US copyright law.
I hope this series helps you when you think about protecting your content-based business!
This is part two in a three-part series on protecting your content based business. (This was part one.) I’m talking about how to make sure that you own your content.
Make Sure You Own Your Content by Actually Creating It Yourself
The first way to make sure that you own your content: create it yourself. It sounds a little bit obvious, but if you create the entire thing yourself, it is likely that you own it.
(Unless you’re an employee and you’re somehow creating it in the scope of your employment for someone else.)
Do you have to mail yourself a copy in order for you to somehow own it? Do you have to register it with the Copyright Office in order to somehow own it? Nope, and nope.
That’s it. Number one: make sure that you created it yourself, and you probably own it.
Now, did you use others somehow in the creation of this content? Examples might be a video editor, or a copywriter contributing to parts of your website. Really any other person that is contributing creative content to your overall work. If so, that person should sign a contract, making sure that you own the rights to that material. I call it an IP Rights Agreement, you might call it or have heard of it as a Work-for-Hire Agreement or IP Assignment Agreement. Either way, you need to make sure that that person signed over the rights in their contribution to you. Otherwise, the default rule is that they own it.
It’s that simple. One, make sure that you created it. Two, make sure that anyone that contributed to your creative work signed a document confirming that you own the IP.
That’s it for part two! Join me in part three, where I’m talking about a long list of things that you can protect under US copyright law. (Some of which I bet you haven’t thought of.)
You really should know the prerequisites for copyright protection in the US.
But first, let’s talk about protecting content. A lot of content, like online videos, long form blog posts, micro-blogging, podcast episodes, or some combination of those things. This is a three part series that’s going to break down:
The three things you need in order to qualify for copyright protection, (which you’ll find here, in part one)
How to make sure you own your creative content (part two); and
A list of content that’s eligible for copyright protection, some of which you might not have thought of yourself (part three).
But this is part one, the three prerequisites for copyright protection.
Prerequisite for Copyright Protection, #1: If you want to protect content, it’s gotta be creative.
This doesn’t just mean that it needs to be a work of art, a musical composition, a video, or something that you traditionally think of as creative. It means that your content can’t just be a fact, a mere list of ingredients, a mere idea. It has to be creative. The content should be something that’s the product of “the sweat of your brow.” You’ve worked to create this thing somehow.
You might look at some creative works and think the bar to creativity might be pretty low. You’re right. There’s not a huge bar to creativity. But it does have to be creative.
A theory, a process, an idea: these things are not creative enough to satisfy this prerequisite for copyright protection in the US. But if you have a group of facts that you’ve creatively arranged, that creative arrangement is protectable.
If you’re protecting content via copyright, it has to be tangible.
Now that we’ve gotten the creativity part out of the way, thing two is that it has to be tangible. Not tangible in that you have to actually be able to grab it and touch it. Tangible in that it lives outside of your head. It is either on paper, it is recorded, it is somehow accessible by someone else.
You’ve gotta own it.
The third thing is that it is actually original to you. Now, it can be something that you’ve collaborated with someone else on. Maybe you paid a contractor to contribute creative work. (And, hopefully, they signed a contract.) Or, you have collaborated with someone else and you both own it. Either way, it has to be an original creative work. I will talk a little bit more about originality in part two, but it should be original — as in original to you or owned by you.
So those are the three things: creative, tangible, original. Hope this helps you understand the three prerequisites for copyright protection, and I will see you in the next part of this series.
Here’s what Tik Tok has to say about music and sound recordings:
No rights are licensed with respect to sound recordings and musical works embodied therein that are made available from or through the service.
Tik Tok also says that if you don’t own the rights to the musical composition and the sound recording, you may not upload that music to Tik Tok. It also says that if you create a musical work of some kind, or any kind of sound recording, whether you’re speaking or singing, that by uploading it to Tik Tok you allow all other users of Tik Tok to edit, manipulate, create a new recording based on that recording.
Information You Choose to Provide
It should not surprise you Tik Tok collects information that you choose to provide; you are choosing to provide that information.
Let’s compare Tik Tok to Facebook, though. In creating your profile with Tik Tok, you might enter your email address or phone number, you might upload a photo, and then of course, you upload whatever content you upload through the platform. With Facebook, you’re uploading your photo, or multiple, multiple photos, and videos, your profile information, which can contain anything from your high school to your mother, who might have her maiden name up there. (Can you say, security question information?)
So in terms of privacy concerns with apps, that’s a big thing to think about — what information do you voluntarily upload to the platform? Again, Tik Tok has your face and your video and content that you upload through the platform, but the profile is very basic. You might have a link to your other social media platforms, a very short bio and your photo. Facebook has a lot more information. This is something to remember when you’re using any social media platform, but especially in comparing Tik Tok to other platforms.
Info Tik Tok Collects from Other Sources
Information that they collect from other sources can be information from social media platforms. If you connect your Facebook account to Tik Tok, for example, it might also collect your contacts on Facebook so that you can find your friends who are also on Tik Tok.
They might collect your information from third party services like advertisers.
They might collect information from you from other “publicly available sources.”
Info Tik Tok Collects Automatically
Information Tik Tok collects automatically can be usage information, device information, location data, messages, metadata, and cookies.
Usage information can be information like how long you stay on the app, what you like and what you favorite while you’re in the app — the type of information that relates to how you are using it. (So does Facebook.)
Device information. This is not just the type of phone that you use to log into the place form, but also your IP address, your mobile carrier, your timezone settings, keystroke patterns or rhythms, and file names and types. (Fb tracks this, too.)
Messages. Obviously they can scan and view messages that are sent within the app. (Facebook is notorious for this as well.)
Cookies are primarily used to track what webpages you’re clicking on, and to send targeted advertisements your way. You can disable cookies in the Tik Tok settings. Tons of sites track cookies, and, thanks to Europe, it’s now common to see an “opt-in to cookies” pop-up bar the first time you visit a website.
Is Tik Tok Scanning Your Device for Payment Information?
How Tik Tok Uses Your Information
This section looks pretty standard. They use it to fulfill requests for products and services, to customize the content you see, to send promotional materials, to improve and develop the platform to measure effectiveness of advertising, make suggestions and provide customized ad experience, blah, blah, blah.
And, if you’re curious, here’s a little comparison or example of how Facebook tracks your activities on other websites.
What You Can Do If Tik Tok’s Tracking Makes You Nervous
So, what do you do if you’re uncomfortable with some of these privacy practices? Like I mentioned, you can disable cookies, that’s a setting in Tik Tok. Apple and Android devices allow you to limit ad tracking within your settings and switch off location tracking on your device as well so that Tik Tok doesn’t have access to that information. These are all things that you can do (and maybe should do!) with regard to a lot of social media platforms.
So I hope that gives you a better understanding of Tik Tok, the terms you agree to when you’re using Tik Tok, and the data that Tik Tok has on you.