What makes a post sponsored? You know, the kind of post where you have to include disclosures. Today, you’re really going to understand when those disclosures are necessary for a sponsored post, or when there’s a connection that might require disclosure.
What makes a post sponsored?
Obviously, if someone is sponsoring the post the way we all think of sponsors (where they pay you to post about something), that’s a sponsor. But what we’re really looking for is a material connection.
What is a material connection?
A material connection is any relationship between you and a brand, where there’s more than just “I like this product.”
You are receiving payment
You’re receiving a free gift
Or something that goes beyond just, “I like this thing.”
Do you have to be paid for a post to be considered sponsored?
Nope! Like I said earlier, you could receive a free gift. It could also be a family relationship, which would also make a post worthy of disclosure. While that’s not technically a sponsored post, you probably have a relationship there that goes beyond just liking a product. If you own stock in a company, and you’re posting about that company, that also counts.
If you have a material connection, that also means that you need to have a disclosure that is clear and conspicuous. It is not ambiguous. It is not the end of a post or the bottom of a blog post. It is not hard to find. It’s obvious! It’s not a hashtag that’s not couched in between a huge paragraph of hashtags (because nobody reads those anyway.) It’s not living somewhere else, except for on that post, even if it’s a visual-only platform like a TikTok or Reel.
Head to spear-ip.com/quiz to find that legal blind spot that secretly killing your business. Not only will you find out what that legal blind spot is, you’ll receive personalized guidance on how to fix it!
Today you’re going to learn about exactly what you can protect in terms of an idea for your next course, and what you can’t.
I hate to break it to you, but ideas really are a dime a dozen.
That doesn’t help you.
But what will help you is to understand that line between an unprotectable idea and a protectable expression of that idea. What’s the actual protectable creative property behind an idea?
Examples of Protectable Creative Property
My go-to example is Uber and Lyft. The same exact idea, different execution, different brands, different feel when you’re in their app. But let’s bring it back to that course context.
How about Kajabi and Kartra? Those are platforms that integrate email and email marketing and hosting your online course and allowing you to upload videos and your course content. Same idea, different execution, different brands, different features.
Finally, a great example is Amy Porterfield and Jenna Kutcher. Each of them has online courses on how to build your email list. But again, different brands may be different content in that course, different videos, of course, different worksheets, all of those things are the different protectable parts of those courses.
All of those are examples of ideas, pure ideas that are executed in different ways. And it’s the execution that we’re focusing on.
What’s protectable when it comes to a course?
Well, there’s the brand name and logo and a logo that you might have for your overall brand. And the course you’re releasing under that brand, but also any special logo that you have for that course, those two things are protectable under US trademark law. There are artistic elements like graphic design that are part of that user experience. Those fall under copyright territory. There’s text, of course, whether it’s a script, or a worksheet, or a workbook, purely copyrightable.
To recap what’s protectable…
text (in whatever form and in your course)
In other words, whatever you do, and create to make this idea of yours and make it different from someone else’s execution of that same idea, that’s probably what’s protectable here.
Whatever it takes it beyond, “This is my idea for the subject matter of a course” beyond that, too. “Here’s why people are going to buy from me here is the specific thing that I’ve created.” That’s what we’re talking about here in terms of the protectable parts of the course.
I hope that that helps you to better understand what’s protectable about a course idea!
If you have this little lingering feeling like there might be some legal issue out there that I’m not thinking of it could come back to haunt me, head to spear-ip.com/quiz to find out the legal blind spot that is secretly killing your business and not only to find out about that blind spot, but how to fix it.
After this video, you’re going to stop Googling and Googling and Googling legal email marketing practices, because you’re going to get it. I have three steps for you to follow to finally rid that feeling of, “Eh is this, okay?” when it comes to how to legally send out email marketing content.
There are 3 key areas that we got to focus on when it comes to legally handling email marketing: Sending, Content, and Unsubscribe.
Email Marketing Tip #1: Sending
You want to be sure to send emails to people who have actually affirmatively opted into your email list. I kind of tricked you because this isn’t actually a legal requirement. I know, right? A lot of people would have you think if you’re crowdsourcing these kinds of tips in Facebook groups, that this is a legal requirement, but it’s not. However, it is a really, really, really good idea. So many services like MailChimp, and ConvertKit require that you only send emails to people who have opted into your email list.
That’s because people who have not opted in and receive your emails will mark them as spam, which makes it harder for these services to deliver emails to people’s inboxes. Plus, don’t you want people who actually want to read your stuff to get your stuff? I wouldn’t want someone who didn’t opt into my email list to get my stuff.
Email Marketing Tip #2: Content
These are just some little boxes to tick when it comes to the content of your email marketing messages. The “from” designation has to be accurate. If your email is coming from a brand, it can’t say that it’s coming from an individual or pretend to be an individual. The subject line of the email should not be misleading, or the content of the message. That should also not be misleading. The content of the actual email should be accurate. Here’s one you might not know – the email has to have your actual valid postal address. That’s why you see addresses at the bottom of a lot of marketing emails. And the message should disclose that it’s a marketing or advertising message.
Email Markeing Tip #3: Unsubscribes
It’s kind of like road rage when you unsubscribe from a list like three times and you still continue to receive their email messages, right? Every single marketing email that you send should have an unsubscribe option. And it shouldn’t require them to click through five times either. It’s got to be visible, it’s got to work and you’ve got to honor it. You can’t require a fee or other exchange of information in exchange for that unsubscribe. Make it easy for them.
So those are my three steps to how to legally send out email marketing: Sending, Content and Unsubscribe. I hope that helps you to avoid Googling that topic in the future!
I want you to head right now to spear-ip.com/quiz. I’m going to help you find that legal blind spot that’s been kind of lurking in the back of your mind, on the bottom of your to do list, and in the back of your business for a while now. And then I’m going to tell you how to fix it. Again, head to spear-ip.com/quiz!
So, cancel culture is a thing now. And it doesn’t look like it’s going away anytime soon.
If you operate a business online, you might be afraid of a little public social media shaming. In this post, I talk about two lawyer-approved ways to cancel culture proof your business while everything is still peachy.
Cancel-culture-proof tip number one: embrace the morality clause.
Do you remember the whole Tiger Woods sex scandal thing? It was way back in 2010. And it’s hard to imagine a time when someone could be shamed off of Instagram. Tiger lost $22 million in endorsements because of all of that.
This is why morality clauses exist. They exist for reasons of “scandal” and “moral turpitude” and “public disrepute”… Basically, bad behavior. (We talked about them once in the context of breaking up with a brand.)
It might be unfair for you to get caught in the crossfire if a company that you’ve partnered with as a content creator is caught under fire for doing something wrong and you are guilty by association. But it can happen. That’s why you should make sure that any partnership or collaboration contract that you enter into has a morality clause.
This will give you an out. You want to be able to terminate for bad behavior — and you can negotiate and come up with whatever “bad behavior” means to you. If it hits the fan with a brand or business that you’ve partnered with, you will be glad that the morality clause is there.
Tip number two, snap up “anti domain names.”
A little thing called First Amendment free speech allows us to criticize public figures, political stances, and other things. So if someone buys a domain name with your brand in it, but it’s something like YOURBRANDSUCKS.COM, or IHATEYOURBRAND.COM and they use that domain name to comment on and criticize your brand…
Guess what? You can’t really do anything about it, because they’re protected under First Amendment free speech.
These are what I call anti domain names… the “I hate” thing, the “your brand sucks” thing. So think about snapping them up. You might be surprised at how little they might cost.
So number one, morality clause.
Number two, snap up those anti domain names.
These are just some safeguards that you can put in place while everything is peachy keen, just in case of a social media uproar later on.
I hope that helps you to feel a little more at ease when it comes to cancel culture-proofing your online business, and I’ll see you next time.
My top four legal tips for online businesses. In this post you’re going to get an idea of my top tips when it comes to disclosures, copyright, and ideas.
Disclosure Requirements Apply to All Media.
First, remember that disclosures apply to all media. That means it’s not just for sponsored posts on instagram but also emails, blog posts, videos, photographs, anywhere where you’re talking about something and you have a material connection to that brand or that business — and remember a material connection can mean you’re getting paid, you’re getting free stuff, if it’s a family relationship — anytime there’s a material connection you have to disclose that to your viewer, your audience, your reader. And that disclosure should be conspicuous! That means it shouldn’t be hidden in tiny fine print at the bottom of a marketing email or affiliate email, it shouldn’t be at the very bottom of a blog post because someone might not scroll all the way down to the bottom of a blog post. Conspicuous means hard to miss.
Copyright Ownership Happens Earlier Than You Think
Next, when it comes to copyright, know this:
You own the stuff that you create by default. You don’t have to register it with the Copyright Office in order to own it.
(I say you own it and there are some exceptions when you’re an employee creating stuff for your employer.)
But for the most part, the default rule is you create it, you own the copyright to it, boom. You don’t have to mail it to yourself, you don’t have to register it — although, and that takes us to number three…
Copyright Registration Is Worth It
Copyright registration does have its benefits for a bunch of reasons. Like:
You don’t have to prove that you own it;
You can get statutory damages ($$$$); and
You can get your attorneys’ fees back.
Understand the Law of Ideas.
Finally, let’s talk for one second about ideas. An idea is just an idea.
Want to know how to tell the difference between copyright and trademark? It’s so super easy and not complicated, I promise you won’t forget after you read this post. I’ll even give you a little trick to remember so that you’ll never forget again. And if you stick around to the bottom, you’ll learn more about my latest free resource for content creators!
Alright, are you ready? Here comes the definitive way to remember the difference between copyright and trademark.
First, we’ll talk about trademark. Trademark is branding. Trademark is something — like a word or a slogan or a logo — that signifies your brand. It tells people where a product or service originates: whether it’s you, your company, whatever it is. You see the Nike swoosh, you know where those shoes came from. You see the red can with the white script, you know, it’s a coke. So think: trademark, branding. Trademark, branding. Trrrrrrademark? Brrrrranding!
Next, let’s take a quick look at copyright. Copyright protects creative works — technically original works of authorship. And there are a few specific categories of things that copyright protects. (There are also certain things that copyright doesn’t protect, like facts, or lists of ingredients.) But like I said, copyright protects your creative works like art, and music, and video, and even a downloadable PDF, graphic designs, infographics. So copyright, creative works, copyright, creative works.
A quick trick to help you remember the difference between copyright and trademark.
The CARES Act created a wonderful opportunity for businesses struggling because of COVID-19. That opportunity is through the PPP or Paycheck Protection Program. This post will talk about the PPP for bloggers, podcasters, and other self-employed individuals doing business online.
Note: This is ever-changing! There are several different interpretations of the PPP and I will continue to update this post as much as I can.
An explanation of what the Paycheck Protection Program is, in 15 seconds
The PPP is a loan program through the SBA. It was created as part of the CARES act for businesses adversely affected by COVID-19. (And really, what business isn’t, aside from maybe Zoom and the grocery industry?)
What it means when people say this is “free money”
I repeat, this is a loan program. But, it’s a loan you don’t have to pay back…so long as you use the funds for certain specific things, like payroll expenses. Hence, free money.
Are bloggers, podcasters, and self-employed business owners eligible for the PPP?
Short answer: Probably.
Long answer: So long as you meet the following requirements, which you’ll have to sign off on when applying for the loan.
Less than 500 employees (with some exceptions that probably don’t apply to bloggers and podcasters);
In operation as of February 15, 2020;
Current economic uncertainty makes the funds necessary to support your ongoing business operations;
Funds must be used to retain workers and maintain payroll, OR make mortgage interest payments, lease payments, and utility payments;
You haven’t received another PPP loan; and
You had employees whom you paid salaries and payroll taxes OR paid independent contractors.
So that last one, #6, is the kicker.
Technically, if you’re a single-member LLC, you don’t pay yourself a salary or issue yourself a 1099. So the big, bad question that no one has made crystal clear yet is, does a draw paid to yourself, as a self-employed person, count as a salary or wages for PPP purposes?
We know that expenses you incur to pay any employees definitely count.
With respect to “purpose of the loan,” payroll costs consist of compensation to employees (whose principal place of residence is the United States) in the form of salary, wages, commissions, or similar compensation; cash tips or the equivalent (based on employer records of past tips or, in the absence of such records, a reasonable, good-faith employer estimate of such tips); payment for vacation, parental, family, medical, or sick leave; allowance for separation or dismissal; payment for the provision of employee benefits consisting of group health care coverage, including insurance premiums, and retirement; payment of state and local taxes assessed on compensation of employees; and for an independent contractor or sole proprietor, wage, commissions, income, or net earnings from self-employmentor similar compensation
So, based on what we’re told from the application, these things probably count, too:
A monthly draw you give yourself from your LLC
Wages you earn from self-employment
How much money can you get from the PPP?
Here’s the simplest way to make that calculation if you are a sole prop or LLC that files a Schedule C along with your income taxes:
Get out your 2019 return (your 2018 return is PROBABLY ok if you haven’t filed for 2019 yet, but they haven’t explicitly stated that the 2018 return is ok, just FYI).
Flip back to your Schedule C from your business.
Look at line 31. Divide that number by 12. That’s your average monthly payroll amount! Now multiply that by 2.5, and that’s the amount that you can ask for.
When bloggers, podcasters, and other self-employed online business owners can apply for PPP
Now. Like, RIGHT NOW.
Technically, “small businesses and sole proprietorships” can apply as of April 3, 2020. “independent contractors and self-employed individuals” can apply as of April 10, 2020. This is about as clear as mud, because you can be self-employed, and a sole prop. Or an independent contractor, and a sole-prop. Or a small business, and self-employed. So I repeat, if you think you qualify, just log into your bank and apply now.
Because the thing with this loan is that it’s only available until they run out of the funds earmarked for it. 10% of the entire amount earmarked has already been applied-for.
Not trying to instill panic, here. Just want you to shake a leg and apply if you are eligible!
Whether you’re a brand owner or a future brand owner, you start to do a gut check this time of year. The soon-to-be brand owner? She starts her engines and gears up to launch her business. The existing brand owner? He does a review; thinking through how the previous year went. What to both types of entrepreneurs have in common? They must be thinking about an exit strategy. (Spoiler alert: taking proactive steps to protect your IP now will add value to your business, no matter the exit strategy you choose.)
“I have a REALLY great t-shirt idea.” “I’ve got an idea for a funny t-shirt slogan.” Many an IP attorney has heard this phrase at least once. Just like protecting an idea can be difficult, it’s challenging to protect a t-shirt idea. But a lifestyle brand? Now you’re talking. But be proactive: know how to safeguard the protectable elements of a t-shirt or lifestyle brand.
So, you’re thinking about registering a trademark. You have worked hard to choose a mark that distinguishes your product or service from the competition. Now, you’re wondering if it’s possible to protect it. “Cheap” online legal services like Rocket Lawyer, Legal Zoom, and Trademarkia sure are tempting.
It’s that special time of year where suddenly we’re careening towards April 15. Engaged a trusted CPA? Check. Looked over the books and expenses for the last year? Check. But wait! There’s one more important deadline for Tennessee businesses and business owners: the deadline by which you must file your annual report.