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Breaking Up With A Brand (+ protecting yourself in the future)

It’s no secret that we are in the middle of a huge, huge civil rights movement. And one of the many consequences of that is that our eyes are being opened as to the values of many brands. Consumers are looking into the values of different companies and different brands where they spend their money.

You, as an influencer might find yourself wanting to break up with a brand because your values and that brand’s values don’t align. Maybe that brand is a little too apathetic for your taste, or the brand has been outwardly, atrociously racist.

So how do you break up with a brand? What do you do? In this post, you will learn what to look for in your existing endorsement contract if you want to break up with a brand. You’ll also learn about a few things to have in place before you sign with a brand. So here we go.

Breaking Up an Existing Brand Deal

Let’s first discuss where to look if you’re thinking of breaking up with a brand you’re currently involved with. Number one, you want to look at the termination section in your existing contract. In other words, under what circumstances can a relationship be terminated? Most likely, your contract will say something about when you can terminate. But you also want to make sure and see what happens to any existing obligations if you terminate the agreement. Also, what happens to the money if you terminate?

Number two, if there’s nothing there to guide you, then think about having a conversation. It could be just a matter of you saying, “Look, I’m very passionate about X. You do not seem to feel the same way. We, as an influencer and brand, don’t make sense. I don’t see any reason to continue this relationship further.” You never know where a conversation might get you.

Protecting Yourself in Future Brand Deals

There are some things to look out for before signing your name on the dotted line in future brand deals. Ideally, you build in the ability to break up with a brand if you don’t jive with it any longer. You’re also protecting yourself from getting the axe under some unfair circumstances.

So first, again, make sure that the termination section is there to protect you. You want to understand when it’s okay for you to terminate, and understand what, if any, waiting periods apply if you want to terminate. Sometimes, for example, 30 days’ notice might be required. And then, again, you want to understand what happens to any money they paid you up front if you terminate.

Next, consider a mutual morality clause. A morality clause is something that you find in a typical endorsement contract. Even before the age of Instagram influencers, you’d see a morality clause. You think about this in the context of athletes more traditionally. What comes to mind for me? Tiger Woods and his whole cheating/ sex scandal thing. He lost $22 million in endorsements throughout the course of the year when all of that came out. It’s meant to cover scandals and “bad behavior.” But again, we could argue that it should cover “bad behavior” on the part of a brand, too. So if there’s a morality clause that speaks to your behavior, turn that right around and make it mutual. (Mutual meaning it goes both ways.)

Another, more creative option is to put in a clause that basically says:

“Hey, I, influencer, I talk on a number of things that I’m passionate about. And if there’s a topic that I have posted about or spoken about before, then you cannot terminate this agreement based on me talking about that, again.”

This idea is not the end-all-be-all because it doesn’t protect you from obviously talking about new passions, new interests. But it’s an additional protection that you might think about.

Finally, in terms of protecting yourself in the future, do your due diligence. It’s impossible to find out everything, but do your due diligence. Research a company before you sign with them. Look into what people have said about them. Snoop on Glassdoor to see what employees and workers have said about them. Look on social media, see if anyone has had issues not only with the company itself, but maybe one of its products or services. Do due diligence, do due diligence (that’s tongue twister, hmm?). Just look into a company before you sign.


So you’ve got some things to look at in your existing contracts in terms of finding out when how you can terminate under that contract and what happens if you do terminate. You can think about having those conversations with your contact at the brand if your contract is not clear. And then in the future, make sure that termination clause is there to protect you. Think about adding a mutual morality clause. Also consider that kind of more creative clause where you’re saying, “Hey, I have posted on these topics before, and if I post about them again, that can’t be grounds for terminating this agreement with me.”

So I hope that you have found this helpful in terms of breaking up with a brand and putting things in place to protect yourself before signing with a brand.

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3 Steps to Take After Infringement Happens

steps to take after infringement

By the end of this post, you’re going to have a good idea of three steps to take after infringement happens. (Like the stages of grief, but different and a little more actionable.) There is life after infringement, so let’s talk about what happens.


Feel the feelings, and then, handle it.

First things first, when infringement happens, you have to handle it in whatever way makes the most sense for you. I have a separate post on your options when you’ve been infringed. And that can range from contacting them yourself or submitting a takedown request, it can mean getting a lawyer involved and sending a cease and desist letter or filing a lawsuit, and sometimes that can mean doing nothing. It’s usually worth talking through with a lawyer to see what the best option is for you. But whatever you choose to do when infringement happens, first, you have to handle it.

Next step to take after infringement? A gut check.

Once the actual infringement is behind you, you want to do a gut check or an internal audit. An audit in this context means asking these types of questions:

  • How did this infringement happen?
  • Was there a contract that should have been in place that wasn’t in place?
  • Was there something that made you particularly vulnerable?
  • Could you have registered something with the U.S. copyright or trademark office that would have made this process somehow easier or less stressful or less expensive?
  • Would it have made a difference if something was registered with the copyright or trademark office?

Some of these things might be things to talk through with a lawyer. That internal audit is a good practice to see how this happened, what could have been done to lessen the effect on your business, and what can be done to prevent future incidents (if possible!).

And finally, don’t stop creating after infringement. Keep going.

Please don’t let infringement be a hindrance to your creative abilities. Don’t let it stop you from continuing to create that awesome content. Don’t let someone else’s infringement of the product of your blood, sweat and tears stop you. It can be frustrating or annoying to hear this sometimes, but mimicry is a form of flattery, right?


So remember, don’t let infringement stop you or slow you down, just: 1) Handle it. 2) Figure out what could have been done differently or what could have been in place to help or diminish the stress of the situation; and 3) keep on going.

I hope this helps you understand some steps to take after infringement happens. There is life after infringement!


FREE AUDIO DOWNLOAD + PDF GUIDE

easy-to-understand legal guide for influencers

an explanation of 4 frequently-googled topics + 4 easy-to-DIY action items

with Maria Spear Ollis

Your information will NEVER be sold or shared with anyone outside of Spear IP, and will always be used according to Spear IP’s Privacy Policy. By signing up, you will receive relevant email updates from Spear IP from time to time (but you’re free to opt out if you wish).


IP Protection for Podcasts

woman researching ip protection for podcasts

By the end of this post you will understand a little bit more about IP protection for podcasts. I’ll go into some of the different elements of your podcast and whether they are protectable under copyright versus trademark. Here we go!

Your Podcast Name.

Easy one, right?

That is protectable under trademark law. The name of your show is a brand name. As such, it acts as a “signifier” or “identifier.” In other words, it identifies the source of your podcast.

So, podcast name = trademark.

Show Notes.

The show notes can consist of literally what you plug into Stitcher or iTunes as the description of your episode (in which case, text = copyright). Or, you can take a transcript of your entire episode and create show notes based on that transcript and post it to your blog. Again: transcript = text = copyright.

Your logo.

Your logo might appear on your website, it probably appears on Stitcher or iTunes. A logo, again, is a source-identifier and your listeners identify your podcast based on seeing that logo. So, logo = trademark.

Soundbites.

Next is a sound bite that you might share on social. You could share a clip on instagram or on YouTube. And sound, in this context, is an audio recording.

A recording is protectable under copyright law.

Hashtags.

Hashtags are a little bit trickier! Whether you are sharing an episode or a snippet of an episode online, on a blog post, or on social media, you’re likely using a few hashtags to generate attention and to get that post seen.

Well, hashtags like #detroitpodcaster #nashvillepodcaster #kansascitypodcaster are not necessarily branding but are descriptive in order to get users to find you more easily.

So hashtags can be trademarks. You can use your own trademark as a hashtag to kind of label that post. But more likely hashtags are not protectable under copyright or trademark and they’re just descriptors.

Again, though, it’s important to understand that if you’re using an actual trademark as a hashtag, obviously, that is a trademark. (And you don’t want to use misleading hashtags, either, or anything that could lead to #trademarkinfringement.)

Video Content.

Another easy one!

Whether you are recording your podcast to be released on YouTube — releasing an audiovisual recording — or releasing just the audio recording with some kind of other visual element to it, whether it’s a graphic or otherwise — that video content is prime for copyright. It is creative content that is protectable under copyright law.

Your Podcast Icon.

That little square graphic. It goes along with each podcast episode and that identifies your podcast among the millions available in the several podcast apps.

It’s almost like an album cover, right? It is album artwork for the podcast world.

Even though your logo very well might appear on that graphic, that graphic itself is artwork. It is a graphic design.

And so, icon = artwork = copyright.


So I hope that quick-fire round helps you understand IP protection for podcasts. Now you have an idea as to what is protectable under trademark versus copyright.


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3 Benefits of Registering A Website with the Copyright Office

woman contemplating whether to register a website with the copyright office

Pretty self-explanatory by the title: you’re going to get the top three benefits of registering your website with the Copyright Office. Let’s go!

If you’d rather watch/listen instead of read, click here!

Benefit of Registering A Website with the Copyright Office #1: Presumptions. 

Now, before your eyes glaze over, let me give you a little explanation of what a presumption is.

Think of a presumption as an assumption. So, what things would you prefer to be assumed in a copyright infringement lawsuit?

Well, if you register the website with the Copyright Office, the presumption is that you are the owner, and that everything in that registration is valid. So, let me put it a little bit differently.

You don’t want to have to prove that you’re the owner, and you don’t want to have to prove that everything about the copyright registration is valid, right? That the information in that application is valid.

Instead of you having to prove that you own it, the other side will have to prove that you DON’T own it. Got it?

So it helps to have those presumptions in your favor.

Benefit #2: Potential to recover statutory damages.

Statutory damages are something in the U.S. Copyright Act that say you get between $750 and $30,000 per infringed work.

So if your website’s infringed, and this goes to court, you are automatically entitled to damages inbetween that range.

Yes, it’s a big range, and it can depend on the judge you get, but if you can prove WILLFUL infringement, that number bumps up to $150,000.

You might be thinking “$750 on the low end doesn’t sound like much.” Well if you don’t have your work registered with the Copyright Office on time, then you are limited to what’s called “actual damages,” and that’s usually the other side’s profits. Well, they might not have any profits to show from the infringement. So then you really aren’t entitled to much.

So between $750 and $30,000 sounds pretty good.

Benefit #3: Potential to recover your attorneys’ fees if it goes to court.

Let’s say you don’t ever want to go to court. Ok, you start with a cease-and-desist letter.

Well, if you’re on the receiving end of a cease-and-desist letter, and you know that if this does go to court you’re going to have to pay the other side’s attorneys fees, you’re going to want to settle real quick, right?

By having in your letter that you own a registered copyright, that adds a little extra boost to your letter, right? Because they don’t want to be on the hook for your attorneys’ fees, so they don’t want to go to litigation because that’s a lot of attorney time. They’re more likely to say “let’s just settle this now so we don’t have to pay attorneys’ fees.”

So there you go. You’ve got your presumptions, you’ve got your statutory damages, and you’ve got attorneys’ fees.

Three good reasons to register your website with the Copyright Office.

Enjoy those three little remedies. And I hope this helped you to understand the three major benefits of registering a website with the Copyright Office. 

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What the SCOTUS Sales Tax Ruling Really Means

what the SCOTUS sales tax ruling really means spear ip fashion law internet law

Last week (specifically, on Thursday, June 21, 2018), the Supreme Court ruled on a South Dakota law relating to the collection of sales tax for online purchases. Cue a frenzy of brands and online retailers trying to decipher what this SCOTUS sales tax ruling really means. Here’s a breakdown of the decision.

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My #ShopLocal #SupportSmall Wishlist

Spear IP fashion law #shoplocal christmas list

It’s the most wonderful time of the year — especially for independent brands! While the rest of the year might present fewer opportunities to get eyes on your products, the holiday season provides opportunities for more traffic (of both the in-person and online variety). Me? I’ve put together my own little #shoplocal #supportsmall wishlist, just in time for Christmas.

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EntreprAdmire June 2016 Edition

EntreprAdmire June 2016

Though the summer solstice is still one week away, summer is in full swing in Nashville, Tennessee. This month, I #EntreprAdmire these two brands for making a splash in Nash.

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EntreprAdmire May 2016 Edition

EntreprAdmire May 2016

“Education is the kindling of a flame, not the filling of a vessel.” With that quote, Socrates provides a great tip for entrepreneurs. Goal-setting and continuous learning are two habits that are imperative to entrepreneurship.  The act of writing down goals has been said to be quite effective in actually accomplishing goals, and the act of learning or improving upon a skill often finds itself on an entrepreneur’s list of goals.  So let’s dive into the brands I #EntreprAdmire this month in the hopes that they may inspire you to set your own goals and learn a new skill or two.

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EntreprAdmire April 2016 Edition

EntreprAdmire April 2016

It’s springtime in Nashville! I don’t believe there is a more beautiful time of year in this great city. Now that spring has sprung, brides are putting the finishing touches on their wedding plans, Nashvillians are getting ready to educate themselves, and participants in Nashville Fashion Week are high-fiving for last week’s job well done. Enjoy reading about the three brands I #EntreprAdmire this month.

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EntreprAdmire March 2016 Edition

EntreprAdmire March 2016

Your friendly neighborhood #EntreprAdmire-r here. Ready for a dose of March Radness? It’s Women’s History Month, so what better time to give kudos to those [female] entrepreneurs or fem-focused brands that have a little something that make them the rad, admirable entrepreneurs that they are.

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EntreprAdmire February 2016 Edition

EntreprAdmire February 2016

A new month, a new love letter from your not-so-secret EntreprAdmirer. What’s #EntreprAdmire? It’s a monthly series that highlights brands or entrepreneurs that have a certain “it” factor that is, well, admirable. Love is in the air this month, and with it, DIY-activities, chocolate, and some special happy-hour-helpers.

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EntreprAdmire January 2016 Edition

EntreprAdmire January 2016

#EntreprAdmire: A monthly series that highlights brands or entrepreneurs that have a certain “it” factor that is, well, admirable. This month, the focus is launching, growing, and getting organized (because what better time than the start of a fresh, new year to start a fresh, new project).

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