Ep. 14: What Authors Need to Know About IP with Shontavia Johnson

Welcome to the Pub Date Podcast, the show where two book broads discuss what should happen before, during, and after your book publication date. Brought to you by Broad Book Group with your host Vanessa Campos and Jen Dorsey.

Hello everyone, welcome to Pod Date. Happy Friday, Vanessa Campos.

Happy Friday, Jen Campos. It's even a better Friday because we have a guest today.

Oh, I'm so excited about our guest today. I have been Twitter stalking this woman for a long time now, and I convinced her to come on and talk to us today. And I am so thrilled because we are talking about, I think, something that all authors really are concerned about and they don't know how to talk about and they don't know how to research, and that is their intellectual property.

It's a big deal.

It is. And I, in my personal experience in speaking with authors, a lot of them know that they need it, but they don't know what kind of protections they need. So I think this is really going to be insightful and I'm excited.

I am too. So let's not waste another minute. Let's welcome her. Shontavia Johnson is an award-winning lawyer, entrepreneur, and academic who blooms at the intersection of inclusive entrepreneurship, law, and culture. She is passionate about helping women leverage their knowledge and their expertise to build their brands and businesses. As Clemson University's Associate VP for Entrepreneurship and Innovation, Shontavia acts as a connector between students, corporate partners, entrepreneurs, and other universities. Now, that's not all she does. She's also founded the Brand and Business Academy, a thriving community to create— created to support, educate, and inspire innovative but underestimated groups of entrepreneurs in the US, and that's women of color. Shawntavia, welcome to the show.

Thank you, Jen. Thank you, Vanessa. I am thrilled, thrilled, thrilled to be here with you all today.

Oh, it's so nice to see your smiling face. We are excited about this because you are just—

you're the IP guru.

So I cannot wait to pick your brain a little bit and talk about what our authors need to know to protect their brand. So I'm just going to kick it off with a very— oh, this is probably a way too broad question, but When you're a writer, especially when you're like a nonfiction writer who has your hand in all kinds of things other than writing your book, like courses and events and seminars, what are some of the things that you need to know to protect yourself and to protect your work?

So first of all, IP Guru is going on my business card.

You're welcome.

I love that. I've never been called that before, but from now on I will be the IP Guru. I love it. Good. Um, so I, I love your question. Thank you very much for the question. And I don't think it's too broad at all. I think it's important to think about because Vanessa, you mentioned earlier, people think they need intellectual property but they're not really sure where to start. And if you're a creator, particularly writers, there's so many different avenues. And so what I would say to broadly answer your question, Jen, is there really three different types of intellectual property. It's really two different types of intellectual property and one quasi-intellectual property that I'd like to answer your question with. So the first is copyrights, second is trademarks, and the third are publicity rights, which is something we don't really get to talk a whole lot about. But if I can just describe each of them, we can dig deep as much as you want. So with copyrights first, the way I would describe copyrights is really your relationship to the things you create. So as a writer, if it's blog posts, if it's courses, if it's books, if it's speaking materials, whatever the things are that you tangibly create on your laptop, on a notebook, or in a microphone, or whatever, that's the copyright really is the relationship to the things you create. There's like some legal terms and some legal mumbo jumbo. We could get into all that, but basically copyright relationship to your product, the, the thing that you create. Trademarks are really your relationship to your audience and your relationship to people who are buying things from you. And then your publicity rights are your relationship with yourself and how you can protect, like, the things that make you uniquely you. If it's your name, if it's pictures of you, if it's your voice, if it's the way— like, Vanna White, the way you turn letters on Wheel of Fortune, uh, your relationship to the things that make you uniquely you are things that can be legally protected in many states in the United States. So those are the 3 places where I would recommend writers start, particularly maybe before you get the deal, before you get the contract, when you're really just out here grinding. If you're on social media, if you're out on a speaking circuit or writing different newspapers or whatever, these are the things you should be thinking about from day zero.

Wow.

I, I have to admit, I have never heard of publicity rights ever. Maybe I've heard about it in like a different term, but that's— it's perfect for the type of authors that we work with because most of them are— their business is their brand. They are their brand, right? And it just creates that extra level of —of protection.

What would you use publicity rights for?

OK, so I love this question. So I used Vanna White as an example earlier. I love that. So yeah, so when you think of Vanna White, if you've ever watched Wheel of Fortune yourself, or if you've seen the show, or you see Vanna White walking across the screen and turning letters or touching letters, there's some things you think about when you think about Vanna White. You think about, long flowing dresses. You think about a woman walking over on a Wheel of Fortune set and turning letters or touching letters. And so those things that you think about when you think about Vanna White are things that are her right of publicity. Now, the, the caveat to rights of publicity, unlike copyrights and trademarks, not every state allows you to protect your publicity rights, but it includes your name, your image, and your likeness. So those things are things that can, if you're in the right state, can uniquely belong to you. So California, New York, Tennessee, lots of states where there is a huge entertainment industry, you'll see very strong publicity rights. Georgia is another example. You asked for examples, Jen. One other example I'll give you is Martin Luther King Jr., right? Like when you think of Martin Luther King Jr., you know what he looks like. You think about the I Have a Dream speech. You think about a Black dude with a mustache in a suit who's— speaking and a champion for civil rights and social justice. Right. And one of the things that is special about Martin Luther King Jr.'s publicity rights is when he was alive, he was thinking about these things and how to protect himself and protect his family and protect his legacy. And so you see the estate of Martin Luther King Jr. Being very, very strongly tied to protecting the name, image, and likeness of Martin Luther King Jr. It's why if you watch just about any movie about the civil rights movement, you probably don't hear "I Have a Dream." You probably don't see a lot of images about Martin— of Martin Luther King Jr. if that film studio or company or whatever hasn't created a legal relationship with the estate of Martin Luther King Jr. because they do not allow a lot of people to use his name, image, and likeness. And when they do, you pay handsomely for the ability to be able to do that. So his books, his writings, his speeches, all the things you mentioned, Jen, when we started talking, those are things you can protect with copyright, some of those things, but also through publicity rights. And if I can give one other example, I know I said two, but here's three. Oh no, the third we see with college athletes now, like there's been all this stuff in the news about name, image, likeness, NIL. It's the same thing. The name, the image, the way a person is running up and down a football field or a basketball court or whatever, that is another layer of protection, to use your words, Vanessa, to protect things that you might be able to protect in other regards with trademarks or with copyrights. But it's a separate way to protect your name, image, or likeness, things about yourself. Wow, that is so fascinating.

And it's funny that you mention it because there's— if you're on Twitter, as we are, you might have seen there's, there's a woman who owns a bookshop in London or near London, which is actually, I think, moving out of its physical space now. But Anyway, someone took a photograph of her that was a publicity photograph for her business. Um, they tweaked it a little bit, made a drawing of it, and it's on a book cover now. And they— like, she didn't get asked permission to do it, and it's like they're Twitter fighting about it. And it's really fascinating because it's exactly what you're talking about here. And so that's on a book cover, and it's also on all of their social media stuff, and it's, it's a mess. It's a big mess.

And social media makes it even more challenging, right? Because we're in this age where you think you can talk about anybody, you post pictures that you Google or get from wherever you get them. And the law and technology really are moving at different speeds because you have the law, which has been around for hundreds of years in some regards, that like many areas of law move really slowly. And you have Twitter, which is new and different every day, right? And so there is this tension too, particularly for writers, because Twitter, maybe more so than other social media platforms, often is about your words. Right? And even the things you tweet might be considered your intellectual property. And so we have to really have a good strategy for writers in particular of how you engage in these platforms and how you protect yourself from the very beginning.

Right. Speaking of the very beginning, um, we often— Vanessa and I have been in this business a long time, and we often get book proposals, and sometimes they will have really strong language about, you know, don't— you have to sign an NDA if you want to look at my book proposal, which is going maybe, you know, a little bit, a little bit too far. But I think writers are often confused about what— how much they can share with a potential publisher or a potential business partner and still, you know, how do they protect themselves in that instance? Like you said, before any contract gets signed, I mean, their work is their work, right? So do they have to go and do anything special to protect it before they are out there shopping it about?

If we're on a spectrum of how vigilant you want to be with your creative works versus how open and free you want to be with your creative works, I would say I often err on the side of protect as much as you can, have a strategy for as much as you can, and work out some of the nuances later. So there are a couple of things writers can do. The first is with anything that they create. So particularly something as detailed as a book proposal, it's not that difficult to get a registered copyright for written work. It's just not. In fact, in the United States, you can slap a C with a circle around it and your name and the year, and that is— actually, you don't even have to do that, but you can do that without registering anything. And so maybe if I can take a step back and just explain copyright law at a, just a 2-second high level. Copyright law protects original works of authorship fixed in a tangible medium of expression. So if it's original, you haven't copied it. If it's a work of authorship, there's a whole list in the United States of 9, not, it's a non-exclusive list, but 9 things that are protected by copyright. And if it's tangible, meaning fixed in a way where we can see it, we can read it, we can perceive it in some way, you have a copyright even if you've never registered anything. And so the first step is recognizing the moment you've created something, if it meets those 3 requirements, you have a copyright even if you haven't registered something. And there are benefits to registering, and it doesn't take that long for most people to register their original work of authorship that is fixed in a tangible medium of expression. You can do it on your own at copyright.gov, costs less than $100. You can hire a lawyer. On average in the United States, the most recent data I saw is that most lawyers charge you, you know, a few hundred dollars, somewhere between maybe $400 and $600 to register a work for you if you do it on your own. And like I said, you can do it for a lot less than $100 in the US for the most part if you do it on your own, and then you get a registered copyright. So I don't know too many publishers who are going to get a book proposal and say, oh yeah, I'm going to copy this, I'm going to take it, and I'm going to give it to some ghostwriter or whoever, and we'll just steal this author's work. I don't know any that do that. But for writers who want to err on the side of caution, they can register that book proposal, full written manuscript, whatever, before taking any additional steps to share with other people. So that is something you can do. You can put a copyright notice on it before you send it out. You can register it with the United States Copyright Office before you send it out. Um, in terms of signing NDAs, I mean, I do think that probably goes a bit far for a book proposal. I can understand though for people who are in the entertainment industry, the further you get away from a very well-thought-out treatment of something, the further you get away from that, the more I understand having written contracts. But for book proposals, I do think that's something that's probably unnecessary and probably most people wouldn't sign anyway. You would know better than me. The likelihood of getting, particularly a publisher you don't know, to just sign an NDA out of the blue is pretty low. But there are other steps you can take to protect yourself.

Absolutely. Well, and I think sometimes maybe that's a red flag that maybe this author is going to be a little interesting to work with. So I think we're all for copyright protection, but yeah, sometimes it's a bridge too far, you know. Talk to us a little bit about trademark because I know that's something that you work with quite a bit. I think a lot of authors have questions about should I trademark something, can I trademark things. Can you trademark a book, a book title, which I don't believe you can. Walk us through some of those interesting tidbits for authors about trademark. Yeah.

So I love this question because I think the thing that's unique today that may not have been true for writers 10, 15, 20 years ago, at least my perception, not being in this space every day, my perception is that more people are looking to build the brand a bit before they write the book, right? So you see, like, Tabitha Brown, who's in the news a lot right now, who went viral for a video she made some years ago eating a sandwich from Whole Foods. She became this social media influencer, first on Facebook, then on TikTok. She's got millions and millions and millions of followers. She released a book recently. She's on the New York Times bestsellers list. And so she didn't write the book first and then try to go out and do all these things. She built the brand first, right? And she was selling things first. I think she's got a deal with Ellen DeGeneres's company and all kinds of other folks. And I take that long path to get to the point about trademarks. When I said earlier, trademarks is about the relationship you have with customers, other people who are buying your products and services, what trademarks protect really is that thing that you're using, whether it's words, whether it's phrases, uh, whether it's a logo or some kind of design element, some kind of designation to distinguish yourself in the marketplace from other people when you're selling products and services. So if a trademark is what you're using to sell something to other people, the point at which it's important for a writer or an author Could be any time if you're building the brand before you sell the book, right? And so for an author, the point at which they should be thinking about trademarks is when they're using certain catchphrases or certain colors or certain words to distinguish themselves in the marketplace. So if I stick with the Tabitha Brown example, trying to think of some of the things she says often, I know she says like, like so, like that, or because that's my business or whatever. I haven't looked at her trademark portfolio. But I bet she owns some trademarks for those phrases. And those phrases are things, maybe not to sell the book, because I think you're right, Jen. I think it's nearly impossible to get a trademark for a book title alone. But if the name of her book is Because That's My Business, and she's got a line of t-shirts, she's got an online course, she's got a show on, you know, Ellentube or whatever that's called because that's my business, then it makes sense to be thinking about your trademark strategy. And so here specifically, when authors need to be thinking about trademarks, are you using words and phrases that distinguish yourself from everybody else in the market? And not in the market of books, but specifically in the field that you're in. So if I'm an engineer, or if I'm a vegan, or if I'm an entrepreneur, or whatever, are you distinguishing yourself from other experts in your field of interest. Do you use certain colors, right? So Tiffany Blue is a registered trademark for jewelry, or, um, a certain shade of brown is a registered trademark for UPS's delivery services. Or, um, I'm looking around at like things I have on my desk right now, uh, but colors, if you're using specific colors, if you're using logos, that's the point at which you should be thinking about trademarks. Now, a strategy I've noticed people starting to implement are that they are creating book titles that either are their trademark or very closely related to it, which I think can be smart if you've built a huge platform. Rachel Rodgers is, is a person I think of in this regard who's an entrepreneur. She's got a, a very popular book called We Should All Be Millionaires. And before the book came out, which is called We Should All Be Millionaires, Millionaires. She has a club that's several hundred dollars a month, several thousand dollars a year, that's called We Should All Be Millionaires. And so that is a strategy you can implement as an author, as a writer, to layer the various intellectual property protections you might have. I hope I answered your question. I feel like that was a long-winded answer. No, no, you did.

That was awesome. And I love Tabitha Brown, by the way. I mean, if she can trademark that soft way that she talks— she's like Ah, so relaxing. I love her.

She's great. So, so, Jen, I don't know if you've ever used the Calm app, but I have the Calm app. I listen to bedtime stories every now and again. Her bedtime story is one of the most amazing bedtime stories because she has that soothing, soft way that she speaks.

I was so taken with, um, the guy who plays the Duke on Bridgerton has one, and I haven't gotten away from that one because, you know, he's, he's nice to listen to too, but that's another podcast.

Oh, I need to— that is, but I'm going to write that down so I can check that out later. You do.

All right, we'll compare notes.

We will. But can I say one more thing about that since you brought up voices? So Vanessa earlier mentioned rights of publicity and being unfamiliar with it. Voices, distinctive voices, can be protected by your rights of publicity. And I know this is something we may get into in a little bit, but as a writer, you're writing a book. There are audiobooks. There are pre-publication excerpts that might be written or might be in audio form or whatever. So if you have a very distinctive voice, that's something to think about as you are negotiating whether you're going to read the audiobook or somebody else is. Because what can happen, right, when you have a deal with some third-party company, if they don't want to pay you, they may try to go out and get a lookalike or a soundalike. Right, right. And there are several lawsuits about soundalikes when people have very unique voices.

That is interesting. I know Vanessa's run into that a few times because she, uh, she's done some audiobook deals where we've had authors who are not pleased that they're not the reader. Yes.

So I, from a publishing perspective, I completely understand not everyone is, is going to be great on audio. But, um, I have a, I have a burning question that I've been forever baffled by that I'd love to ask. So ebooks, Shontavia, you were talking about, you know, the speed of technology and law. They're just— there's a lot of friction there. So with books, it's, it's ever-changing, and ebooks has created a way for a lot of platforms to basically share ebooks without having to buy it. So I'm wondering You know, the sharing of ebooks is very pervasive. If you have a publisher, they can help you out with the legal notices to send out to those platforms. But how can entrepreneurs and indie authors, you know, prevent this from happening if they are producing content that's digital?

Hell, I get kind of excited about these things. All right, so ebooks— simple things you can do upfront to protect yourself later. So the first thing is register your ebook with the Copyright Office at copyright.gov. Now, I'm not a huge fan of people doing their own legal work because I think there are hidden complications in everything. It's like me saying, oh, I'm going to be a book publisher because I read a bunch of books. Like, as you both know, there's a lot that goes into these things. But if you are a smart, savvy person, and you get the right book, or you can find a good lawyer who is not going to try to just take all of your money, register the copyright first. There are some resources out there, and I'm happy to share those if you all like about if you want to register your own copyrights, some books that can help you through each step in that process. It looks really simple, but trust me, y'all, I've been doing this, what, 15 years? It is not. But the first thing is register your ebook with the Copyright Office. Do it, do it, do it. The second thing I would say is if you're selling your ebook through a third party, so like a lot of people sell their ebooks on Amazon, there are some different programs within Amazon where you can register your books and, and like they have their own kind of internal ways to see if people are, um, or making sure that your book is appropriately protected is what I would say. But the third thing, if you've registered— actually, you don't have to register your copyright, it just helps to do this. But if you find that people are like sharing your ebook without your permission, you can use something called the DMCA takedown notice. That's the Digital Millennium Copyright Act takedown notice. And basically the Digital Millennium Copyright Act is a law that was passed some years ago that was supposed to move copyright law into the the 20th/21st century, 21st century, to take into account the rapid speed at which technology moves. And within the law, there's a lot of stuff in there, but within the law is this provision that says ISP, the internet service provider, the host of the website who has your infringing material on it, they have a responsibility to investigate and take things down if you tell them someone's copying your stuff or downloading your book or offering, sharing your book without your permission. So somebody creates a PDF of your ebook or just downloads your ebook and uploads it to Facebook or Twitter or whatever. And all these services basically have a DMCA link on their site somewhere. You can just Google it because sometimes they're hard to find. You can say, hey Facebook, somebody has downloaded my copyright-protected ebook and they're just like offering it to people on Facebook, Facebook has to investigate and perhaps take it down. And if they don't, then you have a lawsuit against them. So like me, as if I'm writing ebooks, I've sold, I don't know, 100 ebooks hypothetically, and there's some guy in Arizona who's downloaded my ebook, I mean, I could sue him. Maybe copyright law says I can, but He's got $5 and I've got $5. It doesn't really, you know, make a lot of sense for me to file a very expensive lawsuit or whatever against some guy in Arizona who I may not even be able to find. But Facebook is a billion-dollar corporation, and if they don't take the appropriate steps in the DMCA, I have a potential lawsuit against Facebook. So then, you know, it's more intriguing to me to file a lawsuit against a billion-dollar company than it is, you know, some random person in their grandmother's basement or whatever downloading my ebook. Having a copyright strategy for your ebooks, using the DMCA takedown notice, I think those are two things that are low-hanging fruit that don't cost a ton of money. Because I think the other thing beyond not knowing is some people kind of know, but they think it's too expensive, or they think there's no way I can hire a lawyer to help me through blah blah blah blah blah. But it doesn't have to be super expensive to take some basic steps to protect yourself. I love that.

Thank you so much for sharing those amazing gems and takeaways with us today. Um, I feel smarter having just— yeah, thank you so much. And, um, go right out and trademark that IP Guru that I gave you. You're welcome.

That's right, I may just do that. All right, sounds good.

Well, thank you so much for joining us. I hope you'll come back because because there's so much that we could unpack here. We've got multiple shows on this topic that I think are definitely sprouting in our brains right now. So yes, thanks for joining us today, Vanessa. Have a great weekend.

Same to you, and thank you again, Shontavia. Have a good weekend, everyone.

Thank you both. This was fun. I am shocked it's finished. It feels like it's really fast.

Well, that's it for us from Pub Date today. Thank you for Paul Roberts, our producer, and Emily Carpenter Puls Camp, our executive producer of Little Red Communications. We will See you next time.

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