I troll Facebook groups HARD. I usually find that contracts for creative businesses are a huge topic. Usually these creative business owners can’t get their clients to pay or they don’t know how to handle a client or independent contractor they no longer want to work with. The first thought that crosses my lawyerly mind is: “Do you have a contract in place?”. The second thought is: “Does your contract address these issues?”. Most creative entrepreneurs only care about the creative part of the business, and throw the legal “junk” on the bottom of the to-do list. All businesses need signed contracts. Although, verbal agreements can be legally binding, they are extremely hard to enforce in court. Today, we’ll be discussing contracts for creative businesses that you need in writing to make sure that your business is protected.
1. Client contract
If you are always booked and busy with clients, your client agreement needs to be airtight. Client agreements protect you and your business from clients who don’t want to pay, unruly clients, your intellectual property, and so much more. Although there are many generic contracts out there, everyone’s business isn’t the same so make sure that you are making the appropriate changes to protect yourself. And when you make changes in any client services, make sure that you update your agreement to reflect the changes.
3. Terms and conditions
Bonus contract: Independent contractor agreement
Eventually your business is going to grow and you are going to need to outsource tasks. Once your business gets to this level, you’ll need an independent contractor agreement. Some terms that should be in your agreement?
The parties to the contract
A term stating that the worker is an independent contractor
An intellectual property ownership/work for hire clause
These are just some of the terms. By the way, each state has different laws about the difference between an employee and an independent contractor. Having someone sign an independent contractor agreement doesn’t necessarily mean they are an independent contractor. But hey, that’s a different post for a different day.
If you need a contract for your creative business, check out WM Law Shop for various types of contracts.
If you want a custom contract for your business, fill out the form below to work with Wilson Murphy Law.
Are you blogging for business? Content marketing is a great strategy to get more customers or clients into your business.
Blogging can take hours and it’s tough when you see someone who has copied your content word for word. Well, you’re in luck because today I’m going to tell you how to prevent this from happening and you can continue blogging for your business with peace of mind.
1. Registering your copyright will protect your blog content from copycats.
Firstly, a copyright is a form of intellectual property law, that protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. As soon as you write and publish your blog post, you have created copyright content. Next step is to register your blog post with the Copyright Office. By registering your blog post for a copyright, you are setting yourself for the ultimate content protection.
Advantages of copyrighting your blog post?
Licensing out your blog post (and GET PAID)
Derivative works (include the posts in newsletters, e-courses, and on social media)
By disabling the ability to copy and paste, you are making it 100x harder for someone to copy your post. If someone is willing to rewrite your whole post..well that’s a weird and miserable existence for that thief. You can disable the copy and paste by inserting CSS code, which is hard and annoying. Or you can use a plug-in on WordPress. The WordPress plug-in I found is called “WP Content Copy Protection & No Right Click.” Best of all, it’s free! I’m all about free.99.
3. Use a work for hire agreement or put a work made for hire clause in your contract to protect your blog content.
Not all of us love writing our own blogs for our business. *Spoiler Alert* It pains me to write my posts, and takes all of my energy to sit down and put my thoughts on paper.
If you are like me, you have likely hired an independent contractor, copywriter, or virtual assistant to take over that task. When you outsource your blog posts, the person writing it for you is the author of the blog post, unless it is an employee.
However, you can protect yourself and content by having a work-for-hire agreement or clause in the service agreement. The work-for-hire agreement or term ensures that the contractor does not keep rights over the work created.
Below is an example of a work-for-hire clause you can include in your agreement: “ Any work performed by [Independent Contractor] while working with [Company Name] shall be considered a “Work Made for Hire” as defined in the U.S. Copyright laws, and shall be owned by and for the express benefit of [Company Name]. In the event it should be established that such work does not qualify as a Work Made for Hire, [Independent Contractor] agrees to and assigns to [Company Name] all of [Independent Contractor]’s right, title, and interest in such work product including, but not limited to, all copyrights and other proprietary rights.”
4. Include an intellectual property clause in your terms and conditions
When blogging for business, you need to have the legal aspects of your business setup. This includes having terms and conditions on your website. Terms and conditions are guidelines on how your site visitors can behave while visiting your site.
It was only a matter of time before Cardi would try to trademark her signature slogan “Okurrr”. Cardi decided to file an application to register her trademark in association with paper cups, posters, and clothing, according to Page Six. We all know Cardi is about making money, as she has told fans to Google ways to become a millionaire.
1. Deter copiers
Have you ever walked into a boutique or a nail spa, and you knew they meant business? Yea, I know we all know the saying, don’t judge a book by it’s cover. But there are just some things that make you look professional and like you are running s*it. That’s what the ® symbol looks like to your customers and competitors. They see it like you have taken your brand to the next level by registering it with the United States federal government. This in turn may shy away a person or company who wants to use your name or logo or any other trademark within your business to get customers.
There’s so much thievery nowadays, even by big brands who think that because they have the money they can get away with anything. *Ahem, I’m looking at you Forever 21, Urban Outfitters, the Kardashians, and a ton of the big luxury fashion brands*. But if you have a registered trademark, there’s a better chance that a person or company would not want to fight in court. And this is a great way to segway into point #2.
2. Sue infringers in Federal Court
The only way you can sue in Federal Court is if you register your trademark. There is some common law trademark protections but honestly, it doesn’t do much if someone in Texas tries to infringe on your trademark. That’s because common law trademark only covers you in your immediate geographic location. If you file and register your trademark, the court presumes that you are the owner of the trademark from the outset. You may also be granted actual costs from having to file a lawsuit, attorney’s fees, and statutory damages up to $200,000.00.
3. Professional and trustworthy
By filing a trademark and using the ® symbol, there is a level of professionalism that people see, like I said above. People think that if you have registered your trademark, that your trademark carries value. And that you are a brand that will continually grow in size and money.
If you file a trademark registration application, you will be able to send a cease and desist letter. The letter may have more impact, because they are likely to take it more serious. And you may be able to get them to stop their behavior without resorting to filing a lawsuit because they know you are the one that owns that trademark.
5. Protection from US Customs if someone tries to import products using your trademark
Lastly, if you sell products and you registered your trademark, the products with your trademark will be stopped by US Custom and Border Protection. The products will be seized and destroyed if someone is infringing on your trademark.
These are all really good reasons to think about filing a trademark application. If you want to learn more about the trademark process at Wilson Murphy Law, you can find the information here.
Want to talk about your trademark? Fill out the information below and see if Wilson Murphy Law can help.
Do you have some cool branded components to your business and wonder “Can I trademark that?”. Most people are under the impression that everything can be trademarked. But, the United States Patent and Trademark Office (USPTO) have rules about trademarks they allow. This guide will take you through what the USPTO accepts as a trademark. If you need a refresher on what a trademark is, check out this post.
Now… let’s get started on this fascinating topic, shall we?
1. Name and Business Names
So, of course we know that your business name can be trademarked, if you are using the name to sell goods or services. But you can also trademark your name if you are using your name to sell goods or services.
For example, Kylie Minogue and Kylie Jenner battled over the trademark Kylie. Kylie Minogue won that battle because her fans know her by Kylie. Kylie Minogue’s fans have identified her as Kylie before Kylie Jenner was born. Minogue’s lawyers believed that if the USPTO granted Kylie Jenner the trademark, “it would violate and diminish the prior and superior rights” of the singer and likely create “confusion resulting in damage and injury” to her.
A lot of people’s fave artist, Beyonce, is an ongoing battle to trademark her daughter, Blue Ivy’s name. You may think that just because Blue Ivy is somewhat of a celebrity, that’s enough to trademark her name. WRONG! Beyonce registered Blue Ivy’s name under a trademark class to sell baby goods. A trademark class is a category that you sell your goods or services under. In 2017, an event planning company named Blue Ivy opposed the name and there has not been a resolution yet.
A popular influencer whose name is trademarked? Carli Bybel- beauty influencer
The takeaway from this is that you have to be selling goods or services, if you are going to try to trademark your name. Also, the USPTO will not allow you to trademark only your last name to preserve it, generally. If the last name acquires a secondary meaning through use, the USPTO may allow you to trademark the name.
2. You can trademark slogans.
Does “Just Do It” sound familiar to anyone? Yes, you can trademark your slogan. But it must correspond to a good or service that you are selling (shocking, i know!) So if you use your slogan for an advertising campaign or on your products, then it is trademarkable (maybe a word? Idk). But sometimes your slogan has to acquire a secondary meaning. That means that when someone sees or says your slogan, that your product or service comes to mind. This is likely how Nike’s slogan became a trademark.
3. Domain name
Ah, domain names. I don’t know if you guys realize it, but the law drags its feet when it comes to catching up with technology. Hello… Reno, Nevada still outlawed sex toys until 2009. Nevada of all places *rolls eyes*. Anyway back to domain names. A domain name can be trademarked if it is used in connection with a website to sell goods or a service. A good example of a domain that has been trademarked is godaddy.com. I want to discuss some important aspects of domain names and trademarks to keep you outta trouble.
NUMBER ONE: Just because you have a domain name, does not mean you have a trademark.
NUMBER TWO: Buying a domain name without doing your research, may result in trademark infringement. if that name is a registered trademark.
So make sure you do your research before choosing a domain name because you may lose it. All that marketing and all that traffic you’ve drummed up could vanish in a snap. You’ve worked too hard for that! So take a little bit of time in the beginning to dig and snoop around when choosing a domain name. Pretend it’s like you’re checking up on someone who you don’t care about…but maybe care about a little…you know… just to see what they’re up to it.
Ah… the logo. The drawing that you’ve spent $2,000+ on to create and what everyone thinks of when they think of a trademark. Your logo becomes a trademark when you use it to sell goods or services. But just having it on a shirt or mug does not make it a trademark. The logo needs to be on your packaging, if you sell goods. If you are a service based business, the logo on your advertisement or webpage is enough.
Some familiar logos, you may wonder? The golden arches (Mcdonald’s), the red bullseye (Target), and the swoosh (Nike).
4 words…the little blue box. What comes to mind? Good ol’ Tiffany & Co. The USPTO will register colors as long as the colors area a recognizable component to your brand. Colors usually need to acquire secondary meaning to be registered with the USPTO. That means that over time people associate the color with your brand. If you try to register red, and you’ve only been in business for 6 months, the USPTO will likely deny it. But over time, you will have a better chance of registering that red color. And no, I don’t have an exact time because it’s under the USPTO’s discretion.
I am one of those people that loves to know random facts. So much so, that my husband calls me a person who knows stupid knowledge. Whether you know it or not, Coca Cola has trademarked their packaging. The USPTO will register packaging if its distinctive or has gained secondary meaning. Product packaging must also be nonfunctional to be protectable. This means that your packaging doesn’t serve a particular purpose. The packaging must be something that sets your goods apart, such as a skull shaped vodka bottle. The skull shape doesn’t serve a particular purpose. But, it is distinctive from other vodka bottles and how a consumer recognizes the brand.
7. Did you know you can trademark sounds?
Did you know that some of the sounds that you hear everyday are trademarked? This includes the NBC chimes, the MGM lions roaring, and the Mr. Softee ice cream truck song. How many of you guys remember the ice cream trucks in your neighborhood? It’s what childhood dreams are made of *sniff sniff*. The chimes, the lions, and the jingle of the ice cream truck are all sounds that function on how you recognize these brands. Remember, any old sound can’t be trademarked. The sound has to serve as a way for consumers to identify your brand.
8. What about #hashtags?
Remember what I said in #3, about how the law is late to catch up on technology? Well, they may have redeemed themselves by including hashtags into the trademark world. The USPTO states that, “A mark comprising of or including the hash symbol (#) or the term ‘hashtag’ is registerable as a trademark of service only if it functions as an identifier of the source of the applicant’s goods or services.” Back in 2016, the number of hashtag trademark applications had increased 64% in one year. That was 3 years ago, so I can only imagine that the number has increased. Many companies use their hashtags to find influencers and to engage with consumers. So it only makes sense that they would want to trademark their unique hashtag. Remember, if you want to trademark a hashtag, it still has to be distinctive and will not cause confusion among consumers.
P.S. Sticking a hashtag in front of a name, does not remove the likelihood of confusion element.
I hope this has helped you out while you are on your trademarking journey. Trademarking is never-ending because as time changes, so does the law. If choosing the right name to trademark is leaving you stumped, use this guide so that you can choose a name that’s memorable to your office and passes the Trademark Office standards.
When you were in elementary school or middle school, how many of you all used to cover your papers so no one would copy your answers? *raises hand*
Yes, I was that kid and it explains my Type A Personality at an early age. Was I a nerd or a geek? Don’t know, don’t care! I just know I studied way too hard to let somebody copy my work.
One thing I do know is how hard it is to run a business, and how hard it is to create all of this content for your readers. I know I struggle with blogging. It’s a lot of work.
And those who make their bread and butter off of blogging and creating content, I know it makes your blood boil to see someone stealing your work and taking the credit for it! Photographers, this goes for you too. I can only imagine someone using MY PHOTOS that I worked so hard to create and edit, and pass it off as theirs.
According to The Verge, Instagram has ONE BILLION followers on the site. ONE BILLION! That means there are 999,999,999 people who can steal your photos on Instagram and pass it off as yours. Although we can’t stop the thieves, we can deter them!
And in this blog post, I am going to give you 5 ways that you can protect your Instagram pictures and deter copycats from stealing from you.
1. Register photos with the Copyright Office
Registering your photos with the Copyright Office is the #1 way to protect your Instagram pictures. I have given you some of the benefits of registering your photos with the Copyright Office, like statutory damages and attorney’s fees.
Here are other benefits for copyrighting your photos:
• To file an infringement case in court, you MUST register your work. If a registration has not been filed, then you are SOL. Well, kinda. If the infringement happened within that three months, you can still register and then file suit. If the infringement happened and three months have passed, you have forfeited the big bucks (i.e. statutory damages and attorney’s fees).
•If you file an infringement suit, and you are already registered, the Copyright Office is going to assume you are the owner. That’s one hurdle that will get you closer to winning your case.
• Registering your photos with the copyright office will establish a record with the U.S. Customs and Border Protection for protection against the importation of infringing copies. Has nothing to do with IG, but who doesn’t like learning more!?
2. Use the copyright symbol to protect your Instagram pictures
Put a copyright symbol on your photos. This puts the public on notice that you created this photo. Although you don’t have the same protections as when you register your copyright with the Copyright Office, the copyright symbol may deter people from using your photo.
Also, if you register your photo with the Copyright Office within 3 months of publishing your work, this includes publishing to Instagram, you can be eligible for costs, statutory damages, and attorneys fees if someone infringes on your photo. But make sure that you register the photo within 3 months. If you don’t, you may be giving up attorney’s fees and statutory damages, if you decide to sue someone for infringement.
3. Watermarking your photos to protect them from poachers on Instagram
Another way to protect your Instagram pictures is to watermark your photos. Watermarking your photos also lets others know through your watermark, that you were the original creator of the photo. However, we all know how easy it is to download a picture and remove the watermark from the photo. There’s so much technology that is being used for evil, although intended to be used for the good. But if someone does takes off your watermark, they are determined to steal from you. That’s why copyright registration is important, because you can sue the infringer.
4. Report the infringement to Instagram
Instagram already has there own way to report if someone is infringing on your copyright. It is unclear if your copyright has to be registered, but you can probably reach out to them directly to get a little bit more information.
However, if someone is impersonating you on Instagram, you can reach out to Instagram and show them your ID and they will take down the account.
5. Send a cease and desist letter
There are literally companies that look for people who infringe on copyrights and trademarks. So if you notice that someone is using your Instagram pictures, you can send the company or user a letter directly. You should ask them to take down your work and demand compensation since they stole from you.
But word of advice, if you aren’t ready to go to court, don’t go threatening people with a lawsuit and asking for an exorbitant amount of money. And remember, if the photo isn’t registered with the Copyright Office, you may only be able to get actual damages (which are harder to prove), and not statutory damages and attorney’s fees.
Bonus: Did you know that you can protect your photos by putting the metadata in your photos?
If you edit your photos on Photoshop or Lightroom, you can add copyright information to the metadata of the picture. From my understanding, Instagram removes the metadata automatically from your photos. But you can still use this method on your website to protect your photos. Although, poachers can still remove the metadata, it’s another way to deter those from stealing from you. And if they don’t know about this method, your metadata will still be on the photo as proof that they have infringed on your copyright. To find out how to put metadata on your photos through Lightroom, click here. To find out how to put metadata on your photos through Photoshop, click here.
Have more questions about registering for a copyright or cease and desist letters? Reach out to Wilson Murphy Law and let’s talk.
I will be doing a monthly round up of legal news that pertains to my practice areas. This month I focused on trademark news, because it’s a little bit more entertaining and relateable. These articles are all pretty easy reads and shouldn’t take longer than 5 minutes to digest. Enjoy!
1. Pooey Puitton (MGA Entertainment vs. Louis Vuitton), check out my blog post that discusses how this company may be able to win their lawsuit with LV over their parody toy.
2. McDonald’s loses its Big Mac trademark in EU. See how and why McDonalds lost it’s trademark for the Big Mac in the EU. This is kind of a big deal.
3. Netflix is being sued over the choose your own fate movie, Black Mirror: Bandersnatch. I was an avid reader as a child and I used to love the “choose your own adventure” books. Well, the publishers of those books are suing Netflix for trademark infringement. Read the article here.
4. Rihanna suing father over Fenty trademark. This article discusses why you can’t just go around using someone’s trademark all willy nilly, even if you have the same last name and are related.
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