Legal Q & A for Creative Entrepreneurs - Brittany Ratelle - Live IG replay - May 7, 2018 session

Hi guys, and happy Monday night. So team, I was gonna try to get Facebook up on here, but it wasn't cooperating, and so I'm just gonna say screw it to Facebook tonight and we'll just do Instagram Live. So, and I did not put a post up earlier, so hi, hi guys. So if I don't get— I don't have any questions to shoot from, so this is completely open mic night on you. So If I don't get any questions, then we'll just sign off and I'll wish you a happy Monday. Hey, there's a couple folks jumping on. So if you have something that's you, that's been bugging you about your business, go ahead and put in the comments. I'll give you my short little disclaimer. I'm Brittany. I'm an attorney. I help creative entrepreneurs. That's kind of my shtick. I'm based here in Utah. But while I'm a licensed attorney, I'm not your attorney unless, unless I am your attorney. But in which case, you don't have to disclose that here. I won't disclose that. Anything we talk about tonight in this context is just informational purposes only, educational. This isn't part of attorney-client relationship, this little dialogue interaction right here. If you want to work with me and have some specific questions about your business, then I invite you to sign up for one of my free consult slots on BrittanyRatelle.com/services. I've got my little online calendar in there, and you can set up for a time to chat, and we can talk all about your business, and you can dish and vent and whatever you wanna do about your business, and then if you have any questions about that, I can answer those and then talk to you about what things I think might be a good fit for you at this stage of your business game, your development. So that's kind of how that all works. But thanks, I'm gonna wave, guys. I like doing the wave. It's fun to wave back. Hi, wave. So, but if any of you have any questions, go ahead and put 'em in the comment box. I do wanna tell you, hey, Court, good to see you. And if you have any questions about GDPR stuff, I have a podcast episode that I'm working on that I'll probably record hopefully tonight. If not tonight, then probably tomorrow, but it should be up by Wednesday at the latest. So if you have any questions about that, that information is coming. Okay, all right, Emily wants to know, she makes and sells cakes and cupcake toppers. If I sell a set of stuff with a whale anchor sailboat, could someone else selling a set with a whale anchor sailboat tell me I can't sell them? Um, no, unless you are getting the clip art from someone else. So if you are creating the clip art yourself, so if like you're going to Illustrator and you're drawing out the whale and the boat, like it's coming straight from your brain to the creation, um, you know, that's kind of the way you're doing illustration either in Illustrator or maybe you are sketching and doing the scanning method that way, um, then those are yours and you could do with those whatever you want, you know. And so no one can protect the idea of, you know, a boat or a whale or something. Those are just graphics, you know, those are just ideas. Now if you are buying those images from somewhere, so say you are buying them from a, you know, like a Picnic or like a vector library, they're on Canva or something, then you need to comply with whatever the licensing terms of those websites are, which they may have some language in there that says this is only for personal use, or this is only for web use and not print, or only up to a certain amount of downloads or page views, or, you know, et cetera, et cetera. They could have restrictions on the type of license that they're granting for you. So if that's the case, if you are sourcing your illustrations from somewhere else, then I would be careful, um, because someone could definitely have a valid claim to say, hey, you can't just throw those on a cupcake topper and then sell them commercially. Um, that's my artwork and I didn't license, I didn't okay that kind of use. Um, that's different than just someone using those for a private party or something. That's a just a whale, you know, whale of a tale theme, nautical theme. So I'm just spitballing here. So, so that's kind of how I would handle that. But if you want to protect your images, then you can copyright them and then you can make sure that no one else can use your exact thing, your exact sailboat. So someone can't like go on Pinterest, copy and paste, you know, pull it off and use, you know, the stuff in Illustrator that allows you to trace and then reuse something. So yeah, I can't use a similar product as her. Yeah, that's, that's not right. Etsy user, sorry. Like a whale and a boat, like those are not unique products. So, um, you know, there are hundreds of people online who offer graphics like that. So yeah, um, you know, maybe if it starts going into the name of the business, um, I actually have a client I'm helping with this issue right now where she had a name of a shop, um, an Etsy shop, and it actually was trademarked by someone else, um, a company in Canada, but they had owned a US trademark. I'm taking steps to protect that. And got a nasty cease and desist, and so we're having to do a really quick rebrand anyway. So if that's the case where it's more of the name of your business and that's what they have issue to, say that you're, you know, Nautical Parties and theirs is Nautical spelled like, you know, cute, but like the same way, then there could maybe be some— they could have some grounds for saying, hey, you gotta knock it off because it looks like you're selling goods under our name and it's really confusing to a consumer. That's what trademark is supposed to protect against. Is having confusion for the consumer. So, um, but most likely neither Etsy shop has probably taken their steps to trademark their name, so it's all about first use. And you know, they could have some threats back and forth, but, um, if neither has taken steps to protect it, then yeah, it's not like they can probably do anything about it really enforcement-wise. So anyway, which is why if you really like your name in your business and it's important to you and you have invested time and money into branding and building up a following on social media and your domain and everything else, we really should talk about trademarking your name and protecting it in whatever it is that you do, either goods or services, so that someone can't set up shop with a very similar name selling very similar stuff, because that can absolutely happen if you haven't taken steps to protect that. So, okay. What if it is your trade, not your trade name, but a motto? Mottoes can also be trademarked, like slogans, like "Just Do It," like Nike. Those are a little more, they're a little bit more difficult to protect. Usually companies have to invest quite a bit of money in advertising because you basically are making the claim that this motto is so connected to your brand that when someone sees it, they immediately think of your brand, like "Just Do It." So, you know, you can take steps to protect those, but it's, it's usually a little bit harder and a longer drawn-out process to get protection for things. And certainly if it's something that's common and that's already in use in commerce in lots of different places, then you're not going to be able to get protection for it. The Trademark Office is going to say, look, this is already in use in all kinds of places, so we don't see that you have first use, and we're not going to limit other people in the marketplace when it doesn't seem like you had really valid first use, exclusive use. So yeah, so yeah, that's kind of how mottos work. Um, and that's the same thing with logos too. So if you have a really unique logo, um, or distinct, then you can protect it. Um, but if it's something that looks pretty generic, um, then yeah, I don't— it might, it might not be worth the money in order to protect your logo. So, but if it's something distinct and you use it a lot, and especially if you're in fashion and it's one of the only things that you're putting on your items externally to try to differentiate them between yours and competitor, think about like Puma stripes, or again Nike swoosh, or like the Lacoste, you know, alligator. Those are really valuable logos, so that's why they— I'm sure they've taken steps to protect those. But, you know, if it's just some flourish or something that someone, you know, off Fiverr Designs did for you, may not be worth the money to trademark. So my trademark packages are— they start at $1,000, and that's for your business name and one class of goods. If you do more than one thing, say you do mugs and clothing and they're both really important to you, then like it'd be another $250 for the second class of goods. And then if you want to do a logo, it's another $250. So they kind of roll up from that. But if you just want your name protected, I do those for $1,000. That includes all of the searching to make sure we're not going to have any problems with anyone else, all the databases, including the trademark database. And then I file the application for you. I handle the fees. That's part of that. And then if there's any office action, meaning the trademark office says like, hey, hey, hey, clarification, and that's an official filing. It's an adversarial process that you have to answer in a certain amount of time. I handle all that because what happens is some people do that through LegalZoom. They get started and they're like, this is easy, like, I'm not bootstrapping, I can handle this. And you probably could until you get one of those office actions. And if you do and you get confused and you don't answer in the right amount of time, then your application is abandoned and then all your money's for nothing. So, um, Yeah, I do a lot of LegalZoom cleanup, as a lot of trademark attorneys do. So, you know, I'm not saying don't use them because unfortunately it's great business for me because I have to clean up, and then you're probably spending more money than you would have just in the first place. So something to think about. So, okay, any other questions from anybody? But hopefully that answers a little bit about the Etsy stuff. So, but yeah, that is a common issue. I know from people who they get started kind of as a hobby, a side hustle, and they have a cute name and everything's going along great. Boo to LegalZoom. Yeah, yeah, so it's, you know, it's LegalZoomy until it's not. Until it's, you know, Lingle poopy. Sorry, that was a total mom joke. I will give you the caveat though that if you want to register your own trademarks, I mean register your own copyrights, which that's like if you have a book, you know, when you open the front cover and you see like, oh, copyright Library of Congress. That's so you're probably familiar with that process. Or if you have an illustration that you have, if you have an ebook or a course that you have, you can copyright things on your own. If you have a large collection, it's a little trickier, and you want to make sure that you're doing it right so that you can have that protection, especially so that if you have any issues down the road, that you're going to be able to use that in order to get someone to cease and desist. And then you can use that for DMCA takedowns too, which I talked a little bit about. I had a post today about those. But no, those are not— I'm so glad you're doing it for me. Yeah, you're welcome. Yeah, because some people have really beautiful extensive collections of artwork and we want to make sure that those are protected and that if anyone tries to use their stuff and claim it as their own, then we could take steps to protect that. And DMCA takedowns, a lot of them require that you— they don't require, but they're taken a lot more seriously if you can attach the certificates of copyright. So, um, and the DMCA takedown, if you're not familiar with it, again, I have a post on this today on my Instagram, but basically is a procedure that's governed by the Digital Millennium Copyright Act, which is a U.S. act that wanted to make it easier for us to hold content platforms responsible for what they have on there. So it allows a really simple form procedure where you fill out this little online form and give them and tell them who took your stuff, why you think it's your stuff and original, attach any trademarks or copyrights that you might have, say why, when you first used it, and when you found this person using it, and what the problem is. And they review that information and they will take it down. So you could do this on Etsy, on Amazon, on YouTube, on Instagram, on Facebook, you know, any major web platform, on Reddit, eBay, that has your stuff and you have reason to believe, like, look, That is, that is my stuff. And they either just wholesale copied your pictures, you know, someone scraped your photos and is like, I'm selling this product, and you're like, no, that is my product. Thank you, Chinese ripoff company. Um, that's, that's one instance where it happens a lot. Another is someone who's selling counterfeit goods that the actual goods are— look like yours. So it's not the photographs that they're taking, but it's the actual goods, um, which are counterfeit and which are infringing upon your trademark, probably. Hopefully. So maybe your copyright too, but probably your trademark. So that's a really simple procedure and you can use that to take down, to get people to take down your stuff immediately. I mean, it's usually within a few hours, maybe a day or two. Even Alibaba has one. So granted, like, they'll take it down and then there will usually be another one that will spring up exactly. But you know, you got to fight that fight though sometimes. You know, you have to be strategic with your time and energy, you know, and I know that Getting ripped off is really the dark side of being— you can go after the Chinese companies, sort of. It depends on— you can at least go after where they're selling, which sometimes if you can cut them off at the marketplace, that's really where you want to get them hurt. In terms of going after the company in China, it usually involves having to file and protect your intellectual property in there in China, which just gets really expensive because you have to hire a Chinese firm to do it in Chinese using Chinese procedure. And then they have to translate the contract for you and then serve it to the company there. So, um, yeah, I'm sending you another email. So yeah, it's, uh, it's not fun. But, um, but again, if you can cut people off where they're selling online, I mean, that's really what's hurting you is someone who's getting on eBay or something else and they're selling a whole bunch of your stuff and ripping you off. So yeah, so if we can protect that and stop that, or, um, you know, another way you can stop people is you can actually file with U.S. Customs Office if you suspect that counterfeits are entering the United States, and they can actually halt them at the border and turn them around and send them back. So if that's a problem that you know that you're getting counterfeit goods or flooding in, and you can kind of pinpoint where they're coming in, then that's another way that you can stop. So action. So, you know, never feel like you can't do anything. I'm not saying that we can always stem back the tide of, um, less than honest overseas manufacturers. Unfortunately, that's kind of the— a little bit of the cost of the modern era that we have where people can— it's really easy to reverse engineer products, to copy stuff online. You know, you put your stuff out there, that's always a risk. But a couple of the things, the processes that I've talked about today, and also just the fact that, you know, no one can exactly copy you and the way that you sell things in the way that you do them. So There's always a balance, you know, and I remind folks here when they start getting down in the dumps about people ripping them off of, you're still you, and people who like your brand and like you will still continue to buy from you, and you will still be thinking ahead because people who rip off and do copycats can only be in your dust. They can only be living in your shadow creatively, and you're always moving ahead and looking forward. So, you know, don't get down on yourself or be discouraged, and certainly don't get to the point where you're like, well, I don't even want to put stuff out there anymore. It's just going to get copied because, you know, we need you and we need your things. And, you know, don't, don't ever give someone else that power of that. They'll stop you doing what you're doing. So anyway, that's my, that's my little rant, my soapbox about copycats. So, but anyone else have any other questions that they wanted to get on and talk about tonight? I can still hear my toddler not wanting to go to sleep, but oh well. That sounds like a personal problem to me. Oh, hey Maker Valley, good to see you. So yeah, for anyone who hasn't jumped on one of these, I try to come on every Monday night for like 20-25 minutes. It's just open mic night. Anybody who has a question about small business legal stuff, that's kind of why I make myself available for that. I also have a newsletter if you don't subscribe, BrittanyRatelle.com/newsletter, where I give legal tips and tricks that relate to kind of the stuff that I've talked about tonight, where if you have a creative small business and are interested in getting things more legit, some of the action steps you can take I talk about in there. I also have a podcast, so if you are the type of person who doesn't have any time to be reading anything, however useful and wonderful and entertaining it may be, which of course my stuff is, if the podcast is a better fit for you, then anyway, Law and Wit is the name of my podcast and it comes out every week. How do you make those strategic decisions? Yeah, it's tough. You know, it's tough to try to decide and balance out how much do you want to fight, how much do you want to stand your ground, how much do you just want to let stuff go. Some of it probably comes down to cost-benefit analysis. I always like to, when we're talking about, yeah, when I'm talking to clients about that, I kind of give them an idea of our options and how much it would cost. So, you know, some of that is estimate because it depends on the other side. You know, I could send a cease and desist letter and that's pretty cheap, you know, and I've got some good forms for that. I write that up, I send that off on attorney letterhead, which is always taken more seriously. Sorry, not sorry, that's just the way it is. And sometimes that's all it takes is people are like, oh, sorry, you know, I didn't know. Yeah, right. But like they stop, you know, or we get what we asked for, which is, you know, we want, you know, maybe we want them to stop, maybe we want them an apology, or maybe we want more. Maybe we want— we're like, hey, if you have all that stuff, then we're going to need a licensing fee. And this is our licensing fee for you to be printing our design. So— and we actually can send that as an attachment and say, "Sign this or we're gonna move forward with litigation." But some of it depends on their response to stuff and whether do they have the pockets or the gumption to hire someone and respond back. And if they do, then obviously that's gonna cost more, and then you get to decide whether you want to continue or you want to walk away. The other thing is to consider in terms of proactively what you can do to protect your stuff. And you do get some benefits if you register your copyrights to your stuff. A lot of benefits if you can do it within 90 days of publishing it. So there's always an advantage that as soon as you come out with a new thing, if you can copyright that and register your copyright immediately. And when I say register, I mean actually register with the Copyright Office. At any time you produce something that's an original creative work, you already have copyrighted it. Basically, you can already put the C with a little symbol around saying, you know, 2018 Brittany Ratelle LLC. That's one of my LLCs. I could put that on right now, even on my website, even though I have not, um, copyrighted my website. I have not registered it with the office. I could, and I probably should. I just— it's not— it's on my list of things to do. But that gives notice to people that I am asserting the rights, all of the rights to my site, that you cannot copy my text or my images without permission. You cannot use them and then claim that like, oh, I thought they were like in the public domain, as if that's a thing, you know, that anything you find on the internet is in the public domain. That's a myth I hear a lot from people. Um, but you do get some benefits if you register a copyright, and the benefits you get are that it's the presumption that you can get attorney's fees, which are really useful. And that goes back to that cost-benefit analysis. If you can recover your attorney's fees, then suddenly it doesn't seem like that scary and expensive to hire someone like me to go after and to defend your rights against someone and have an infringement lawsuit. You can also get statutory damages, which statutory damages mean that there is a set fee that the office is— that the court would set for saying, hey, look, you copied this and we're gonna say we're gonna assess these damages. We're not even— you don't even have to prove what your lost sales or profits are. So if you don't have statutory damages, then you have to prove actual damages. So you have to prove, well, if they hadn't started selling this t-shirt that copied exactly my t-shirt, then we probably would have made $1,000 in sales. But you, you have to prove that. So you either have to prove and show, well, previously a shirt like this over this amount of time has made this much. Um, and if it's a new product or a more unique product that you haven't done before, that's a little bit more difficult. So registering your copyright is always a great idea. Um, and it's relatively cheap. The fees are under $100, and so it's something you could do on your own, or if you want someone like me, an attorney, to help you with it, I only charge $100 for just one individual copyright. So if you want to do like a larger collection, then fees go up like that, but that's just to do one thing. So if you have something that's like a best-selling design and you want to protect it, then that's a great way to go. So, and if it's been 90 days since you've published it or first started using that out in public, you could still register it and get some of those benefits. You don't get it backdated to when it started. That's the, that's the advantage of doing it right after, because the office is trying to reward people for registering it. They're like, good job, you, you were on top of it. We're gonna, you know, they'll send out your application and your certificate, and it will actually backdate from the time when you put it in action, even though it might be months and months later. The date on it will be the first day that you turn in your application. Which is cool. So it's like a mini little time machine going on, like Flux Capacitor in the US Copyright Office. So I know that's— I'm really nerding out here on that, but okay, hopefully that makes sense. Okay, any other questions from anyone? I'll give like another minute if anyone else has questions. Um, any other questions before I head out? Because I haven't gotten my Otter Pop for the night. My kids did, but I didn't get an Otter Pop. So thanks for giving us all this good game. You're welcome, guys. So yeah, you're welcome. Look, I get that dealing with legal stuff is not the sexy side of your business. I understand. Like, you know, there are, you know, pretty designs and there's, you know, stationery and fun business cards and like website design. Like, all of that stuff is sexier and more fun than this. I get it. I'm self-aware. I can say it. But the thing is, is that if you want to be a better business owner, a more confident business owner, and if you want to be more informed, get a little bit of this in your head, get a little bit of this in your heart, and know what you at least need to know and the questions you need to ask. And then you don't have to feel afraid, you know, and you'll know at least where to get some answers. And you'll feel more confident in distributing your content and putting it out there, and you'll feel more confident in pushing back and negotiating, which is another huge benefit when you find out more about what your legal rights are. In terms of the things that you create. Um, because then you're able to say in a negotiation, you know, um, especially if like you're a blogger or you're a content creator who's working with someone else, like, um, that's great that you want exclusive rights or that you're going to want the rights to my pictures. Wonderful, glad you asked about that. This is my price for that. Because you don't automatically have to give that to someone, you know. Um, you know, if you are creating a course, uh, you want to make sure that you know that people don't have a right to do certain things with your course, that they can't distribute it in certain ways or use the content in a way that's not okay with you. Yeah, if you're creating a product, you want to make sure that you're protecting your product as much as you can so that people come to you and that they associate that look and feel and the brand and everything else that you've built up around your, your company with just you and that you can protect that kind of brand identity that you've invested in, I'm sure, a lot. So anyway, there's that. Okay, doesn't look like there's any more questions for tonight, so I'll probably sign off. But join me next Monday if you want, same time, same place. I'll try to get Facebook to cooperate, but you know, honestly, Mark Zuckerberg's not my favorite guy right now. I mean, no one's really feeling him right now, so oh well. So Instagram will be my jam, even though I know they're known by the same company. I get that, but there you go. And once again, if you're not signed up for my newsletter, get on it. It's funny, I don't even send it out every week. I only send it out if it has good stuff. So BrittanyRatelle.com/newsletter. I throw in a free legal checklist with that if you sign up, because I get that your email is precious. It is like, you know, you are opening up, you know, letting the guard gate down and opening me inviting to your castle. By giving you your email address. So I don't take it lightly. And then take a listen to my podcast. A lot of people really liked— I did my last one was on having a podcast. So if you have one or thinking about starting one, I give you all the legalities of that. My other previous episode was 10 contract terms that every creative needs to know. So if you're a creative, if you identify as that, then let's take a listen to that one. And then I've got a couple other guests lined up that I'm interviewing this month, and so I'll get some more other people on, so you're not just listening to me. But we've had great— we've had Allison Faulkner on there, Allison Show, Canary Jane, Miranda Anderson of Live Free Miranda, all kinds of fabulous people. So take a listen, uh, it's called Lon Whit everywhere that you listen to podcasts. So thanks so much, guys, for joining me, and, uh, have a great Monday night. Bye!