Legal Q & A for Creative Entrepreneurs - Brittany Ratelle - Live IG replay

Hi guys, hello and welcome to the latest edition of My Legal Life. Okay, this is my Q&A that I jump on and do. I'll give it a couple minutes to do its thing. Do, do, do, do, do. Meanwhile, I'm gonna queue up my questions that I got today. I got a few in, so my normal deal, well, I'll give my introduction when people start hopping on here. Give them a second because everyone's doing very busy things. Hey Tim, hi, nice to see you. Thanks for jumping on. So, um, okay, so my name's, uh, Brittany Ratelle and I'm an attorney for creative entrepreneurs and I jump on, um, every Tuesday night. I try to at least and make myself available to answer any questions about running your modern small business, your creative small business, um, kind of what my specialty is. But anyway, um, because I'm a small business attorney and that's what I do, and I help creatives with their businesses. So I like to make myself available. I know that sometimes it's hard to find someone to chat with who understands your business and your business issues and that can just answer some questions for you about what's going on and how can you do things that will protect your business, how can you stay out of trouble, how can you resolve conflict, how can you save money, time, energy, all of that. Stress. So that's what I'm here for. And so my name is Brittany Ratelle again, and I am a licensed attorney in Utah and soon-to-be Idaho. They're waiting on one last thing, of course, before— hey Jason, good to see you— before they approve it. And anyway, that's what I do. So I love helping out my creatives. So okay, I'm gonna go over here and then see Hey, Isbell, nice to see you. Um, and then I have— I've got a couple questions to zip through, and then I will open up. So if you have any questions while I'm chatting, um, if you like what you're hearing, give me some hearts, give me some thumbs up, give me some feedback. If you— if I start going too fast, if you're not understanding what I'm saying, then give me some question marks. Um, let me, let me know. Give me some, you know, make it, make it interactive, guys. You know, use those emojis, whatever. Uh, you guys love it. So, and that helps me know how I can make sure that I'm doing a good job and, and connecting with you guys, and that I'm giving you the information that you really want that's actionable, that's going to be in your best interest. So, because that is what I'm here for. Okay, um, so the first question that we got— hey Tracy, um— was, um, someone wanted to know, when do I file a trademark? They said, I'm not making much money in my business yet, so just wondering timing-wise how that works out. Um, So I'm going to direct you to a couple— thanks, guys. Um, I'm going to direct you to a couple resources I have, and then I'll answer the question. Um, the first is I do have a little, um, a highlight bubble in my Instagram, um, that's all about why you want to follow a trademark and what a trademark might offer for your business. Um, so I think that's a really good place to start, is to watch that bubble if you haven't, because it'll give you a good overview of exactly what's the deal with a trademark. Um, And when you know what the benefit is, and I think it's easier to try to make that decision of when, when is a good time. So I think a lot of people, um, maybe misstate or have heard myths or other things about what a trademark can and can't do and protect you. And so that's why it's hard for them making that important decision about when to invest, because it is an investment. Um, it's not something that you have to do with an attorney. You can file on your own. However, I will say that as someone who does trademarks and someone who gets called in to help when applications go wrong and when they get abandoned or when they office actions and when people get stuck, basically, that it is a lot better to do it with an attorney. Especially because if you're not doing a full search before you get your trademark, then it's really hard to know if, if what you're applying for is in the right category of goods and services, if your description is on point, if you're unnecessarily narrowing what you're trying to get your trademark in. 'Cause the way that trademarks work are they are protection, they're really protection for a consumer. So when a consumer buys a good and it's trademarked, you know, the little, it's TM is a provisional, like that's a common law trademark. So that's just if you were asserting like, hey, I'm treating this as a trademark. You actually don't have to do anything. You could be using the TM with the circle right now if you want to. But if you wanna change that to an R to a circle, the R is the official thing. The R is the gold standard. The R is the registered mark and that's what we want. Once you have an R in something, you get to stop and have the right to stop people, um, from using that mark in the same— hey Lynn, thanks for jumping on, um, in the same— hey Charlene, thanks, um, from in the same category. Which makes sense why Delta Faucets and Delta Airlines both have trademarks, completely different categories of goods and services, um, and no one gets confused. You were so cute in your KSL segment. You did a really good job. You always do. Um, And so, so that's kind of what trademark is about, is about protecting the consumer. Obviously brands like them, like they're great because you can get someone to protect your brand name and stop other people from messing with your stuff and can get that locked away. And there's a lot of brands who are, you know, they highly leverage those trademarks and register their properties and domains. And like Disney's one of them, you know, they have, you know, hundreds of trademarks in their portfolio over all kinds of things in their empire. To protect them and make sure that people can't use them without a proper licensing agreement. And that is how— this one way that they make a lot of their money. That's part of their revenue strategy. So you haven't even watched it yet. Of course, you're just busy, you know, with your 5 kids and redoing all your stuff in your multiple businesses. Um, okay, so in terms of a trademark, so when I do these for clients, um, I— it's $1,000 in one category of goods or services. Okay, so I know as an attorney, like, I've been told like I'm not supposed to tell people that. I'm supposed to like get you on the phone call and wine and dine you and tell you and then like, you know, get you all convinced at it and then like tell you what it is. But I'm not, I'm not interested in wasting your time or my time. So when you do it with me or an attorney, it's $1,000. And that's what most trade, real legit trademark attorneys are gonna, are gonna charge you or upwards. Okay, if you go to your, a big fancy law firm or a larger, even medium, you know, business quote-unquote business attorney, they're probably going to charge you more for that, um, especially because they probably don't do a ton and they don't know what they're doing. And so they're going to take longer and be slower, and they're going to charge you for that. So, um, so, and so if you don't have money for that yet, which I totally get— I get the bootstrapping era, you got to be smart with your resources— um, if you don't have money for a trademark yet, what I would suggest you putting some time slash money into is at least doing a trademark clearance. So search. Okay, this is a two-part search. Okay, the first is jump on Google, the ye olde Google, and do a really thorough search of the name that you are planning on using for your business. Okay, this is either a business or product line or a slogan. Those are like the most common things that we trademark. Okay, and I mean, I want you to Google it and put it in, you know, use some Boolean operators and do— yeah, and taking notes. Check for different spellings, okay, knowing that like, you know, S's and Z's can be interchanged. Check for different plurality, all of those things. Check for words that could be mashed together or split apart, okay, and like we need to be checking past the first page, guys. Like we need to be going deep into Google and see what else is out there, okay. It's not necessarily, you know, you're going to be in trouble if there's someone else with a common domain or like a restaurant or an Etsy shop or something, But it's something you want to be aware of, okay? So that's the first step. Step number 2 is you're going to want to get on TESS, which is a Trademark Electronic Search System, okay? TESS. And it's, you know, '90s ghetto database, because what kind of government website wouldn't have that? Because it's so helpful to us. And you're going to want to search for your term. Again, you're going to want to use the same thing in that you are looking for using your Boolean operators, you know, your little asterisk or your— excuse me— exclamation point to search for different pluralities, different spellings, one word. If it's like a two-word thing, you just want to search for one. You want to search for 'and' and 'together.' Like, really, really thorough search, guys, to see if there's any other registered marks that are out there. Okay? And the reason why is because in the US, we give some benefits for the first person to use something in commerce. Like, not that like it's an idea in their head, but like they're actually selling something. And we also give some benefits to the first to register. Okay, when you are the first to register and to get that R, you have the presumption that you were the first to use it. Okay, and that you've locked away those rights. Someone else has to come along and then overcome that presumption. They— you are queen of the rock and they have to push you off. All right, that's really great because you get rights to that name. You can get people to stop and send them a cease and desist. They're going to take you seriously. Should a blog name be trademarked? If you like the blog name and it's meaningful to you and you'd be bummed if you couldn't use it anymore, if you had to rebrand, then yeah. I mean, especially if you ever can see that if you launch your own products or own services, um, that they would be connected to that blog name. Like if you have a vision that if you've grown, per se, a craft or remodel blog, um, and someday you might have an online course or an in-person workshop or something else, a product connected to it, to that same name, then yeah, I would definitely say trademark it. If not, if it's just going to be a blog, then maybe you at least just do the search and then stop there for now. But, you know, I had a phone call from someone today. Yeah, that unfortunately they've been, they've been using a name and they got one of these cease and desist letters. And so they're going to be the ones who are going to have to change their name. So, um, they're no fun to get. And, you know, at best, you just have to rebrand and pay for all of that, um, you know, the domain, new handles, um, redo all your branding and all your materials, your collateral and stuff. Um, at worst, you could be sued for damages, um, and someone could say, hey, we think that you've been stealing our sales, that people have been confused and buying your thing when they thought it was our thing, um, and we want to know how much you've been selling the last 3 years, your sales records, and we want damages. Yeah, it's not— it's— yeah, it's, it's not something to take lightly. Okay, so that's how trademark works. So again, listen to that highlight bubble, um, if you want more information on that. The other resource I'm going to have, um, I'm going to pull up my podcast because that'll tell me, um, how many— I'm not good at memorizing my episodes, and so I always need to look it up, um, because I have a podcast episode That's just on— all right, where is that? There it is, my master spreadsheet of all my episodes. Okay, um, I'm always really impressed. Pat Flynn like has his all memorized and he has like 300. I have, you know, 40. I can't memorize them all. Okay, um, all right, copyrights versus trademarks, episode number 10. You'd want to listen to that, that would be super helpful for you. Um, and the other thing, the other one that you're going to want to listen to, let's Let's see, um, 6 Ways a Trademark Can Protect Your Brand, number 24. So listen to 10 and 24, they're gonna really help you out in terms of putting on that hat of like, what is this worth it right now, or when might it be worth it, or should I be stowing away some money every month so that's something that I can pay for, um, you know, just where on your business timeline in terms of your growth does that make sense. Because that's what it really matters, guys, is that what are your visions for this name, and that's That's the part that it's really helpful to have an attorney talk with you because if you have a grander vision for your brand name outside of maybe what you're doing right now and the name means something to you and you put thought into it or you built a brand or a following around it, then like let's get that protected. You know, let's not wait too long until we're in a situation where we have to change it or you've been boxed out. You know, doors have closed behind you. And now we can't get protection, trademark protection, in clothing or in paper goods or in like an online course or website. You know, those are all different categories. So those are the really common ones that I, that I do for people a lot. So, okay, so that's trademarks. All right, um, the next question that we had was, how do I know if my terms and conditions are legit or if I need to hire a lawyer, and how much should I pay? Um, great question. So, um, it's hard. I mean, without reading them, I can't tell you if your terms and conditions are legit. I guess the questions that I'd want to know are Who wrote them, or where did you get them? Did you find them online? Um, they could be okay, they could not be okay, which is what's— that's what's hard when you just copy and paste something that's, um, that someone else put on their website. So because you don't know where they got that, or where they copy and pasted, or if they were good about changing all the terms, or if it's been updated. Um, look, the 3 things that you need on your website, the legal documents— well, 2 legal documents and other ones a lot of people need— you need a privacy policy You need your terms, website terms, also known as terms and conditions or terms of service. And you need disclaimers if you have things like testimonials, affiliate links, if you talk about any financial results that you get, if you are in health and wellness space or anything touching like a regulated industry like medical, financial, legal. You need to disclaim and say, hey, I am not offering official medical advice. I don't diagnose or treat any illness or disease. Those kind of disclaimers. So those are the 3 things you have to have on your website. So you don't need to waste any more time Googling it, you don't need to be going deep into Facebook rants and Google, you know, in groups and debate whether you need it or not, or GDPR and we're not in the EU. Like, it doesn't matter, guys, because we have California privacy law that applies because you are selling to people from California. You also have COPPA, which is the Child Online Privacy Act, which applies everyone in the US. So you definitely need a privacy policy, you definitely need the terms and conditions, and if you fall into any one of those other camps I talked about, then you need some disclaimers on your website. So what I tell people is, of course, buy mine because they're awesome, they're reasonably priced, and the value that you get, the peace of mind in taking care of all these problems, you'll be set. Um, they're GDPR compliant. I sell them in my contract shop, it's creativecontracts.co. And you just, you buy once, you cry once, you upload them until there's a major revision in the law. Um, I'm, you know, if there's something else that happens that comes out, I will update and tell you guys, and I'll send an update to them. It's not— I'm not in the business of swindling people, okay? Um, that's not my game. But I am interested in having everyone make sure that they are getting the protection that they need on their website, um, and that it's not at a price that would break the bank. Um, so if you hire a lawyer, how much is it going to cost? Hard to say. I have heard from some people that they went to, you know, a business attorney in town, they went somewhere local and got charged hundreds and hundreds of dollars, sometimes even thousands of dollars for these website policies. And I guarantee that those attorneys went online and like found it somewhere or wasted an insane amount of time like researching when they shouldn't have been researching because they had no business doing it. So, um, I've had law firms buy my forms I've seen them come up on my PayPal and I know that they are just turning around and they are selling it to those clients and charging top dollar. So, um, I'm not going to chase them down, but that's just not going to spend my time. But anyway, so that, that's the reality of that situation. So again, if you're interested, if you know that your website policies are maybe not updated and they need to be, doesn't matter if you're selling from your website or not, doesn't matter if you have your own domain. Now if you're on Etsy or on another platform and you you know, you have like a shop on that, then you're fine, you're covered by them. But if you have your own hosted site in any shape or form, no matter the platform— Squarespace, Wix, Weebly, WordPress, Shopify, whatever— you need those documents and you need them today. So please make it happen, okay? All right, um, and then the next question that I got was when and what to copyright. So this is a really broad question, so I'm going to try to give just highlights and then I'm going to tell you to stay tuned because I have my new copyright course, Rip Off Resilient, is all about this. Because the aim of that course is to give real tools in the hands of creatives so that they can battle copycats and get the information that they need to protect their stuff from the awful digital world out there that thinks that anything that they see online is up for grabs. So, um, it's especially hard, you know, with— I don't know if you guys have seen the EU, they just passed a new article today, Section 13, which is basically what they're afraid of is it's going to make memes a thing of the past and it's going to put a lot more burden on platforms to police copyright policy. So it's really controversial because there's different sides against it. There's, you know, performing groups and like the Artists Union, you know, musical rights groups were for it. YouTube and Facebook and those major platforms are against it because they said it's really going to stifle speech and They say it amounts to basically that every single thing that gets uploaded to a content platform like that is going to have to be tagged and, I mean, run through a filter to see if it has any content. And that they're gonna— right now the technology, they said they're— it's gonna slow stuff down, A, or it's gonna have a lot of false positives where stuff's not gonna get uploaded because it's claimed that it has copyright. So anyway, that's sticky stuff. So when and what to copyright? And I assume you mean register your copyright. So registering is when you actually go on the official website, the ECO, the Electronic Copyright Office, and you register, you pay your fee and you register something. I would look at your things that are most valuable. One, I would look at your things that are like, if to your business, that means that you're making you the— your most money. Um, B, I would look at things that are stealable, so things that are really visible, if they've been shared a lot, if they were for a prominent client or placed somewhere else, like they're out there, they have high exposure. That's another area I would look at. Um, or C, you know, some combination of the above. You know, if you, um, have— if you can put a bunch of your things together in a collection to make it more cost effective, that's something you can look at because copyrights are a whole lot cheaper. They're only— they're $35 if you're an individual, and they're like $50, $54, $55 if you're an LLC. Which you should be. You should be an LLC. So really reasonable. I mean, I understand it's not reasonable if you have to— if you have hundreds of designs, but if you have something that came out within 3 months of each other, you can put them all in a collection together. This is what I do for like my surface pattern designers. I help them. I put like— if they have like a fall blossom, then we'll put all the blossom all together and we will register that collection, um, because they're, they're really at risk for copyright infringement. It happens all the time in textile and surface pattern And sometimes people just don't take you seriously until you've registered it. And especially with the new Supreme Court ruling, you are not allowed to file a lawsuit until you've gotten that registration back. It can't even be pending. And since sometimes it can take months, like 6 months plus for that to happen, that means that if you send a cease and desist and someone knows what they're doing on the other side, they're going to laugh in your face. They're going to be like, "La de la de da, come and get me." 'With your lawsuit.' 'Oh wait, you can't because you don't have your registration certificate in hand.' Hopefully Congress will fix that, but I wouldn't hold my breath. That's where we are on copyright. I do have another— I have a freebie resource that I'm launching to kind of help because I'm getting ready and geared up to launch this course. Stay tuned. I don't have the link on here yet, but I'm going to be announcing it this week and adding the link to my profile., and it's a guide of the most common things that creatives should be copywriting, registering the copyright to. Okay, it kind of lists it out by category of like, if you're, you know, visual work, this is probably what you can protect. If you're an embroiderist and, you know, embroidery artist, this is what you can protect, this is what you can't protect. So I'm gonna go through and I give you that guide so you guys can help you out. So, okay, um, so those are all the questions I had beforehand. Do I sell collaboration contracts? Yes, I do. Um, so that— the one that you're going to want for a collaboration, um, like between like a brand or a sponsor, or, um, like as an influencer, you know, that you're working with somebody and on their behalf you're either going to create your own content or you're gonna have some sort of branded content with them, you're going to want my influencer brand influencer sponsored agreement. So it's in my contract shop, it's awesome, um, it is battle-tested, you know, peer-reviewed. It's something that I use as a base, you know, when I'm drafting the contract for my private clients. And, you know, I make little tweaks too, but I've seen, I've seen some awful agreements out there because I've reviewed these for my clients. And sometimes when you're working with like a larger Fortune 500 company or something, or Fortune 100 company, um, they'll send you their contract. You know, if you are doing a deal with Southwest or Alaska, like, guess what, they've got a contract. I'm not saying it's a good contract, but they have one. Um, and some of those contracts are like old school, like talent agreements, as if you were doing like a commercial with them or something. Like, they're super not even relevant, and I've had to add in all kinds of stuff because like they don't talk about engagement rates in terms of like, hey, I'm not Instagram and I'm not responsible for what the algorithm does. Like, I just do my best work and then we leave it to the Instagram gods after that. They don't mention FTC disclosures. They don't talk about intellectual property rights the way they should. So all that stuff is really important, and you really want to make sure you have a handle in terms of when you're negotiating what exactly the deal is. Because if someone's asking for full commercial rights for something, that should be a different price point than if you're just licensing these images for them to use for a certain amount of time period or on a certain platform. Um, because if you see your stuff in Times Square which could happen, that should have come with a higher price tag. And if not, then you got ripped off, okay? You got had, and that's when you should have had me review your contract or use one of my contracts when you were working with them, okay? All right, I know we had another question that I missed up here, so I'm gonna go look, take a look at that. Okay, okay. Would you suggest doing a separate website for a new service if your business absorbs adoption education or keep it legally tied to your current website? So, um, let's see, it depends, I guess, without knowing what your ever— um, oh, what your other website is. So I, you know, I think it's fine if they're related, um, in terms of the information that's going to be shared and whatnot. Um, legally, I don't see a huge issue, you know, as long as it's really clear from the footer of either website that you can get to your legal policies. Um, I don't really see the risk factor increasing in terms of your exposure or risk management. So, um, I guess the question is, is there enough crossover and do you want people to be visiting back and forth, and do you want the branding to look, you know, similar, um, that you want it connected? But, you know, with all the stuff we can do now with forwards, you know, and permanent 404s and redirects and all of that, like, um, I don't think it really makes that big of a difference. So if you like one platform and want to stick there, then great, go for it. But legally, yeah, I don't really see an issue in terms of, um, you know, if you have different two businesses that are vastly different in terms of their risk management, then I would suggest having two LLCs. So even though I know that hires— you're gonna have to pay a little bit more to your accountant, you know, for the administrative and bookkeeping and stuff, um, but like if you have a website that, you know, you— it's just purely online and it's like, you know, you do food blogging, okay, pretty low risk, okay. And then you have like in-person events where you are— or say, let's say like you are— you have a service where you go to people's home and do something for them in their home. Those are very different liability, okay. This is almost no liability. Really, the only thing that's going to go wrong is if you use something you're not supposed to or contract goes south, okay. That's really like probably your only liabilities here, realistically, okay. When you're in someone's house, there's all kinds of stuff that could go wrong. You could get hurt, they could get hurt, you could hurt their stuff, you could leave a hot glue gun on and burn their house down. Like, all kinds of stuff could go wrong. That is a riskier business. You should definitely have that in a separate LLC. You should definitely have insurance, okay? So don't put those together in the same LLC, in the same business, unless you're okay that both of those are now going to be lumped together, and if one goes south, then the money from the other is also going down with the same sinking ship. Okay, does that make sense? So it doesn't exactly answer your question, but that's just a broader view in terms of when to separate businesses, um, that I think most people would agree. Okay, okay, I think that's all the questions, um, that I got today. All right, I'm gonna see— give you guys another minute. If there's anyone else who has any other questions, I'm happy to answer them, um, and let you know about the other free resources that I have for creatives, for creative entrepreneurs. So I mentioned I do have a podcast, Long Whip Creative Council for Entrepreneurs. So comes out weekly, um, sort of weekly-ish. I'm doing better, guys, okay? I'm reformed. Um, and it's all— it has a mix of interview style where I get on, I get creative entrepreneurs on, and they get to tell me their origin stories and what they're doing with their businesses, the lessons they've learned. They share, you know, some wisdom of the things that they're experts in, um, you know, the mistakes they made and what they would tell their younger business selves. So that's really helpful. A lot of people love those. Um, and then I mix that in with solo episodes where I deep dive into some legal topic that I get a lot of questions on, something that I know is going to be useful to you guys, that it's an FAQ. Um, it's an area that needs, needs some sunlight, needs some love. Um, so that's the other kind of style episode I do. Other resources, I do have a free legal checklist. So if you would like to have kind of a broad overview, a bird's-eye view of what legal things should I even be looking at or working towards, or if I'm gonna go and talk to an attorney, or if we're gonna decide to maybe work with an attorney or get legit, if we're ready to get legit, how do we do that? This is a document for you. Okay, this is the freebie for you. You can get that at BrittanyRatelle.com/freebie. Checklist. Okay, BrittanyRatelle.com/checklist, and you get that freebie. And you also get added to my email list where I give you more of these tips and tricks. I put on the links to these, these replays, so if you guys miss them, or you can scan because I'll put the kind of questions that we talk about, and that way you can figure out what— if they're relevant to you and what your business is about and if you want to listen. So Hey, those are my main resources. Otherwise, obviously connect with me on Instagram. That's my main jam, my main platform. That's where my people are, so that's where I am at. And don't be a stranger to jump in there if you have questions. Um, if you want to work with me one-on-one, the best way to do that is to set up a free consult slot, and that's on my website at brittanyratelle.com/services is how you get to that and has my online calendar. And you just book a— I give free 20-minute consult, so we can talk about your business, how things are going, maybe what challenges you're having or questions you have, where you want to go, and what legal can do to help get you there and what it should be doing to help protect your business now and in the future. So, and then I already told you about my contract shop, creativecontracts.com. So that is all the things, guys. That's all I've got for tonight. So thanks so much for being here. Thank you so much, especially watching the replayers. I appreciate you. And thanks so much for caring about your business, guys, and for being in this part of this crazy, beautiful, amazing, you know, creative entrepreneurship field, um, that is just blossoming and allowing, you know, freelancers and creatives and modern business owners to grow the kind of businesses they want. So I'm excited to be a small part of all of that, you know, great dream getting going on. So remember that you are a real business owner, so let's own our business, okay, in every sense of the word. Thanks and have a good night.