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The Copywriter Club Podcast
TCC Podcast #451: All Your Legal Questions with Andrea Sager
00:58:52
As the owner of a copywriting business, you have a lot to think about—your products, your clients, your research process, writing great copy, finding new clients and more. So it's no wonder we tend to push legal questions to the bottom of the to-do lis...
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- [00:00]
Kira Hug
Do you have questions about contracts, trademarks, business entities, your legal risk and liabilities? Today I have answers. This is the Copywriter Club Podcast. About a year before I took on my first freelance writing project, and I'm going back a long time here, I took the lsat. That's the test for admittance into law school. I had the thought that I would become an attorney from about the time that I was in eighth grade, and I did well enough on the test to get into most of the schools that I was planning on applying to. My plan at the time was to practice law in the nonprofit sector, and to help with that goal, I decided to enroll in a master's program in public administration. I was going to do an MPA and a legal degree at the same time, but once I started that program, I was so bored by the curriculum that I could not envision myself finishing. And the same kind of applied to law school as well. At the same time, I met someone who asked me to write an article promoting a product for a company that she was working for. And when I realized that I could make money as a writer, I turned my back on my dream of being an attorney and I started writing copy. So when it comes to legal advice, I cannot really help you, but my friend Andrea Sager can. Andrea has helped hundreds of small businesses with legal advice and services, and I tried to ask her all of the legal questions that copywriters tend to have about things like using AI, contracts and agreements, trademarks, and how we limit our exposure to legal liability that could cost you your business, your home, and more. This stuff matters, and I hope that you're going to enjoy this interview. Before we get to the interview, though, the last couple of weeks I've mentioned that I put everything I know about conducting research and using AI as part of my research process into a short course called Research Mastery. It includes a lot, but it's not overly long or impossible to watch. I've created the kind of course that you can watch in an afternoon or a weekend and walk away with a research process that helps you uncover the insights that you need to write great sales copy. It includes more than 20 different techniques for capturing ideas. I promise you're probably going to find at least one, and you might find several that you're not using now that may help you do research better. I also included all the questions that I use to find big ideas about my client or their product or their customers and their competitors, as well as all of the documents that you need to capture your research and several tutorials on how to use AI to speed up the processes and even to help with the research yourself. This is especially useful if you're working with a new customer, a new client, a new business that doesn't have a long list of customers that you can survey or interview for information. And as I mentioned, unlike other research courses that take hours to watch and implement, this one will teach you everything you need to know in a single afternoon. You can learn more about this unique, unique resource@thecopywriterclub.com researchmastery. Research mastery is all one word. I'll link to that in the show notes so that you can easily find the link if you can't type the URL into your Browser right now. Thecopywriterclub.com researchmastery and now my interview with Andrea Sager.
- [03:26]
Andrea Sager
Andrea, welcome to the Copywriter Club Podcast. I am thrilled to have you here. It's been quite a while since we talked to an attorney about all of the stuff that we need to be thinking about in our businesses, so I'm excited to have you here. But before we get started, maybe you could tell us your story. Just how did you become an attorney, an author, founder of the legalpreneur.com and if I'm reading your website correctly, last year you were ranked in the number 22 trademark lawyer in America. How does that all happen?
- [03:58]
Yeah, thank you so much for having me. I so I way back when I started my journey in big law, I got the big fancy quote unquote dream job right out of law school, which was the plan. I thought I was going to be married to my job, work my way up to partner. And the first week there I it hit me all of a sudden and I remember thinking there is absolutely no way I can sit here for the next 40 years of my life. So immediately I'm trying to plan my exit. But it was a little harder because my husband at the time we he was staying home with our son and I was the only breadwinner. I was the only one making any income. But about seven months into my journey in big law, I always tell people I manifest getting fired, but ultimately I just wanted to work with small businesses. I had a previous small business where I had connections with other small business owners and they kept coming to me at the firm asking for help with trademarks and similar things that I do today for small businesses and the firm didn't want to help them. And at the time I was confused because nobody was asking for a discount. Nobody was asking for a discounted rate. They just needed help and nobody to go to. And so I saw this clear need in the market. And after seven months being at the firm, I had an idea that I would be able to survive if I went out on my own. But I couldn't exactly make the leap on my own. And luckily the universe pushed me out and said, all right, here you go. You no longer have a job here, so you got to figure out how to make it work. So that the day that I got fired, I launched my law firm and I was, I was ready. I was planning on it. I launched my law firm, had my first client that night, and that was seven years ago, and it's been quite the journey ever since. I launched my law firm, Andrea sager law, in 2018. Legal preneur came about in 2020 when I wanted to reach even more entrepreneurs and legalpreneurs. What we, what I call the DIY side of things, we have all the resources. We can file your llc, you can buy all the contract templates, all the legal related, but no attorney client relationship. That is what Legal Preneur is. So it's, it's just an opportunity to meet even more entrepreneurs where they're at and still providing all of the resources that you need to set up and grow and be successful as a business owner. So that's how I got started. It's been a wild ride, but it's, it's been quite the journey and just so fun. And I'm every day, I'm so honored to be able to serve entrepreneurs. And in my law firm, I primarily now just do trademarks and that, that's how I have been ranked so highly. I've it, it honestly is an honor just because that is. My passion is helping small businesses and, and just being able to continue doing this year after year, day after day. After seven years, it gets better every day. And I'm just excited for the next seven years.
- [06:55]
I'll bet most people when they get fired, don't have the plan. They're not ready to go. It seems to be pretty shocking and there's sort of a period of adjustment. Doesn't sound like that happened to you. You hit the ground running.
- [07:09]
Yes, I was ready. I. Well, what's funny actually is so we were living in Cincinnati at the time and we were making the move to Houston. So on that Monday, we put our house for sale. Wednesday, I had texted my husband and said, I, you know, I can't. He. He. We knew I wasn't happy. We knew I wasn't going to stay there. But I said, I can't stand it here. I want to quit today. Can I just quit? I think we have enough money to hold us over until we move. And he said, just wait until we have a contract on the house. That way we know it's going to sell. And I said, fair enough. Absolutely. That makes sense. Friday morning is when they walked into my office and told me that I had a choice to make and they offered me a severance package. And I actually just packed up my thing so quickly and never went back.
- [07:55]
Wow. Well, that's the start of a good thing. And so what you're doing today is helping a lot of entrepreneurs, like you said, with legal stuff. So let's talk about this. Obviously, our audience hears copywriters, content writers, marketers, most of whom, though not all, most of whom are freelancing in some capacity. Maybe it's their full time business, maybe they're doing it on the side, maybe they're trying to figure out how to do it full time. Where should they be thinking about legal stuff? That's maybe a terrible way to ask the question, but what's the first thing that they should be saying? Okay, if I'm going to do this thing right from the beginning or from where I am now, I'm going to start doing it right.
- [08:39]
Kira Hug
What's the first question they should be.
- [08:41]
Andrea Sager
Asking, number one, that you want to always take care of, no matter what business you're in, no matter what stage you're in, if you haven't done this already, it needs to be done yesterday. And that is filing an llc, which is a limited liability company. And what I want to make sure everybody understands is even if you're a freelancer or a contractor, you are a business owner. And I worked with so many people throughout the years where there is a misunderstanding and they think, oh, I'm just a freelancer, I'm a contractor, I'm just a 1099. I don't have a business that is actually a business. And you have to make sure that once you take that first step to being a business owner or a freelancer, a contract, whatever you want to call it, you have to make sure you are protecting yourself every step of the way. And step number one is filing that llc, which is a limited liability company. And the whole purpose of that is to make sure that you as an individual are protected from the debts of your company.
- [09:37]
So you say llc. Obviously there are a lot of different kinds of business entities and there's maybe some crossover here between, say A tax advisor, an attorney, and what people will say, but why an LLC and not, say, an llp, which I think is a partnership or even a corporation, a C corp with say, an S election. Why would an LLC be the optimal option here?
- [10:03]
So most of the time, as a small business owner, an LLC is the way to go because you get the same liability protection as a corporation, but there's less fees, there's less maintenance involved, and a lot of people want to say, oh, I have the S corp. Actually, you are either an LLC taxed as an S corp or you're a corporation taxed as an S corp. So you're not. An S corp is not a standalone entity. It's just the tax election. So usually if you are definitely if you're a single member, solo business owner, LLC is the way to go. My broad general advice as to when you should go the corporate route to have a full corporation, usually it's when you have investors, but if it's just you, maybe you have another partner or, or two. LLC is the way to go. An llp, there's a lot more tax considerations, there's more liability considerations, but for simplicity purposes, most of the time, an LLC is your best option. It's the best for simplicity purposes. It's the best for tax purposes. And when you initially create the llc, you're taxed the same way as a sole proprietorship, which means you're filing a Schedule C on your taxes. Once you're making enough money, that's when you make the S Corp election. Typically, I mean, you definitely want to chat with your tax advisor. I'm definitely not the tax pro here, but most of the time I'll hear, oh, somebody said I shouldn't file the LLC until I'm making a certain dollar amount. Or the LLC doesn't have any benefit until you're making a certain dollar amount. They're confusing it with the S Corp election. And that is correct in regards to the S Corp election. You cannot actually make the election until you are making a certain dollar amount because you can't get the benefits until you're making a certain dollar amount. But always, always, always, always, you want to protect yourself as an individual. And from day one, that's the llc.
- [12:09]
So you say protect yourselves. Let's talk about some of the risks. Let's say that I just heard you tell me I need to do this LLC thing, but it feels hard. I don't want to go to my state incorporation office or online to do it. I'm thinking I can get by for this first year, while I figure out if this is even something that I want to do, what are the risks, what might happen if I don't do this?
- [12:30]
Yeah. So the biggest risk is creating liability where somebody can come after you and your personal assets. And so ultimately that means anything that happens before you're an llc, you can be sued for personally, even if at the time of the lawsuit, you do have the llc. Because at the time of the act, whatever happens, and it's not anything you're doing maliciously, it's something you do on accident, which I'll cover some of those instances. But you want to protect yourself against all of those what ifs, those accidents that you're not sure of. We don't know every which way we could or could not be sued. We're in, we're in the U.S. we, we can be sued for any and everything.
- [13:16]
Kira Hug
Yeah.
- [13:18]
Andrea Sager
But it's just that simple added layer of protection. And if you're thinking, oh, I don't have assets, I don't have anything that they could even come after, I'll do this to protect myself later. Honestly, it's just a little bit of time and a little bit of an investment to protect yourself years down the road to protect yourself from thousands, potentially millions of dollars down the road. And the goal is to have assets. The whole purpose, we're trying to build our empire, our future. The goal is to have assets. So you never know when somebody's just sitting by waiting for you to acquire those assets. And then here comes the lawsuit. And of course, I am talking worst case scenario. Not everybody's going to get sued. Most people are not going to get sued. But don't be that person. Don't be that one person.
- [14:05]
So let's talk about some of these mistakes that we could make. Again, we're talking mostly to copywriters or content writers. Are we saying things like, you wrote a website for a client, the client decides that it didn't perform well enough that maybe they had a higher expectation, so they're going to come after you for, for performance issues? Or is it more like the risks of, say, you know, you were meeting together and somebody accuses you of some kind of harassment or something like that?
- [14:36]
Yeah, it can be all of the above. The most common issues that I see, number one, especially for a copywriter, would be not performing on the contract. So if you, maybe you leave something out or the work isn't as great as the company wanted or what they expected, we want to make sure we cover those bases. In the contract. But if they are not, and they could sue you, that's why you have the LLC to where they can only come after what the business has, they cannot come after you personally. So always you want to make sure you have backups in the contract to make sure that you know the, the work product is not to their satisfaction. Because that's always subjective. Making sure if you know, they ask for 20 revisions, you're getting compensated after a certain number of revisions. You know how to bake all that into your contracts. But it's just accounting for all those little things that you don't know what you don't know. And the other big one, especially for a copywriter, is copyright infringement. You know, plagiarism. Where is the line? How do you know if you're infringing on someone? Is it your original work or is it inspired by someone else? And copyright infringement is not always the easiest to say yes or no. It is infringement. And another big one right now is AI. Of course, you know, can we use AI? How you know, what are the parameters around that? We can get in that in a second. But when it comes to copyright infringement specifically, the legal test is substantial similarities. Substantial similarity. What, what is that? Nobody knows. The courts don't even know. So I always tell clients, and, and there's no such thing as changing it up 30% or 50%. I, whatever number somebody's thrown out there, no court has ever said that in America. So you want to be as original as possible. However, that being said, there are no original ideas. The laws were written in place to allow inspiration, to allow people to have the same ideas, because ideas actually cannot be protected. It's the expression of the ideas. So when you are trying to ensure that you're not infringing on someone else's copyright, be original, be as creative as possible. And if you can prove that, hey, I was original, I was creative, likely you're not infringing on anybody. But if you're copying someone, maybe you've changed like one or two words out of a 300 page document. That's probably infringement.
- [17:29]
Yeah, obviously that second example is pretty blatant. And most of us would say, yeah, that's plagiarism, you shouldn't be doing it. But, but it seems like the real risk here is having the same idea that somebody else has and expressing it.
- [17:45]
Kira Hug
In a similar way.
- [17:46]
Andrea Sager
Not necessarily knowing that that other person has also had the idea, but because they had it a year before or whatever, they find out about it. Now you've got A problem. You've written some copy for a client that is substantially like it, and you didn't intend to do anything wrong, you weren't plagiarizing. It just happens to be similar. Is that, is that track, right?
- [18:08]
Yeah. And where you want to make sure you are staying on track is the idea can be the same. So if you're writing how to do XYZ and somebody else has written how to do xyz, that's perfectly fine as long as your expression of that is different. It's in your own words. Because ideas themselves cannot be protected. It is the expression. So just think about it, okay? So they, they can have the same idea. I can have the same idea. But it's how we're expressing these ideas, that's what makes it not infringement.
- [18:44]
So if I'm trying to be clever and make my logo look like Coca Cola's logo, I'm gonna have a problem because I'm expressing it in a way to be funny, maybe or even in parody, but doing something, especially with a firm like Coca Cola, that is definitely going to want to protect their assets.
- [19:02]
Right. And, and not only may that trigger copyright infringement, that may also trigger trademark infringement. So really quickly, the difference between trademarks and copyrights, and because these are two of the most misused terms with entrepreneurs, trademarks protect your brand identity, your brand name, your logo, your slogan, a product name, any unique name within your business. It can probably be protected with a trademark. Copyrights are your content, your creative work, your photos, your videos, your blog posts, your website copy, your social captions. So the consistent creative work that's a copyright, usually like the one and done naming of things, that's a trademark.
- [19:44]
Okay, that makes sense. So I can imagine somebody thinking, well, this really won't be a problem for me because if the client gets upset, I'll just refund the project fee and no problem. What do you think about that?
- [19:57]
That could work. If the client is not getting in trouble for copyright infringement. And this is one thing you do want to make sure is covered in your contracts. Who's liable if there is copyright infringement? Because if the client says, hey, I want you to write on this topic, this project, I want this covered, I want this covered. And you're really just changing up a little bit of what the client's giving you, who's liable for that? The client's telling you what to do. You're really just following what the, what the client's saying. So you always want to make sure that your contracts are covering who is liable for copyright infringement in these cases. And another added layer of protection, of course, is insurance. Especially as a copywriter, you want to make sure you have IP insurance. If something happens, and you do, you, you are found in, you're in trouble for copyright infringement. And honestly, sometimes it just happens. Sometimes, you know, clients come to me, whether they're trademark infringement, copyright infringement. They come to me like, I did the work, I did, I did the searching, I thought I did my due diligence. And sometimes it's still infringement, unfortunately. So you just have to make sure as a business owner, you are taking the added layers of protection. So what, you know, can you just offer the client a refund? Potentially, yes. But if the client's actually getting sued for infringement, they may want more. If they're getting pursued for more, okay.
- [21:26]
So that's why we need the legal entity that will protect us. And then if we are being sued, you know, let's say we have the entity in place, we are being sued for something that happens. How does that protect us? What are the limits involved there? You know, again, you mentioned insurance, which you would hopefully have, that will cover losses if that happens. But, you know, what are, what are the protections that you actually get from having this entity. Entity in place?
- [21:52]
Now, when you have your LLC, and let's play this out. You, you have your llc, you, you get sued for copyright infringement. And it's a black and white case, yes, you did commit infringement, and now the company, or you're getting sued for $100,000. I am making this up $100,000 and the business only has 5,000 in assets. What happens likely if they are actually suing you, they've done their homework. They, they know there's something that they can get. And another, and if so, if your business only has the 5,000, they may try what's called piercing the corporate veil, which means you lose that LLC protection. Number One way to lose the LLC protection is commingling funds. So if you're getting paid for a project, you have that deposited into your personal account instead of your business account. So rule number one, when you have the llc, treat it like an actual separate entity. You have to have a separate business bank account, make sure all payments to the business are going into that business bank account. And you can also chat with an accountant around how to, how to actually pay yourself or how to actually ensure that you are maintaining the corporate structure as far as payments go. But if they are able to pierce that corporate veil, that's bad. That is very bad news for you as a business owner, because ultimately the LLC is useless, but a lot of times it doesn't go that far. So they're ultimately usually just going to be able to go after what the business owns. And if there really is only $5,000 in the business entity, that's all they can go after.
- [23:47]
So they can't go after your home or other assets. If you have been really solid about honoring the business entity, you've kept things separate, all of that is in place.
- [23:58]
Exactly, yes.
- [23:59]
So that's the number one reason we want to be doing this in the first place.
- [24:03]
Yes, exactly, exactly.
- [24:05]
Okay, so that's business entity. We kind of started like drifting into, you know, trademark protection and some of this other stuff. But let's, let's talk about trademarks. What can we trademark? What should we trademark? What should we just be thinking? Well, that's, you know, everybody talks about that, so I'm not going to touch that. How do we break that down?
- [24:27]
I always suggest starting with your brand name because that's, that's typically the business, the biggest business identifier that you have. And remember, trademarks are your brand identity. So trademarks equal branding. So you likely have multiple trademarks within your business. I can't tell you how many times a business owner comes to me and they say, oh, I want to file a trademark, but I don't think I have any trademarks. And, you know, we go through and we point out a number of trademarks. So you likely already have a number of trademarks that you can file. So if you're, you're listening to this, make a list of what you have. So think about your brand name, your logo, if you have a slogan that you use, if you have different offering names, maybe you have different packages. Those names can be protected with a trademark if they are unique names. If it's like platinum gold, like absolutely not. Those can't be trademarked. But if you have some unique name, as a copywriter, I can imagine if many of you have some clever, some clever phrases and terms in your business, and if those become synonymous with your business, if they become really identifiers for your business, that is something that you should be trademarking because that's how you grow your brand's value. That's how you grow your brand's recognition.
- [25:48]
And those become assets, obviously you can sell later if you do.
- [25:51]
Exactly, exactly. You can sell them. And not just that, but you can license them, you can get royalties. So a lot of people don't realize when, you know, we know passive income is just A buzzword thrown around everywhere online. But one of the true, only true passive income avenues is intellectual property through royalties and licensing fees. So IP is not just a business, a way you want to protect your business, but it can also create those additional revenue streams in your business.
- [26:24]
Okay, so your names, titles, that kind of stuff, we should be protecting it. What's the, what's the first step on that, other than identifying, okay, I want to protect my business name. What do we do in order to make that happen?
- [26:38]
Yeah, so you can, you can always spot, you can always diy. And I'm, I'm not the type of lawyer that's going to tell you, hey, you have to work with the lawyer to do this. You have to hire me to do this. Everything is figureoutable. You can DIY all the legal stuff, and it's not illegal if you don't do any of it. The whole purpose of what I'm talking about on this entire podcast is lowering your risk level as a business owner, as an entrepreneur. So in order to file the trademark, if that's something you want to do on your own, you can go to uspto.gov, which is the United States Patent and Trademark Office, and file your own trademark applications. You pay the filing fee. Right now, it's 350 and you file. And as of today, it is at least 14 months from the day you file to the day you're registered. And that's the bare minimum. If there are refusals, there's office actions, it could be a lot longer. If you work with an attorney such as myself, we do a search first, so the search is usually about a week or so. We scour the Internet, scour the trademark office to find out what else is out there and determine what your risk level is going into the application process. Because I'm not going to file something that I know is not going to get approved. That's why I'm rank number 22. I don't file just anything. So we do the search to make sure that you are pretty much getting approved. It's just a waiting game. And the thing that you have to understand about trademarks, it's not just the same name that's infringement. Trademark infringement is when likelihood of confusion is present. So the name or the mark, if it's a logo, the mark only has to be similar. It does not have to be the same. So it's the mark that has to be similar. And the goods and services also have to be similar. If both are similar, and there's an argument that consumers are likely to be confused as to who is who. That is trademark infringement. And that's what we need to avoid. So when you're, if you're doing your own search, of course you want to try and find the low hanging fruit, the same or, you know, whatever pops up in a Google search. But you really have to also try and look at, and search for phonetic similarities and adding a word like the or making something plural that is not going to relieve you of infringement. So it has to. Making any change has to relieve yourself of, you know, it can there be an argument here that somebody may purchase from me thinking that it's this other person. Because if that argument is likely, that is trademark infringement. So the search, that's really the most important part, especially when working with our team, because once we get through that search and we give you the green light, you can run with the name. You don't have to wait any longer to use the name. That's the search is your go ahead from us. And then we file and you know, handle all the steps of the trademark process. But starting the trademark process, just understand it's going to take well over a year.
- [29:52]
Kira Hug
Understood.
- [29:53]
Andrea Sager
And while we're talking about this, the difference between the circle R and the TM trademark mark and even SM service marks, when can you use the TM and when can you use the circle R?
- [30:10]
Yeah, so the TM or the sm that can be used honestly, at any time. That means you claim to have the exclusive right to use the mark. It does not mean you have the exclusive right. The R circle symbol, that is what you can use when you have the registration, not when you've submitted the application, but when you actually have made it through that whole process and you have your registration certificate, you can use the R circle. And that means you do have the exclusive right to use that name.
- [30:42]
My understanding, I'm not an attorney, don't play one on a podcast. My understanding is, and you were kind of touching on this, a trademark, say in one industry does not mean that you can't use those same words or ideas in another industry. So if I saw a really cool trademark, say used by my area hospital, you know, we save lives or whatever. And I thought, hey, I want to use that in my copywriting business. I save lives, there's a chance that that's allowable. Right. Because they are different industries, different uses, different. I mean, everything really is different but the words. I'm right about that.
- [31:20]
Yeah. Yes. And two brands can have the same exact name, the same exact mark. And it not be infringement because the goods and services are so different. So we all know Delta Airline and Delta, the kitchen sink faucet company, those coexist, they both have a federal trademark registration because it's not likely that somebody purchases an airline ticket thinking they're buying a kitchen sink faucet and vice versa. So brands can coexist with the same exact name.
- [31:49]
The danger here though would be, okay, I really like this Disney character that I. And I want to name a business after it. So, you know, the, let's call it the Snow White service. You know, in my business, I'm guessing that's going to run into some problems, even though we are in totally different industries.
- [32:09]
Potentially. Yes.
- [32:11]
Yeah.
- [32:11]
Kira Hug
Okay.
- [32:12]
Andrea Sager
Okay. So that's, I think, everything we need to know about trademarks.
- [32:16]
One more thing. So the power of a trademark, because I'll get a lot of pushback sometimes from people that say, oh, a trademark, it's not worth it because you have to sue to enforce it. And so unless you have a lot of money to sue, it's not worth it. But today it's a very different case. So 15 years ago, yes, absolutely, that was the case. But today everybody's online. And most clients that I work with, they're concerned with policing their brand, maintaining their brand online. Once you have a trademark registration, you don't have to sue. You don't have to send a cease and desist letter. You can submit a trademark takedown online wherever the infringement is. So if you have your brand and you get a trademark and you have your website and then there's somebody on Facebook that has this Facebook page that's the same or a similar name as your trademark and they're in print, it's infringement. You can go to Facebook or Meta and submit a trademark takedown, submit all the information and usually it'll be removed within a couple of days. And you can do that on your own. You do not have to have a lawyer do that for you. That is the power of a trademark. We do that constantly for clients. You can do it on Instagram, TikTok, you can. On every, pretty much every website, you can submit these takedown forms. And that's the power of a trademark registration. Because as we'll get into copyrights, you'll learn that you can do this at any time for copyrights, but for trademarks, you have to have the registration. So you want to have that registration as soon as possible in order to be able to enforce it and police it online.
- [33:54]
And you have to have the circle R to be able to do that, not the tm, Right?
- [33:58]
Correct. And you don't have to use the circle R, you just have to have that registration. So, absolutely. I always suggest using the circle R, but it's not a requirement. But once you have that registration, you can start submitting those takedowns online.
- [34:12]
Okay, so let's talk a little bit about copyrights. This should be something that copywriters know about, because everybody in the world thinks that, you know, when you say, I'm a copywriter, that we're attorneys doing, you know, copyright work. So what are some of the differences and what do we need to do differently to protect our copyright to our content?
- [34:32]
Yeah. So copyrights, remember, this is your content, your creative work. The cool thing about copyrights, you automatically have protection the moment the work is created. So you write this 500, 500 word something, and the moment you finish it, as long as it's unique and creative, you have a federal copyright to it. You don't have to submit an application. You automatically have federal copyright protection. The moment you snap a photo on your phone, you automatically have federal copyright protection. There are benefits to getting the registration, however, it's not necessary. Copyrights are automatic. And there's no. I think they used to call it like a poor man's copyright, where you'd mail it or something like that.
- [35:17]
Yeah. You don't open the envelope and.
- [35:19]
Yeah, yeah, because I think there used to be, like, people would think there was a publish publishing requirement, which meant sending it, but it's automatic. So snap a photo, record a video, it's automatic, which is really cool because, like I said, policing your work online. If you post a photo to Instagram and somebody else posts it as their own photo to Facebook or wherever, or they take your blog post and they post it as their blog post, you can immediately submit that copyright takedown and it'll be taken down within a couple of days because that is copyright infringement.
- [35:55]
So where does fair use come in with this? And the reason I ask is a lot of copywriters have swipe files where, you know, maybe we've collected five or six examples of a guarantee statement. We think, hey, this is really good, and we swipe it. We drop it into a sales page maybe for our own business, so it's not risking it for a client. But, you know, there are only so many ways to word a guarantee, you know, so how does fair use play in all of this? And when are we stepping beyond fair use?
- [36:25]
Yeah, so fair use. I. Let me preface this by saying Fair use is actually a very, very tough hurdle to fall into. And I would never tell somebody like, hey, meet these requirements and you qualify for fair use. You always want to chat with a lawyer before trying to claim fair use. And the thing about fair use is you can still be sued for copyright infringement. Fair use is only a defense to copyright infringement. So there's a, people always will try to use fair use in the wrong way. So just first things first, understand that it is very hard to fall into fair use. But about the actual like guarantee statements or refund policies, those likely may not even qualify for copyright protection because the copyright office specifically says short quotes are not protected. What's a short quote?
- [37:26]
Yeah, that was my next question. What does that even mean, short quote?
- [37:30]
Nobody knows. So nobody knows. But I mean for me as a copyright attorney, I just have to see it. And there's no, like, if it's this many words, it's a short quote. If it's this many, it's a long, it's a longer quote. There's, there is a court case, I think it was around 150 words. That starts to be a safe harbor for, for more than 150. That, that does start to qualify as a longer quote. However, it's, it's not a slam dunk either way, whether it is or isn't. But when it comes to those policies, there's really no unique words there anymore. So unless somebody can prove like, hey, this is so unique to me because, you know, here's my proof that I wrote it this way five years ago and here's all these unique words that nobody else has ever used before. Likely it's, everybody's using the same version somehow. So I wouldn't definitely no fair use there. But it's just something that's common, just common to use and doesn't qualify for copyright protection.
- [38:48]
Anything else we need to be thinking about when it comes to copyright copyright protection?
- [38:53]
When to get the registration. So remember, you don't need the registration to have copyright rights. However, if you have the registration before somebody infringes or if you submit the application within three months of publishing the work, you're eligible for statutory damages. Statutory damages. Long story short, it just makes it easier for you to prove your case in court or easier to prove the damages in court and the other party may have to pay your attorney fees if you have to sue for copyright infringement. The reason why that's important is because it's actually pretty hard to quantify damages in copyright cases. Let's Say you post the, and this is an easy example. You post this video on TikTok and you know, you get some views, whatever, and then somebody else posts this video on TikTok and they go viral and they make millions of dollars because the, your video went viral for them. You're gonna think, oh, I'm, I'm damaged millions of dollars. But you're actually not damaged. It may actually have made you more money if they found out who the original creator was. So just because somebody made millions off of your work, it doesn't mean you were damaged that much. So it's, it really is hard to prove damages in copyright cases. So it having the statutory damages eligibility, it's a big bargaining chip when pursuing someone for copyright infringement.
- [40:29]
Okay, makes sense. Let's talk about contracts. Obviously we've got our entity set up now, we've got our trademarks, but we're going to be working with clients on a pretty regular basis or we may have partners or affiliates or we may be working, you know, being an affiliate for other people. What do we need to know about contracts and have in place so that we're protected there?
- [40:49]
Rule number one is don't be afraid to use them. Never be afraid to use a contract. I hear from small businesses all the time, oh, it's just a handshake deal. I don't want to use it. Want them to think I'm trying to pull one over. No, we are business owners, we use contracts. Now what contracts you need will depend on what you're doing. But anytime money or value is changing hands, you need a contract. So on your website, you always want your privacy policy in terms of use. Hands down, you need those every website now for an affiliate agreement, there's so many situations to account for. You know, how often do you get paid? What if there are refunds? What if, you know, somebody files a charge back, not even a refund. So there's a lot of situations to account for in affiliate agreements. And my, and regardless of it, if it's an affiliate agreement or whatever kind of contract, if you're a newer business owner, don't be intimidated by the contracts you may need. I'm hugely a fan of starting with contract templates because as a newer business owner, you likely don't know what you want or don't want in your contracts. So if you go work one on one with a lawyer, they're going to just give you best practices and likely it's their template, but you're going to pay them thousands of dollars for their template. So I would say starting with attorney drafted contract templates, usually the best way to go. As you gain experience in business, you'll learn what you like, what you don't like. You may have some mistakes, you'll learn from things, but you'll know when the time is right to then graduate. I call it graduating to a custom contract. And then, and I always tell clients, make notes of, you know what you like or don't like in your current contracts and then you'll know when the time is right to go work one on one with a lawyer and to make sure that everything you want to be accounted for is in those contracts. So number one thing in your service agreements. So as you're providing these services to clients, the most underrated provision is intellectual property. In my opinion, that's always the most important. Who owns the work. And the client is always going to think, oh, I'm paying you for this, I own the work. But actually the default law says the contractor owns the work. Unless you're an employee and you're creating intellectual property for your employer, the employer owns that IP that the employee creates. But if you're a contractor, by default law, you own the ip. And if the client wants to own it, I always tell I, especially in this situation, if it's a copywriter or photographer, charge more if the client wants to actually own the intellectual property. Because if they want to own it, you may not even be able to sample from it. You may not be able to use it a different version for different projects. You may not even be able to use it for your portfolio. So and another thing, there is just under, maybe explaining to the client like, hey, you're free to use this. You have this license to use this for xyz, but I own it. And that's ultimately the best situation most of the time for contractors is you own the ip, you're giving a license, which is permission to use to the client.
- [44:17]
It seems really useful if you're working with a lot of clients in the same niche, say in different demographic areas or different cities, that kind of thing. So if I'm working for say tennis clubs and I've written some copy for a sales page for tennis lessons that I can relicense out to tennis clubs, say in San Diego or in New Orleans or Miami, they're not competing with each other, so they probably don't really have a problem with that. But I get to keep the ownership and actually turn my copy into something that's more valuable than a one time sale.
- [44:53]
Exactly. It's licensing Your intellectual property.
- [44:58]
So let's say a client wants to own it. Obviously we can write in some exceptions to that as well. That preserves our right to use it for advertising purposes or portfolio purposes, whatever. What other kinds of exceptions to that rule should we be thinking of if we are giving the client the rights to the work that we do?
- [45:20]
So what I tell clients is to have your base rate. And this may be this. I don't know how. For those of you listening, I don't know how you think about your rates right now, but what I tell clients is have your base rate and have it include xyz. Like, hey, you can use it for ABC up to, you know, people can view it up to 2,000 times. And if they want to have it to where 10,000 people can view it. So then you have the rate times five. Then if they want it to be in print publications, if they have it. So this is a big one for photographers where they get. They'll get brand photos and the photographer tells them, like, yeah, you can use this on your website. And then they get interviewed for Forbes. And the photos in Forbes, well, the, the client thinks like, oh, I'm just going to give them that photo. No, you have to actually go back to the photographer and get a bigger license because a lot more eyes are on that photo. So same thing when you're thinking about your copywriting, how many eyes are going to be on it? And that's what you want to think about when charging your rates, is how many eyes. And you may want to have a virality clause if, depending on what the work is being used for, if it has the potential of going viral and being more successful, hey, here's my bonus if this does go viral.
- [46:43]
Makes sense. What other kinds of contract stipulations should we be thinking about? Earlier we were talking about the liability that we might have. And so I'm thinking some kind of an indemnification clause is really important to make sure that we limit that amount of liability.
- [47:01]
Kira Hug
What else?
- [47:02]
Andrea Sager
Yes, yes. So, and that's going to come back to how much creative control do you have versus the client? Because if the client is basically saying, hey, I want xyz, just, you know, add some more words here. The client's really telling you what to do. You don't want to be liable if it is infringement. So you definitely want to be indemnified in that situation. If you're, if they're saying, hey, I want, you know, this big project, you just do your thing, write it all, do whatever you have A lot of the creative control. So if it is infringement, likely the client is not going to want to indemnify you. So indemnification means that the client, the party hiring you, they will step into your shoes or they will take liability. If there is infringement issues, the client, sometimes they understand that, sometimes they don't. So if they push back, it may be a negotiating point for compensation. And it's also a, a big consideration for your insurance. If you are or are not going to be indemnified. Do you need different insurance for this project? So just, just a lot of different things to think about when it comes to liability. Who's responsible, you know, if, is there a limit to the response, the responsibility you may have? So thinking about indemnification, the limitation of the liability, all of those need to be baked in into the contract. And they all, all of those considerations should affect the compensation that you receive along with that.
- [48:37]
Probably very similar idea. But if you are writing for the client and you don't have the resources to do, say, you know, a check to make sure that it's 100% original, you, you're obviously we're writing something that's original, we're doing our best, but we maybe can't check that. Specifying in a contract that it is the client's responsibility for, you know, any kind of legal checks, that kind of a thing would be another, at least in my head. Seems like a really smart move.
- [49:04]
Yes, exactly.
- [49:06]
Okay, so that's entity we've talked about, trademarks, copyright contracts, what else? What other legal hurdles are there out there that we're just not thinking about or seeing now?
- [49:21]
So those are the main three. For every single business, no matter what stage of business you're in, there likely will come up other things if, depending on what kind of trouble you get yourself in. But once you have those three covered, you're pretty solid. You're pretty solid unless you're doing something malicious, fraudulent, not something that I want to cover. But when you have those three set up in your business, that's going to take you a long way of being protected and it's not something you want to put on the back burner. Once you tackle these things up front, you're going to be set for a long time. You're, it's going to take you a long way. Make the investment, the time and monetary investment up front to ensure all of these are set up properly. And that's what's going to save you a lot more money in the long run.
- [50:09]
I, we've all seen, you know, all the TV shows or whatever when something happens and somebody says, well talk to my lawyer, right? Or call my lawyer. Most of us don't have a lawyer to call or you know, here's my lawyer's card, call them, that kind of thing. At what point does it make sense to actually have a lawyer as opposed to using a site like the LegalPreneur or you know, contract Shop or something like that? You know, when should we have that one to one relationship with an attorney?
- [50:41]
I think it's actually an internal feeling. I when you're feeling uncomfortable, like, oh, I feel like maybe I should have somebody that can go to and talk to. And especially if you have a lot, lot of questions that come up here and there. A lot of lawyers, especially similar to me that have a smaller practice, we have a pretty affordable one to one rate on a monthly basis. So a subscription model, a membership model and I would find a lawyer that you really resonate with, you work well with and be on that subscription model because like for us it's very low cost and you get all access to your own attorney every month and all your questions are answered. All that, the llc, the contracts, the intellectual property, all that's taken care of. So there is the DIY route, but also just for a little bit more of an investment, you can have that one on one attorney relationship to not. And it's not just about, hey, this issue's coming up, that issue's coming up. But it's also can be, hey, how do I negotiate this? Hey, how do I fight for this rate? How can I negotiate this in the contract? So don't think it's always for when issues come up. But it's also, lawyers should be helping you negotiate your contracts.
- [51:56]
That makes sense. This has been really fascinating discussion, as fascinating I suppose as legal discussion can be. But obviously this is important stuff to cover and take care of. And it's the kind of stuff that I think we tend to leave and just kind of ignore until there's a problem, in which case it might be too late.
- [52:20]
Yeah, exactly.
- [52:22]
Let's talk about AI Last topic for today. You mentioned it earlier. What are the risks there? You know, a lot of writers are using it now not just for ideas, but to actually write deliverable copy. We've all heard that AI can't be copyrighted because of the source material. But what are the risks and what should we be aware of so that, yeah, we don't get into trouble say two years from now because of what we're doing today.
- [52:48]
Yeah. So, and keep in mind there's, as the years come up, there's going to be a lot more to say in the legal space around AI. But as of right now, anything created from AI is not protected because there's no human component. It has to be created by a computer, by a human, in order to be protected with a copyright. However, even if you use something created by AI, not just getting ideas, but actually like, hey, you know, chat, write me this and blah, blah, blah, blah, and they spit it out and you use that, even though you cannot protect that with a copyright, it doesn't mean it's not infringing on somebody else's work because all of that is being sourced from the Internet. And so somebody did actually come up with that or something very similar. So you're still running the risk of infringing on somebody else's copyright if you use exactly what comes out of chat or whatever AI you're using.
- [53:46]
So I suppose this goes back to something you mentioned earlier, but what if I change it up 20%?
- [53:53]
Well, then even if you change it up 20%, how do you know you're not still matching somebody else's original work even more?
- [54:00]
Again, these are really good questions. I mean, who knows, who knows what's going on with it? I don't suppose that a lot of copywriters are going to stop using AI because of the risks. I think a lot of people probably perceive this as a really general risk and everybody is stepping into it together. But on the other hand, you know, there are, there are some litigious companies or groups that are out there that are looking for opportunities to step in. And so, yeah, maybe you're not worried about it because you don't own your house, but if you do own your house, you don't have an entity set up and you, you step into something like this, it could be really costly. So it's definitely something we should be aware of.
- [54:40]
Yeah, I personally love AI for ideas. I use it all the time for ideas, but I absolutely do not have it spit out any, even a full product for me. I just get the ideas and drum up my own product. So that's my suggestion on how you should be using AI. I know that that is not what everybody does, though.
- [55:05]
Yeah, I teach a college class and it's eye opening what kids are doing with AI today. I think it's just going to get worse and wor.
- [55:13]
Can only imagine.
- [55:14]
Exactly. Thanks, Andrea. This has been great. I really appreciate your time, your expertise. If somebody wants to follow you or check out some of the contracts, the resources that you have. Where should they go?
- [55:24]
Yeah, the legalpreneur.com you can find all of our resources there. Andreasager.com is the law firm and you can get started with your trademark there. You can follow along on Instagram at Andrea Sager Law and then Instagram and TikTok at the legalpreneur.
- [55:40]
Perfect. Thank you. Thank you Andrea for the legal education that I delayed a couple of decades ago. Andrea's advice about lowering your risk is good.
- [55:57]
Kira Hug
Whether you're thinking about trademarking a framework or your business name, or you simply want to have a contract in place to ensure that your clients and you are on the same page, this stuff is important and while I'm not trying to scare anyone, the risks are real. So it may be worth the time and effort to talk with an attorney like Andrea. I've included links to her site in the show notes. What's more, if you need a legal agreement to use with your clients, there's a good one inside the Ecopywriter underground, which you can join at TheCopywriterClub.com forward/TCU, which you'll save on creating or paying an attorney to create an agreement for you will pay for the first month or two of the Underground for you. So it's a good resource to have. And I should just mention again, you can get all of my research secrets@thecopywriterclub.com researchmastery that's the end of this episode of the Copywriter Club Podcast. If you like what you've heard, please share it with someone that you know. Simply copy the link from Spotify or Apple Podcasts or your own podcast player and drop it into a short email and let your friend know that you're thinking of them as you're listening to the Copywriter Club podcast. I promise your friends will thank you and if you can't do that, simply leave a comment or a review wherever it is that you listen to podcasts. That helps me tremendously and I really appreciate it. I will see you next week.
- [57:23]
Unknown
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