Lawyering Up: Blogger Legal Tips with Jamie Lieberman and Julie Blanner | #MVCON18

Lawyering Up: Blogger Legal Tips with Jamie Lieberman and Julie Blanner | #MVCON18


[MUSIC PLAYING] I’m really excited
about this one because it’s something that
I think we don’t always think about, which is the
legal aspect of the business. And it can be quite intimidating
because of all the legalities and the red tape. And we don’t know when we need a
lawyer or why we need a lawyer. And today we’ve
got the perspective from both a great lawyer
and a great blogger who had experience on both
sides of that equation. And so what we’re
going to do first is hear from our attorney,
who is Jamie Lieberman, and then we’re going to hear
from our blogging perspective, which is Julie Blanner. So I’m gonna introduce
both of them now. First, Jamie is a
partner and founder of Hashtag Legal, which
is a law firm specializing in working with influencer
marketing professionals and businesses with
a digital presence. Jamie has experience advising
on trademarks, copyrights, drafting and reviewing
contracts, site terms, FTC disclosures– all
the things that everyone needs when they are conducting
business in the digital space. She’s been a practicing
lawyer for over 10 years. And she’s worked for
an international law firm in New York City,
and is the former director of operations and chief counsel
for an influencer network. And then we have Julie
who is sitting over there. Julie is a lifestyle blogger
and entertaining expert who began sharing her effortless
style through her blog in 2009. She honed her signature style
with a captivating collection of recipes, home design,
travel tips, DIY, and entertaining advice. She’s got an ever-growing
personal brand and countless partnerships
with advertisers. She’s worked with Seventh
Generation, Fair Life, Martha Stewart, Keurig,
La Crema, Lowes and more. She’s been featured in print
with People magazine, Better Homes and Gardens,
Good Housekeeping, Women’s Day and many more. So we’re going to
start with Jamie. Then we’ll move to Julie. Thank you, guys. [APPLAUDS] Good morning, everyone. Guys. [LAUGHS] I was on the bus with you. I know how loud
everyone here can be. Well, good morning. I’m very excited to
be here with you guys. And I am very excited
to talk about legal because legal is fun. Said, no one, ever. But we’re going to make it
fun because legal does not have to be scary. And so we’re going to
talk about trademarks. We’re going to talk
about copyrights. And we’re going to talk about
LLC formation and entity formation. And then my lovely
co-presenter, Julie, is going to talk
all about contracts. And she’s going to talk about
it from her perspective, as someone who enters into
contracts all the time. If there are legal
questions about contracts, I can absolutely
answer them, but I’m going to leave most of
that to Julie because I know you’re in amazing hands. I am going to say, I have a
lot of information to cover. So if you guys could hold
questions to the end, I would greatly appreciate it. So thank you. So, entity formation. This is a question
I get all the time. When do I form an entity? What is an entity? An entity is some kind
of corporate form. What is a corporate form? I’m going to try to use as
little legalese as possible, but when I use it I’m
going to explain it because I hate legalese. I don’t practice that way, but
sometimes I have to use it. So an entity is any
kind of form that you’re doing business under. It can be an LLC. It can be a C-Corp. It can
be a sole proprietorship, a partnership, an
S-Corp. And I’m going to explain what
each one of those is. But when you form one? When you start making a dollar. And all of you are
with Mediavine, so I know you are
making far more than $1. When you start making
money, you have a business. And when you have a
business, you have assets. And when you have assets,
you need to protect them. And I’m not saying
this to scare anybody. If you’re sitting here
thinking, oh my gosh, I make so much money and I
do not have an entity formed. Do not panic. You can can form it any time. It is fine. And there’s a lot
of things that go into the consideration of
what you’re going to form, how you’re going to form it, and
when you’re going to form it. The first thing I’ll
say is, you want to talk to your
tax professional. I don’t go anywhere near
taxes, so I cannot give any tax advice. But I can give you some
good legal information. And you should balance the two. But if you are starting to
make money on your business, if you have assets
in your business, which includes your
intellectual property– your name, your website,
your mailing list. Those all have value and
can be sold at some point. Or somebody could, if
there’s an issue, come and– those are the assets
in your business if you were to get sued. You want to protect
them and you want to make sure that
they’re kept separate from your personal assets. So what are the
different entities that you can possibly form? An LLC. That’s the most common one. It’s a limited liability company
that is a state formed entity. The federal government
doesn’t care about your LLC. Essentially, if you
form an LLC it’s the easiest entity to form. It usually consists of–
and it goes state by state, but you’re usually
filing a document with your Secretary of State,
Department of Taxation. It depends on the state. And then you enter into an
operating agreement, which is just a document
that governs your LLC, so you know what happens in
the case you want to sell it or if you want to add a partner
or if you have a partner. Something like that. And then you have
to keep up what are called corporate
formalities, legalese. What does that mean? So if you form an LLC,
you need to make sure that all your business
stuff is separate from all your personal stuff. So that means you’re signing
contracts in your LLC name. You have a business
bank account. You have a business credit card. You are keeping all of
your income separate. You do not go to Nordstrom
and buy a pair of shoes with your business credit card,
no matter how cute they are. It’s tempting. I know, but you have
to keep it separate. And so you have to
keep your book separate because if you don’t,
then if you were to get sued a court can
do something called piercing the corporate veil. Lawyers love words that
don’t mean anything. And all that means is the
court sets aside your LLC. And what your LLC
does is it keeps your business assets separate
from your personal assets. So if you were to
get sued– say you got one of those
copyright letters that everyone is afraid of
and we’ll talk about a little later. The court can– a
potential person to get a judgment against
you can only leverage on your business assets. Your house is save. Your car is safe. Your bank accounts are safe. So long as your business assets
are separate in that LLC. Some people love
the term, S-Corp, although with our new
tax laws a lot of people are questioning whether
or not those make sense. But an S-Corp is not really
an entity that you form. It is essentially a tax status. So if you have an LLC, you
can take S-Corp status, and your accountant
can help you with that. And so that’s an
accounting decision. It’s not really a decision that
a lawyer typically recommends, unless they’re a tax attorney. So an S-Corp is another
entity that people frequently ask me about. So LLCs and S-Corps are the
two most common entities that I see formed for people in
the influencer marketing space. Particularly, influencers. A C-Corp is a corp. It’s
an Inc. It’s what everybody typically sees with
large companies. They’re very complicated. They require shares and
boards of directors. And it doesn’t typically make
sense for your average blogger. And since I don’t
have a ton of time, I’m not going to spend
a lot of time on it, but if anybody has
questions, I can answer them. If you’re doing business
as you, if you’re just sort of hanging out you’re
you, you’re a sole proprietor. And so a lot of you who may not
have formed an entity that’s what you are there
is no legal status to being a sole proprietor. It’s just your income
and it’s a tax thing. So you don’t have
to do anything. If you filed a DBA,
which some of you– it’s called a Doing Business As. Say your website is
different than your name and you want the world to know
that you own your website, but you don’t want
to form anything. That’s typically through
a sole proprietorship. And this is the same
with a partnership. If you have a buddy and you guys
are doing something together, creating course together,
but you don’t enter into any official paperwork. You just sort of do it together. You’re a partnership. There’s no legal protections
with a partnership at all. I would recommend
highly that if you are entering into
a partnership, you have a really good
partnership agreement. Don’t just enter
into a fun friend– if you’re friends with somebody
and you want to put something together, I unfortunately see
those go wrong all the time. So know what the terms
of your partnership is. Even if you don’t
want to form an LLC, at least have a
partnership agreement. So what do I need to do? Some people do it themselves. I have a lot of clients that
come to me and talk to me and say, ultimately, I
want to do my LLC myself. And that’s fine. You can. You can go on your Secretary
of State’s web site. You can file it. Different states have
different things. New York state is
particularly complicated, so my clients there typically
don’t want to do it themselves. California can be a
little bit tricky as well. The operating
agreement is usually the part where I have
a client come to me if they want to
do it themselves, and I may do that for them. That’s an important
document to have. You’re not required by
law in almost all states to have an operating agreement,
but it’s just really good. And one of the reasons
and benefits of doing that is because it just gives
legitimacy to your entity. And so if you do run into
an issue and somebody sues you or you have
some kind of problem and they’re looking into
the formality of your LLC, they’re going to look at that. They’ll want to know that your
bank accounts are separate, that you have an
operating agreement and then you’re really
doing business as this LLC. Trademarks– so this is the
one I get all the questions on. I think every Facebook
group, in the Facebook group these were all the questions. So let’s talk about trademarks. What’s a trademark? A lot of people don’t
really have a good grasp of what a trademark even is. And so the thing
I’d like everybody to understand about
a trademark is you have to look
at the trademark through the lens of a consumer. The US Patent and Trademark
Office, or the USPTO, they don’t care about
the trademark owner. They care about consumers. So everything about trademarks
is about consumer confusion. You as a consumer need
to know that when you’re going to Google.com
you are getting the service from Google.com
that you expect to get. And so nobody else can use
that name because otherwise it would be confusing. You would think you’re
getting the incredible quality of service from
Google, but if someone was using their name or a name
that was confusing to that name and the service wasn’t as
good, that would be confusing. You wouldn’t know
what was going on. So it’s a name. It’s a word. It’s a symbol. It can be a smell. That’s my favorite. A color. You know the Pink
Panther insulation? That pink is trademarked. The shape of the Coca-Cola
bottle, which is trademarked. So anything can be trademarked. It doesn’t just
have to be a name. Logos and names are
the most common things I see in my practice. The other really important
thing to remember is trademarks are
acquired by use. You don’t just get to take all
the trademarks and hoard them. You have to use them. And so in order to be able
to have trademark protection, you get it through use. And so if you’re
first to use, awesome. You have some
trademark protections, even if you don’t register it. You get more with registration. So what can you trademark? This is something– there are
two things that the Trademark Office looks at when they
think about the viability of a trademark. This is something called the
spectrum of distinctiveness, which to me just seems– I don’t know. It doesn’t mean anything. But what it means is this– the Trademark Office loves
what they call fanciful marks. Words that mean nothing and
suddenly acquire a meaning because someone’s used it. Xerox, Kleenex, Google, Exxon– those words were made up words
that suddenly became something because they became a brand. That is the strongest
trademark you can have, is a made up word. On this spectrum–
and you really can think of it almost
like a number line. On the next level is
something called an arbitrary. Apple computers. Apple’s a word. We all know what apples
are, but you would never think it’s a computer. So it is completely arbitrary. It in no way describes
what it is the product is. And so that’s very
trademarkable. You then get into
the gray parts. Suggestive is the
last sort of line on my spectrum of
distinctiveness that’s trademarkable. Suggestive trademarks
are trademarks that sort of suggest suggest
a quality, but don’t describe. For example, Sprint. You think, fast. So you think their data is fast. But they’re not saying,
we have fast data. They’re just saying, Sprint. And so it suggests something,
but doesn’t describe it. And then you get into
descriptiveness and generic. Descriptiveness is
the hardest thing that people struggle with
because we want to name what our product and service is. So when you start using
a name that describes what it is that you’re doing– for example, Park and Fly. That describes what it is. You park and then you fly. That’s descriptive. It’s not trademarkable
because the Trademark Office is going to say it doesn’t
tell you who owns that product. Consumers aren’t going to have
an understanding because it’s just not distinctive. And so I see a lot of trademark
rejections on descriptiveness. And so when you’re
going to trademark, that’s something that
you have to think about, and most people don’t
know it, because the thing that people think most about
is, likelihood of confusion. Is there another
trademark out there that is just like my trademark? That one’s really important. Do your research before
you start a business. But you’ll need
to know if there’s another mark out there
that’s registered or that’s the same or similar. You can’t add an S and
make it distinctive or make it not confusing. It has to be far enough. So where do I start? You have to research,
and I don’t just mean a Google search. You have to go into–
and I’ll drop these links in the Facebook group. I didn’t want to put up
a whole bunch of links. The Trademark Office
has a whole database. It’s called Tess, T-E-S-S.
And if you Google it, you’ll find it. You can do a basic
mark search just to see if your name’s marked. And so that’s important. You also want to research,
Google, Facebook groups. When I do a trademark
research it is extensive. It takes a long time. I look at company names on
state levels, on federal. I look all over. It’s not just a Google search. But for your purposes,
if you’re just looking to make sure
that your name is OK and you’re not infringing
on someone’s trademark and you don’t want to get
the dreaded cease and desist, Google, Facebook, and Tess
are a great place to start. Before you launch,
it’s never a bad thing, particularly if you’re investing
a lot of money into a product, to talk to an attorney and have
them do that research for you. When you start using and
if you’ve been using, you do get trademark protection
under the common law. The common law means,
law we all made up. And so it’s either common
law or statute law. And so under the common law
you get some protections. Other people can’t just
start using your name if you were using it first. Even if they try to register
it, you can stop them. And so there’s
things that you can do as long as you’re
using the name. And the other
important piece is, you have to use that
name in commerce. That means you make
money off the name. You can’t just use
it for a hobby. And it has to be interstate
commerce, which means it has to be state to state. So if I want to trademark a name
and I have an ad on my website, that’s enough. You guys are all making
money in interstate commerce because you have ads
on your websites. That’s fine. You could sell a t-shirt to
your friend in Pennsylvania and you’ve made money
in interstate commerce if you live in New Jersey
or New York, or anywhere. So that’s also important. And then, federal
registration, which is another way for you
to get protections. And the federal registration,
it’s a long process that we’ll talk about, but it
gives you the most protection for your trademark. So the reason to register. If you want to use
your brand nationwide. And most people online use
their brand nationwide. There are definitely
some hyper local brands. It doesn’t matter as much. But if you’re using
your brand nationwide, that’s definitely
something to think about. To avoid confusion. How many blog names out there
do you know that are so similar and you get crossed emails
and sometimes somebody’s trying to email you, but they’re
e-mailing the person whose blog name is very similar to yours? Timing is another thing. You get priority from first use,
but if someone starts using it, you don’t stop them and
then they register it, they may be able to continue
with that registration. And then you’re limited in what
you can do with your brand name if their registration
is successful. So that’s important. And the last thing
is credibility. It’s the same thing with LLCs. When a company comes in and
they want to work with you, they want to see certain things. They want to know that
you have an entity set up. They want to know you’re
taking your business seriously. And a trademark is another
thing that does that. It gives you credibility
with either someone who is doing business with you,
entering into agreements with you, or somebody who may
want to buy your blog one day. Because if you don’t have
your intellectual property, your blog is worth way less
without that registered trademark. A great thing about
the registration and why you should
register is because it is a deterrent to others. It’s a notice. But it also, more legalese, is
a legal presumption of validity. What does that mean? That means that a court assumes
you have a valid trademark. The process is long. It is nine months to a
year to get a trademark. And you have to go
through a lot of hoops. So once you get that
certificate, which is so cool with a gold
seal and it’s so proud, you have that legal presumption. So the court says, uh-uh. You don’t have to prove
anything if someone sues you for trademark infringement. That other person
has to prove you don’t have a valid
trademark, and that is hard. So it’s a huge deterrent
to other people even trying to use your name. You cannot sue in federal court
for trademark infringement unless you have a
registered trademark. A lot of people don’t know that. And so you’re really
limited in what you can do. You could send a lot of
angry cease and desist. You can sue for other
things, but you can’t sue for trademark infringement. And the beauty of trademark
of the registration is the statute gives you all
these enhanced penalties. Meaning, you get lawyers fees. You get triple damages
in certain instances. If you sue someone for trademark
infringement and you win, they pay you quite a bit. So what’s the process? The process is long. It’s just a warning
from the beginning. You got to be in it
for the long haul. And I do recommend
that at minimum you consult with an
attorney, because I fix a lot of trademark
registrations gone wrong. And here’s why the
research is everything. I spend a really long
time on the research to make sure that your name
is as trademarkable as sure as I can be. And I look for the
distinctiveness challenges and I look for the
likelihood of confusion. I do all that research. I then come back and
I give you an opinion. A lot of times names change. I just had a whole
thing with a client who wanted to start a
whole brand new business. And I went back
to her and I said, you’re not going to get
this trademark, here’s why. We tweaked the
name a little bit. We were set and ready to go. Then the filing. In the filing, the filing
is a little bit strange. It’s not that bad. You have to have
certain information, but the crazy thing about
the filing is the class. So a lot of people
don’t know this, but when you
register a trademark, you register it in a class. So you don’t get rights to
that name across every class of every good of every service. And an example of that is
Dove soap and Dove chocolate. Two different companies. Two different trademarks. And so they’re trademarked
in a certain class. So we have a class for
blogs, which is awesome. And we have a class
for courses, and we have a class for coaching. And so you need to
pick your class, and it is really hard
to write those classes. And a lot of times
you get rejected on the class description. And so the class is important. And then, there’s
two types of filing. You can do what’s called an
intent to use application. Meaning, I haven’t started
using it yet in commerce, but I’m going to in the
next six to nine months. That’s how you
hold the name when you’re launching a product. This is how when people
come to me and say, I really want to
launch this product and I want to go to
investors or I want to talk to potential clients. What do I do? I’m like, you’re going
to trademark your name. That’s the first thing
you’re going to do. And there’s a lot
of other things you can do to protect
yourself, but that’s a big one. So an intent to use. Or, an actual use in commerce. And so I’m describing that. If you file an actual
use in commerce, you have to use what’s
called specimens, which are pictures of how
you’re using it in commerce. Screenshots of your blog. A screenshot of an ad. If you sell a course, a
screenshot of the shopping cart. So you have to have
all these screenshots and then you have
to just grab them. So then it is sent off and then
we wait for months and months. And in about three months
the Trademark Office will assign you a
trademark examiner. And that trademark examiner will
literally do all of the work that I just did as an attorney,
and will write an assessment about whether or not you
can trademark your name. And then you get
the office actions, which is typically when I
get the panicked phone calls, because they look scary. And they are long and there’s
hundreds of attachments. And people are
like, what did I do? And that is the Trademark
Office coming back and saying, there’s something
deficient about this. Sometimes they’re
super easy fixes. It’s like, click of a button. Or as an attorney,
I get on a call and I call the Trademark
Office and I say, you’re drunk. Let’s fix this. And they fix it, but
only I can do that. And other times they’re
much more complicated. If you got a likelihood of
confusion office action, that’s harder. That becomes a full
backup and forth. And then once you’re
pass through that part you then go to what’s
called publication. And then you wait more. And then eventually, in
about a month or two, the Trademark
Office actually puts your trademark in a little
gazette and the public for 30 days can oppose your trademark. Anybody can oppose. It’s delightful. And so you get some very
interesting oppositions. Hopefully, we get none. If we’ve done our research
we’re not going to get any. There’s the occasional
crazy, but we deal with that. Those are full
blown litigations. They are full blown. We are back and forth
with court documents. There’s all kinds of– we negotiate those away. And that’s the other beauty of– you don’t have to worry
about any of that. I don’t get many of those. Knock wood. I’m probably going to get
one tomorrow because I just said that. But nine times out of 10,
if we’ve done our research we’re not going to
get one of those. And then once we
pass your publication you get your certificate
probably two months later. But you’re good. Your priority date is
from the day you filed. So it doesn’t matter. We can wait all day. And then you get to switch
from a TM to a little R. And it’s very exciting. So that’s the process. Copyright. I only have a few more minutes. I’m going to run through
this quickly because I get a lot of these questions. What is a copyright? A copyright is
anything original. That just means you did it. There is no standard
for originality. You do not have to
paint the next Mona Lisa to get a copyright. It can be anything you’ve done
as long as you didn’t copy it. In fact, I could take
a picture of you guys. Julie can come stand next to me
and take a picture of you guys and we would both
have a copyright, even though it’s the
same image because I took it and she took it. Fixed in a tangible medium. That just means you put it
somewhere on paper or online. Doesn’t mean anything other
than, it’s not in your brain. You’ve got to get it out. And you get a copyright from
the moment you create it. Copyright is way easier to
deal with than trademarks. You can register
copyrights yourself. I typically tell
clients, unless they don’t want to spend the
time, which I understand, go do it yourself. It’s a great way to save some
money is to just register your copyrights yourself. One thing to remember
is you can only copyright the work, not ideas. So a lot of times when people
have this brilliant idea for a course and they
come to me and they say, I want to have a partner. How do I protect it? You can’t protect your
ideas through copyright. There’s other ways,
but you only copyright what you’ve actually
written down, not all the brilliant
ideas in your head. A really great way
that I’m seeing a lot of people making
money with their copyright is through licensing. And this is a huge
way that I’m seeing a lot of influencers
really making some good passive income. Something that you’ve
created and you want to let other people use it. How do you do that? With copyright, you get
this bundle of rights. And if you think of
them like sticks– this is really how they
taught it in law school and it always makes me laugh. You get the right to reproduce,
distribute, display, perform, create a derivative work. What that means is,
you’re creating something new out of something you made. The Harry Potter books became
the Harry Potter movies. Those are derivative works. You can transfer it. You can do all of those things. You can transfer
all your rights. You can transfer
none of your rights. Think about your contracts. And Julia will talk a
little more about this. And I am running out of time,
so I will certainly touch on this more in questions. But make sure when
you are transferring any of those rights, whether
it’s all of them, some of them, or none of them, you
have it in writing. And this could be something
as simple as a blog post to a photograph to something as
complicated as to the framework of an app. All of those things
need to be transferred in writing with your license,
because then you know what the terms of your license are. You know what the person can do. How long they can do it for? I’m going to have to skip
this, but I will happily answer questions. And that too, which I know loads
of people have questions about. So keep them and
I’ll answer them. So thank you guys. This is my information. I have a podcast where we
talk about all this stuff. And we also have a Facebook
group called the Businessese HQ, where you can join. And we answer loads of questions
in there– my partner Daniel and I. So yeah, thank you. [APPLAUDS] Make sure I’m ready to go here. I’m Julie Blanner. And I have started my blog. I started it in January of 2008. And as a 10 year
veteran blogger, I’ve seen partnerships
evolve and change over time. I know some of you might recall
that when partnerships began it was as easy as them
sending you product, payment up front sometimes,
and just asking for a simple mention
and maybe even a link. And now, as you know, things
have evolved quite a bit and they’re asks are getting
more entailed and complex, and we need a little
more protection. A contract is designed
to protect both parties. I think it was really easy
earlier on in my career and even maybe about
four or five years ago, I started feeling
like the little guy. And I felt like the
contracts were really designed to protect them. And, like, what
was I going to do? What was my recourse? And I realized it
was time to start tweaking these
contracts to protect me and my business because nobody
else was looking out for it. And one thing that you can do
is read your contract carefully. Absolutely anyone can do that. I had a friend contact me
via Facebook a few weeks ago and asked, what do
you do when somebody is past due on their payment? They’re not responding. I’ve sent several notices. I’ve even tried to call them. And I said, well what
did your contract say? And they responded
back, I don’t know. Let me look at that real quick. So went back and
sent me the contract because they weren’t sure
what it really meant. There wasn’t an
actual payment date. You actually had
to read through it, you know, 10 pages
of legal mumbo jumbo that is best handled
by somebody like Jamie. But if you just really break
it down and read it bit by bit, it said that payment
will be within 60 days of the end of the term. So then I went and looked
at when the term was. While this post was
done in early December, the end of the term
wasn’t until June 30. So it’s 60 days from then. Well, they were really
unimpressed with that, but I said, really
you have no recourse. That is something that
you signed knowingly. You have to read your contracts. If you don’t understand
it, ask questions. I understand that a lot of
times it is a little confusing. And you can even ask them
to change the language to something a little
more relatable. But whatever you do, make
sure you update your contracts to protect you. When I first started
doing my own contracts I would use markup. And you can do that on Safari. You just open it. Well, it’s really easy in Word. But if you do it in a PDF,
you can do it through Adobe. There are so many
different ways to do it. Put it in preview. Even on your phones. You can circle it
with your finger. You can do a strikethrough. But anything that
doesn’t suit you, you can adapt and
change and send it over to the brand or agency. And what you might find
in a lot of contracts now is you have spent weeks
trying to get together on an agreement, coming to terms
of what you’ll do for how much. And then you read your
contract and you’re like, oh, I didn’t agree
to work for hire. I didn’t know they
wanted five images. And it can feel a
little disheartening. But really, those
again are just asks. And my friend Cheryl
Sousan over here, Tidy Mom, she a couple of years
ago said, you know, that’s just the second
phase of negotiation. You have to stand
up for yourself. And so don’t be intimidated, as
they have possibly a whole team of people advocating for them. And you need to
advocate for you. Whether that’s
through your lawyer or you’re doing it on
your own, you really need to advocate for
yourself and what works for your business
and your brand. So don’t be afraid to
renegotiate those terms. Also, I know it can feel
really intimidating when working through a
platform or wanting to sign onto a platform
about their terms. I know Collectively
had added in that you send in high resolution
images with each campaign. Tap says that they can use your
images any which way they want. So does Ahalogy. But you don’t have to
agree to those terms. And that doesn’t mean you can’t
work through the platform. Oftentimes, the
brands are working through the platform is just
a way of gathering stats. Each one works a
little different. But let’s take Tap for example. They’re working
through the platform to gather stats and information,
maybe finding the best fit of blogger, but
they’re not always opposed to working
outside of the platform. So I have my lawyer draw
up a contract outside of it with different terms of what
we come to agreement with, and stating that
Tap has no rights. And Collectively, I have had
a really great relationship with them for years, but
their terms of service say that you give them
high resolution images. And there are
sometimes brands just really want to work with you. You create your brand to
put yourself in a position where brands want
to work with you. And in any platform or agency
is going to make it work. And so I don’t license my
images through them either. So figure out what
are your terms. One of the questions
in the Mediavine group, which I absolutely love, is what
should be in every contract? And some of this is really
basic, but the parties. You want to know though,
are you working directly with the brand? Is it the brand that’s going
to pay you or is it the agency? Sometimes I might work
through an agency, but then its the brand that will send
the 1099 and the paycheck. So know who are the parties
that are in this contract. And as that Facebook mentioned– the Facebook question
I mentioned earlier. Know your term. You know, I try to keep
my terms really short, so that way I can kind
of move on from it. I want to do my work. I want to do it
well, but I don’t want it to limit any other
future opportunities. So determine your term. Of course, your
fee of what you’ve negotiated, either during
initial discussions or during the contract,
but that should absolutely be in your contract. And again, payment
terms and late fees. And don’t feel like you have
to accept their payment terms. One of the easiest
things I negotiate is my own payment terms. I require through most
agencies 50% upfront and 50% within 30 days. Well, a lot of them,
their standard terms are 60 or 90 days after the
day that the post goes live, not the day the post is
turned in to them for review or the work is done. Sometimes there’s months
of lag time there. And so the more you do
up front, the less stress it is in the end. Also, scope of work. I know this, again,
feels like another basic. But a lot of times
contracts they will send the scope
of work separate or in a separate document. I always require that to
be included in my contract. So that’s another thing
that we are collectively signing together
and agreeing upon. But the scope of work might be,
how many social media shares you’re going to do? If they’re going to use your
images for social media shares, do you require an at tag? Is a camera sufficient? It’s not for me. I want more than photo credit. I created it. So make sure you outline all
of that in your scope of work. And one of my favorite things
to negotiate is exclusivity. And I’m sure a lot of you are
very familiar with exclusivity. But I think keeping that
term as short as possible is not only great for
you, but for the brand. You don’t want to tell
yourself up and limit your opportunities. And an example of this is I
had a chocolate brand last year that had asked for
90 days exclusivity. And we were signing the
contract on December 1st. Well, what comes after? Valentine’s Day for chocolate. And I knew that that would
limit my opportunity. And so we went back and
forth and we negotiated. And at first we
thought maybe we would shorten the term to just 15
days and stick with my rate. They ended up paying
me three times my sponsored post rate for
that exclusivity to have me through the end of February. And so sometimes it’s important
to them sometimes it’s not. If it’s important to
them, they’ll pay for it. If it’s not, that gives
you the opportunity to work with another brand
and create more revenue. So another thing I’m
a big stickler on is reviews because I find
them to be really exhausting. I can appreciate them to
an extent because of course I want a brand or agency
to be very proud of my work and for it to fit them as well. But I also don’t want it to
impact my work, limit my voice, or change my style. And I also don’t want it to
create hiccups of, like, that never ending review period. So not only if you
agree to a review, which I do charge more for because
they are a little extra work, determine what review
period you want. I think, the shorter
the better again. The longer it goes, the
more people on their teams that look at it and the
more changes they want and the more they
keep circling around. And it kind of gets messy. So determine that review period. I think 24 to 48
hours is my favorite. I gave a brand three weeks this
summer because they just really pushed for it. And not only was it
too long, but then they weren’t ready
for it at that time. And I said, OK. Well, I had protected myself. There was a fee for that. So limit how many times you
allow them to review it. I know a lot of times I
asked some home bloggers, what are some of your concerns? And they’re like,
sometimes a brand wants to review it
like five or six times. Well, to me that’s just
completely unacceptable because it drags
it out and it loses something that’s really
important to my audience. And the most
important thing for me is to create content that really
resonates with my audience. And then, of course, fees if
they want to change something after the post goes live. I might be a touch
more gracious with this if a brand doesn’t have a
review period, but if they do, I try to be a stickler. Like, you had the
opportunity to review this. Any changes from this point
on, that’s additional work. There’s an additional
fee for that. So I include that in
my contract as well. I also have– again,
this is thanks to Sheryl, so I can’t take all
the credit here. But I also having reschedule
fee because, again, sometimes brands have delays and
they slow things down. Oh, now we can’t post
it until next Thursday. Well, I have editorial
content to stick by as well and I have my own
interests to protect. So for me, a reschedule a lot of
times creates additional work. Not to mention, I
might have planned to be out of town
that next Thursday and won’t have time to
sit there and comment back quickly on the social
and really support it. So it’s in the best
interests of both if you have a
reschedule fee to really keep you guys on track on your
contracts and reduce stress. Also, as a home blogger, try
to keep the product delivery guarantee now, working it
into all future contracts, because in December
I had not one, but two brands in the
busiest month of the year, say that they were going to
ship product in November. I got the product for both of
them the week before Christmas. Both required construction. Now of course I had
my reschedules fees that were in place, but
it was still a disaster. It was a stress. It was a mess. The week before Christmas
to have your living room under construction is
not my idea of fun. So now I have a little clause
that if the scheduled date is X, I must receive the
product by this date. Otherwise, not only will
you have a rush fee, because I normally would
charge a rush fee for something a week before Christmas
with a short turnaround, but you’ll have a
reschedule as well. So I think it’s really important
to iron these things up front so that you have
less stress in the end. And a reshoot fee. I know a lot of
you guys have been using this for several years. But when you have
to reshoot it’s almost like creating an
entire new sponsored post. There’s a lot of effort
going into recreating it, whether it be a
food or a restyling, and photographing and
editing and everything. And especially with video. I think it’s really important. So I have a reshoot fee
in all of my contracts. But I still had a brand
come to me last year. And they said– the agency had
laid out quite an extensive list of do’s and don’ts. And I had it right there. And I mean I checked
that 10 times. And I was like, I got it. This is awesome. I nailed it. I sent it to the agency. They were like, you nailed it. I absolutely love it. Can’t wait to send
it to the brand. The brand came back
and said, oops, this wasn’t supposed
to be used in this way. The agency dropped the ball. And of course, that puts
them in a bad position, but also I want to look
great for the brand as well. And it’s a brand I love. So I’m like, what do you do? Well, I could reshoot it,
which with video can be very expensive and time consuming. Or I can put a little spin on
it and edit a few things out. So I had the reshoot
three in there, but I really didn’t
want to do it. And so I said, what
if we just do this? And we edited out a
little bit of footage. We both agreed on it and
they still gave me about 80% of my reshoot fee. And they were happy. I was happy. It all worked out. But, you know, you can
also put a creative spin on that to make that work for
you too, but that’s extra time. And you need to protect
yourself and make sure that you are protecting your
time, because time is money. One of my favorite ones is
image, content, license, or rights because
lately it seems like everybody wants free
images and they are never mentioned upfront. And so I can now charge
for social media use. You know, if they
had to have– they are using my images
on their social to promote their product. That’s an ad. I should be getting
paid for that. That should not be part
of a sponsored post rate. I know everybody has
differing opinions on that, but figure out where you
lie and what works for you. But if they’re using it on their
website, that’s a license fee. If they want to use it on print. And it’s really hard
to determine the amount to charge for your images. I come up with a number that
I’m comfortable with based on what I’ve been paid
before, based on styling work I used to do years ago
with a photographer and what she charged
for commercial images, and other photographers
I know that charge for commercial images. But another really great
tool is going to Getty Images and using their calculator,
and figuring out how it’s being used, how
many times they’ll be used, et cetera? And just make sure you get
it all in your contract. And maybe double that rate too. And so this is
kind of a new one. It’s never been
my favorite thing. I’m going to be honest. But I really don’t
like to turn off ads when I’m doing a sponsored
post because new posts, that’s when you get a lot of
early on impressions. And it’s like
guaranteed ad revenue. Well, it was brought
to my attention recently that Google
considers the sponsored post to be advertorial. And so placing ads on those is
like a conflict of interest. So I’m thinking we might be
seeing some changes with this in the future,
but it’s something to start thinking
about integrating into your contracts. And I know some brands
don’t even ask for it, but maybe they would like it. Maybe you can offer them to
set the campaign for 30, 60, or 90 days. It’s a really quick little
checkmark box with Mediavine. But say, hey, I can turn off the
ads for 30 days for this much extra. You know, or something
along those lines. But it’s something to
definitely start considering. Another thing that has been
brought to my attention is that you want to make sure
that agencies do not purchase traffic to direct to your post. This is another
thing that’s becoming very common in the
last couple of years and can affect your
site and site quality. Of course, there’s things,
like, they can purchase through Facebook or Twitter. They can boost your post. That’s still OK, white listing. But no traffic or bots
from foreign countries, all inflated, not real. So that’s something
else that you might want to
consider integrating into your contracts
moving forward, because that can overall
affect your business. And again, you have to make
things work for your terms. For me, my terms, I don’t
allow branded messaging. I know they love their
branded messaging points. I know they spent six
months coming up with them and they’re so proud
of them, but they sound like just that, an ad. And I never want my site
to sound like an ad. And that might be because,
like I mentioned earlier, 10 years ago they just kind of
wanted to mention maybe a link, and I got to do
whatever I wanted. But I think that really
resonates with my audience. I never want my posts
to feel like an ad. So I am very upfront
that I do not offer branded messaging to be
integrated into my content. I also do not use a
brand mention in a title. And again, that’s something
if you do, absolutely fine, but I just thought I’d
share a few of my terms that I work into
my my contracts. And again, not to
sound like an ad, but I want it to be in
my own authentic voice. And I will not use
excessive hashtags. Two is my limit, and I really
try to pare it down to one whenever possible. So you have to develop
what your terms are. It’s kind of a good thing to
just sit down and write out, you know, what
you’re thinking about and whether that’s something you
incorporate into your contracts or you turn over to
a lawyer, like Jamie. I think it’s really important to
protect you and your business. And I had a few other questions
from the Mediavine Facebook group. And one was, what
do you do if they ask you to pull the post
because of a product concern, lack of availability in your
area, or something like that? I had this happen several years
ago and I was like, oh, yikes. I don’t know what
to do with this. And it was, like, a couple
of days after it went live. Turns out, a big company
that I shouldn’t mention just didn’t dot their I’s and
cross their T’s and didn’t have the right to use something
that they thought they did. And so they wanted me to
pull the content down. Well, I think that’s
another great thing to incorporate
into your contract. What do you do in
this situation? For me, that situation I
just removed all branded– any brand mentions, any links
to them– things like that. Any photos with their picture. And that was acceptable to them. But I never really want to
remove a post permanently from my site. So that might be something
you want to include as well. And then somebody
else asked, what if there are extras
in the contract that you didn’t
previously discuss? I mentioned that
before, but renegotiate. Never ever be afraid
to renegotiate. There are a lot of times
where I come into negotiating a contract at one
cost and then I receive the contract,
sometimes weeks later, and can triple the rate. So renegotiate it. If it’s important to
them, they’ll pay for it. If not, those asks,
you can eliminate them. And nine times
out of 10, they’re more than happy to eliminate
them or pay more for them. You just have to ask. And another question was,
when should you push back on changes made by PR? Like, especially in
a period of review. You have to remind
them, this is your site. You know your audience. You know what resonates
and works for them and works for you. You know your own
authentic voice. So anytime that
something doesn’t feel comfortable to
you, I absolutely think you should push back. And I know it’s so
hard, but I kind of try to kill them with
kindness before and after. I’m like, oh my gosh, I’m
so excited to work with you. Da da da da. But, you know, I can
offer this for that much. Kind of push back a little bit. So anything that doesn’t feel
right, just talk to them about. And most times agencies,
they just want to make– they’re the middle man. They just want to kind of make
things work on both parties. So they’re eager
to please as well. Come on back up for questions. Thank you. If you guys have questions do
you mind using one of the mics? Thanks. So I had a situation
last year where I had a contract with a company. And they had sent
me the product. And days before I was
about to work on the post, they sent me an email
and they’re like, we ran out of money. We can’t pay you. What should I have done? [INAUDIBLE] really annoyed. Did you have a contract? Yeah? Did it say whether or
not they can terminate with or without cause? That’s where you
would look for that. I should have
looked for it there? OK. I figured I couldn’t demand
them to pay me because– Well, you can’t get
blood for money. Right, exactly. That’s what I thought. But that being
said, you can look to see whether or not they
had the right to terminate or how they terminate. And depending on the
value, whether they said they have money
or not doesn’t mean they don’t always have money. So you could have other
recourse depending on what the value of the contract was. Thank you. You’re welcome. Any other question? Yes. Do you mind going
to the microphone? So if your recipe and photos are
republished in a foreign media, let’s say a newspaper,
is there anything we can do over here
or just because it’s their policy and their
countries, like that? So that is copyright
infringement. It depends. So I’ve had clients who’ve
had this issue where scraping sites or somebody’s
image gets stolen. If it’s online, you absolutely
can go to the host provider and you can fill out the
DMCA, the Digital Millennium Copyright Act to [INAUDIBLE]. Like, I had one of
my recipes being published in a magazine
that is actually in a newspaper in England. But it’s, like, both on
their website and on paper. You would email
them and tell them they’re infringing your
copyright, presuming you had a copyright, and
that you have US copyright. And email them and ask them– It was like a very known– like, everybody
knew it was mine. People messaging,
like, hey, have you seen you’ve been
published there? I was like, what? So my recommendation would be
to email them and just say, hey, you’re infringing my
copyright and I’d like a cease and desist. I’d like you to take it down. Their host provider
will pull it down. Is there a timeline to that? Because some months have passed. A couple of months have passed. I’d have to look, to
be honest with you. It’s so fact specific. So I’d have to really look
at that specific instance. In the States, I
recently had a brand use my photograph
in a video that was the lead image, and
not only did I do the cease and desist and ask
them to take it down, but I ended up collecting on
it as well for all the use that it incurred
between the time that it went live until
it got 5 million views. Yeah. So, many years
ago I was on Etsy. And my brand name is
Made by a Princess. And about three months
after I started on Etsy, some law office in New York was
registered, madebyprincess.com. And they’d been sitting
on that website. There’s no other
business by that name. I called the attorney’s office. After so many years, this
is just ticking me off because that’s getting traffic. The value of that domain is
increasing because people are looking for my site. So I spoke to one
of the attorneys and I said, you’re
squatting on this domain. And he says, we had a
client in New Jersey. She had a bakery
and she doesn’t know what she’s going to do with it. None of that is true. I couldn’t find any of it. Do I have any
reciprocity for that? So a couple of things. Just because you have
a name and a trademark does not automatically
entitle you to a domain name. That’s frustrating
and a lot of people get very angry about
that, because presumably– what is Made by Princess? What is your brand? What do you do with that name? Party inspirations,
recipes, crafts, DIYs. So if somebody wanted to
start an energy drink called, Made by a Princess, they could
do that because that’s not your genre. So you’re only protected
in your class of goods, presuming that with
registration even. So anybody can use that name so
long as they’re not infringing. So they can sit on that
domain, unfortunately. You can offer to buy it,
which a lot of people don’t want to do because
now all of a sudden they realize you want it. So the price goes up and that’s
a cost benefit analysis you have to make for your business. But ultimately, my suggestion
is always, if you can buy, it buy it. Even if it makes you angry to
pay a little bit of extra money because it’s worth it. I just had this
happen to a client. But watch it. Monitor it. Make sure they don’t
put anything up there. Make sure they’re not
infringing on your name and– so, yeah. I’ve been watching
this for years, thinking, maybe that credit
card is going to expire. Is it just auto renew? Yeah. For years. It’s like, eight years. I hear this a lot,
unfortunately. Hi. Thanks so much for today. It’s been really helpful. Trademark question. I have a trademark. It’s about seven
or eight years old. I just renewed it. I’m in the process
of renewing it. We’re doing the– Declaration of use. Yes, thank you. You’re welcome. Is it worth it to me to
change the description of it if it has evolved? And it’s sometimes
it’s like, it’s the if it ain’t broke
don’t fix it thing. I’ve been going with that. And it does more or
less encompass the fact that I’m a blogger, but I almost
want it to just say recipe blog and that’s pretty much it. So is it worth the
$350 to you know– That’s a loaded question. That’s a complicated one. If you try to change
or add classes, it’s essentially a
new registration. And so they’re going to run
you through it all again. That being said, if you are– you want to make sure that
your class fully encompasses your business because
you don’t want someone to be able to infringe
because your class is written differently, because of the
way that people registered blogs eight years ago is far
different than the class now. So I would have to look at
how it’s currently described, what you’re doing, and
then I could give you an assessment on that. So the universal question
would be for anybody considering a
trademark, should they just try to just cram things
into that description? And you know what I mean? Because this is for
anybody considering it. That’s who I’m thinking about. It depends is the other answer. You cram too much, you’re
going to get rejected. And you get rejected quick. You have to cram in
the right amount. Mine’s like four lines long. Yeah, so that’s why
crafting the class is so critical and so hard and
takes many years of practice to do it right. And so crafting a class is one
of the most important things– besides your research,
crafting your class is one of the most important. You can register in
multiple classes. You also have to remember
that, as you mentioned, you have to tell the Trademark
Office between five and six of every registration,
you’re still using it. Because they don’t let you sit
on trademarks you’re not using. So if your class, you’re
suddenly not using it anymore and that’s changed,
you may have to. So that’s another
thing to think about. Cool. Thanks. Hi. Is liability insurance
for a blogger recommended or is
an entity enough? It’s a great question. So it depends on the type
of work that you’re doing. Do you love my lawyer,
it depends, answers? That’s all they teach in law
school, is to say, it depends. No, I’m kidding. I learned a little more. Honestly, it does depend. So my clients that are
networks, my clients that are doing a large volume
of sponsored content, or my clients that are getting
information from somebody else that they’re then liable
for– because you guys may not realize this, but when
you work with networks, those networks are doing
reps and warranties, which is part of a contract,
basically I promise, are rep and warranting
to the brand that they’re going to make
sure that all of your content is not infringing
anything, is not using images you’re
not supposed to use. And so for them I say,
yeah, you have to. For a blogger that’s doing a
lot of images, a lot of video, is taking images from other
people, it can’t hurt. Because what insurance– the
LLC just limits your liability to whatever assets your
LLC has, but it still can come after all the
assets of your LCC. So if you have a lot
of assets in your LLC then you have a potential
for higher liability. The insurance will cut that. And it’s really good for
copyright infringement, trademark infringement,
defamation, likeness releases, which things people never
want to think about. Like, you can’t just put
a picture of somebody up on your website
because you took it. That’s not permission. So it depends on the type
of work that you’re doing. And I’d have to look at the
website and let you know. But for the clients I
typically recommend it to are the ones that are either
using other people’s images or writing controversial topics. That’s one of the
considerations, but there are many and I could
certainly give that opinion. Thank you. I’ve got two,
hopefully, questions if nobody else jumps in. But the first one
is, what do you do if there is a other famous
person that has your name? So I have my name, my middle
initial, last name dot com. But I can’t get the other one
because it’s some guy in the UK who has no interest
in selling it. So what do you do
in that scenario? And there’s no
legal problems I’m going to face, right,
from trying to build a brand around my name? Around your name? It depends. No, as long as you are using– typically, no. As long as you’re not trying to
capitalize off of their name. Like, you have a
legitimate brand. You’re legitimately
using your own name. Nine times out of
10, that you’re fine. So really, it’s the
people who are squatting, who are trying to
dilute somebody’s name. And if you’re not
trying to do that, if you’re in no way,
shape, or form trying to pass yourself
off as that person, you should not have an issue. Because people share names. Like, that exists. And just because someone’s
incredibly famous does not necessarily mean
that no one else can ever use that name. But the problems come when
there’s a blurred line if you trying to do
something cute, you know, where you try to drive traffic
using that name, that’s when the issues happen. Got it. The other question
was, can you speak to– because there’s
a lot of rumors, especially, like, with
YouTube around, like, what is fair use if you’re
providing commentary? So can I use 10 seconds of a
song or 10 seconds of a clip? Or like the video earlier
where we used these videos as an example. Ready? Yeah. It depends. So fair use is fact
by fact, case by case. It is one of those situations
I cannot give you a bright line rule for. It is as frustrating for the
content creators and the people who are using it as the lawyers
who have to evaluate it. All the courts have like these– I mean, the case law
around fair use is crazy. There are certain rule– there’s no hard fast rule. You must only use eight
seconds of a song. It really just depends on, your
work can’t replace that work. That’s the whole point. You’re using it to
comment on it, a parody, or for scientific research. The less likely the work
is to commercially take funds from that copyrighted
work or replace that work, the more likely it is fair use. So that’s sort of
what the balancing is. Honestly, get permission. I know sometimes it can
be incredibly expensive. I know sometimes it can be
frustrating, but just ask. A lot of times they’ll
say, yeah, five seconds. That’s fine. You’d be surprised. And I know famous songs
are a lot more difficult. And you don’t want to get
that cease and desist. Thank you. You’re welcome. Sure. Go for it. I just have a quick question. So we are all working on
these different social media platforms and stuff like that. And let’s say you have
someone that says, there are some platform that
if they file a request for them to take down the image
because it’s so similar and they just
automatically take it down, but I didn’t violate
anything, do I have– and then, of course, there
are these huge people that you can’t seem
to get an answer from to get it back up
to defend yourself, do I have any recourse in that? I get this question a lot. I’m assuming you’re
talking about Pinterest. Pinterest is tough. That’s not so much of a– that’s their– the problem
is, Pinterest knows that if Pinterest leaves up
something that’s copyrighted and that you’ve put
up there in violation of somebody else’s
copyright, they get massive fees and fines. And it’s a big deal for them. So that’s why typically they’re
very fast to just pull it down and then you have to
go through the process. There’s not much
you can do for that. That’s not a legal–
that’s a Pinterest thing. Like, that’s their
terms and conditions. That’s what you agree to. That’s what I figured. It is. That being said, reach out
to the person who filed it. A lot of times people
get so nervous. And this is what
Julie was saying. Just ask. Like, I can’t tell
you the number of times that people are
like, they’re just so angry and this and that. Kill them with kindness. Like, Julie’s advice was
amazing in terms of negotiation. Just ask. The worst thing someone’s
ever going to do is say, no, and maybe give you some
four letter words, which you were prepared for anyway. And our skin is thick,
so we don’t care because that person’s not cool. So just ask. And so a lot of
times I have clients come to me in an uproar,
so angry, and I get it. That is emotional and that’s
a big deal to you guys. That’s your traffic. That’s your money. That’s your livelihood. And it sucks. And so my recommendation
is always, you try first. I say that to everybody. I’m never going to step
in and write a letter until my client has
tried first because you get way farther than I do,
because the minute a lawyer steps in, everything changes. People’s backs go
up against the wall. No matter how cute and fun I am. They don’t think that over
email or on a phone call. So, yeah. Just ask. And they can– I’m pretty sure
they can reverse it themselves and withdraw the complaint. So a lot of times you’re like,
this is a misunderstanding. Here’s my picture. I just want to clear this up. And I know not everyone
is that rational. So I was just trying to see
if if you had run into this. I do. Some secret person to– Some people know people at
Pinterest and that works, but no, there’s no standard. All right. Thank you ladies so much.

Leave a Reply

Your email address will not be published. Required fields are marked *