The telltale sign that you have a DIY contract. In this video, I’m going to tell you about the telltale sign that I see that tells me you have a DIY contract, and why it’s really not so good.
Stick around to the end and I will tell you about my brand-spanking-new resource for content creators that will help you deal with copycats. I’m Maria Spear Ollis, lawyer for content creators, and this is the Spear IP show.
Before I get into that telltale sign, I want to explain to you what happens when there’s a dispute over your contract. Basically, if there’s ever a dispute, and something in your contract is ambiguous, that ambiguity is resolved in favor of the person who did NOT draft the contract. In other words, the contract is interpreted against the person who drafted the contract that is you.
So what’s the telltale sign that you have a DIY contract? Your defined terms are all jacked up.
What the heck is a “defined term”?
A defined term is that capitalized word in your contract. You usually have several defined terms, things like “Company,” “Deliverables,” “Services,” that kind of stuff. They have a very specific definition within the context of your contract. So the “Services” specifically means blah, blah, blah, blah, blah, blah, blah, blah, blah services, right?
So here is the problem that I see. Maybe you refer to yourself by your actual name in some paragraphs of your contract.
“Jane Doe will provide the following Services.”
Then you refer to yourself by something like “Company” and you say something like “Company has approval over all artwork.” Okay, well, you’ve referred to yourself as Jane Doe, you’ve also referred to yourself as Company… it might be a little ambiguous who “Company” refers to. So if there’s ever a dispute about approvals, now you have a contract term that says Company must approve all artwork. If it’s ambiguous, if it’s hard to determine what that means, it’s not going to be interpreted in your favor.
So that’s why it is super, super, super important to make sure that all of your defined terms in your contract, line up. That means being consistent in what you call yourself and how you label other things.
I hope that helps you understand the number one telltale sign that you have a DIY contract, and I’ll see you next time.
CONTACT COPYCATS YOURSELF WITH CONFIDENCE
A Content Creator’s Guide to Dealing with Copycats
Itching to contact that copycat, but not ready to go full lawyer-cease-and-desist, yet?
In this free resource, you’ll get:
A little checklist to run through before you contact someone yourself;
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.
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.
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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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!
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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.
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 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.
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 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.)
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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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!
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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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.
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.
“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.
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.