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When to Slap-On a ©, ™, or ® To Your Work? – Pt 1

You see them everywhere, but why do people use them and what do they mean?

The © , as many of you may already know, signifies a copyright. You’ll want to use a copyright to protect something you create and “fix in a specific medium”.

Plain English, Please!

OK, let’s say you are suddenly inspired to start humming a great new tune you just made up.  Not copyrightable.  Suppose you’re at an open-mic night, stand-up and deliver an inspiring spoken word performance that brings the whole audience to their feet.  Not copyrightable either.  But let’s say your friend takes out her iPhone and records your new catchy tune.  Bingo!  That recording can be copyrighted because now it’s “fixed” in a specific medium.  Suppose before taking the stage you scribbled-out your spoken word piece on a cocktail napkin.  Now those words are copyrightable too.  And what if you later type-out those scribbles?  Still copyrightable because it’s the work itself, that’s protectable, not the medium.  Your tune, your words, your design, etc. are the work.  And the work can be protected regardless of whether it’s “fixed” to a napkin, a computer hard drive, a canvass, the side of a building, etc.

The creator doesn’t need to have his or her copyright registered with the Library of Congress in order to use that symbol or to prevent others from using his or her work without permission.  Using the © symbol in conjunction with the owner’s name and date, simply puts people on notice that the work is protected.

So why bother to actually register the copyright?  In a word: MONEY.

By registering your copyright you will be entitled to statutory damages if you prove that someone has violated your copyright.  You will also be entitled to attorneys fees, which in many cases makes the difference between whether or not a creator is going to seek to enforce their rights or not if someone does infringe on their work.  By registering your copyright you also demonstrate to any potential buyer, licensees, joint-venture partners, etc. that you take your work and yourself seriously.  It’s a “nice” way to say without saying it that you expect to get paid for your work, and that there will be consequences if they infringe on your rights.

So, when to slap-on a © to your work? The answer is, whenever you want to let the world know it really is YOUR work.

When to take the next step and actually register your ©?  That depends whether you care or how much you care if the world respects the fact that it’s your work.

Email me at shreya@layroots.com to find out if you are ready to slap that symbol on your work (We can send you a checklist!) AND you can also get access to other exclusive & awesome information – like more checklists.

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What Should Be in Heavy Rotation at LayRoots?

Sheeeeesh, guys.  I’m late this month…right week, wrong day (in case you hadn’t picked up on it, I usually post on Tuesdays).  BUT you get double your pleasure this month – TWO blog posts per week.

I’m writing a series of posts about when to use those copyright and trademark symbols you see around.  Check them out every Thursday.

BOOKS  

Y’all.  We’ve lost some steam with the reading.  We’re still reading the same things as we were last month.  The positive – we’ve been working ON our business and IN our business.  All the reading and learning has helped us to identify areas where we could do better, so we have started using Basecamp to track and communicate about projects in conjunction with our law firm practice management software – Clio.  We can now offer our clients secure portals to access documents and we are on our way to systematizing things – meaning more efficient, predictable, faster service.

Okay, that was a bit of a detour.  However, if you have books that you would recommend we read next – we’d love to hear it!

MUSIC

After SXSW – which was very educational (Basecamp usage is a result of a panel attended by Shreya at SXSW) – we have been digging Kendrick Lamar, Mac Miller, Vance Joy, the Dum Dum Girls, the Steeldrivers, St. Paul & the Broken Bones, annnnnd about 65 other bands.

Not all of the new music we’re listening to was featured at SXSW…but it came to our attention through the whole experience.

Did you go to SXSW?  Who was your favorite act?

MISC

I, Shreya, love to cook.  In preparation for summer and bathing suit season, I think we should all eat more.  I usually frequent these recipe blogs for ideas:

101 Cookbooks

Smitten Kitchen

I hadn’t done much cooking or perusing since starting this business, but I’m getting back into it.

Also, our business coach, RJon Robins, may be coming to a city near you (CLE Tour).  New dates and cities are being added all the time, so don’t despair if you don’t see your city on there.  If you’re an attorney starting your own practice or you have been practicing alone for awhile now, check him out!  He’s helped us out a ton…feel free to email us and ask us about our experience.

Do you have any suggestions for us?  What should we put on our music and book list?

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How Do I Make Money Off My Idea? – Pt 2

One of the first, most daunting tasks that I had to tackle was writing a Business Case.  I am not an MBA and have never taken a business class in my life.  However, when I worked at the IP Portfolio Management start-up, we talked about a lot of business-y things and it turns out some of those business-y things were parts and pieces of business cases.

Some people say that business cases/plans are a waste of time.  Others will tell you that they are essential (just do a Google search).

Why did I do them?

I have found, as a lawyer helping business owners, that the whole business case process is a great exercise for most business owners – especially if you are a newbie business owner.  It shows potential investors (which, as a Lawyer-Human – I think of myself as an “investor” in your business in many ways because…well, even though you’re paying me, I’m investing my time in helping you with your business) that you have actually given your business some thought and it’s not simply a whim.  Should you spend months writing up a detailed business case?  Probably not.  Unless you are entering some sort of business case competition, of course.

What that dude in the article said – it’s probably true – no worthwhile adventure follows a plan and there’s no substitute for doing.  However, there’s a difference between veering off the path because there’s a fallen tree on the trail and wandering lost through the forest with no idea where you’ve come from and where you’re headed to.  My business case had a cursory sketch of a plan.  However, the main purpose was to answer these questions:

  1. What space in the marketplace does my idea fill?

  2. What similar things exist?

  3. How is my idea better and/or different?

  4. What are all the different ways that I can make money off of this idea?

  5. How much money could be made?

  6. What could go wrong?

  7. How do I plan to get rid of the idea/Who will take it off of my hands?

I told the story of my idea clearly and CONCISELY (with real numbers and references to where I got those numbers).  With tables and graphs, my business case was under 10 pages. Then, as I started talking to real people about what I was selling, I got new ideas and found that there were areas that my numbers weren’t 100% accurate.  You know what I did with that information?  I made a note of it somewhere and did not bother trying to rework my business case.

Why?

I’m not entering a business case competition.  I’m trying to help my client make some money off of his idea.  If it turns out that we need to send a business case to some venture capitalists in order to get an investment?  I’ll spend a day or so prettying it up at that point.  For now, I’m going to keep talking to as many people in the market as possible.  The business case helped me to define who I want to talk to and what I would want to talk to them about – which I will talk about that process (how to get meetings and who to get meetings with) in the next post.

Hopefully this was helpful.  If you’re still feeling rather clueless about the whole thing – I don’t blame you.  I stared at my computer screen for about a week typing business-y sounding words and then deleting them.  I finally just sat down and made myself put something together.  It took me about a week and once I stopped trying to sound smart, it came together pretty well.

As Chuck Close said, “The advice I like to give young artists, or really anybody who’ll listen to me, is not to wait around for inspiration. Inspiration is for amateurs; the rest of us just show up and get to work…”

To help you get to work, we have some pretty awesome resources for people just starting out – shoot me an email at shreya@layroots.com and we’ll send you our “business resource” sheet.  If I had had those resources 3 months ago when I was going through this, I probably would have had a much easier time.

Please remember that this is just a documentation of my own journey.  There are different ways to do things and nothing in here is legal OR business advice.  If you think you have a better way – I’m always open to ideas.  

I want to add that I don’t plan on this being patent-centric.  Look at the NFL – they make tons of money off of licensing trademarks/brands.  Intellectual property is not just limited to patents – but includes trademarks, trade secrets, and copyrights.  For copyrights, think of sampling older songs – sampling can be a form a licensing.

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Are you violating CAN SPAM?

When it comes to federal laws…I think I see a lotta lawbreakers up in this house.

You. Me. We’re all lawbreakers whether we know it or not. That’s because the feds have written so many laws, they don’t know how many actually exist. Seriously…in the right context, buying lobster at the grocery store could violate the Lacey Act. (entertaining YouTube video about it here)

One federal law coaching business owners (and anybody sending emails) should know about is the FTC’s CAN-SPAM Act. It stands for Controlling the Assault of Non-Solicited Pornography and Marketing. The law regulates how businesses send emails to people and features fines of up to $16,000 PER email for violations. 1,000 people on your list = $16,000,000 for one email blast.

Here are the basics if you are sending commercial messages

  • Commercial messages are email messages primarily meant to advertise or promote a commercial product or service.
  • They’re not just talking bulk emails sent to your list. One email to one recipient is subject to the law.

To comply with CAN-SPAM, Uncle Sam tells you to:

  • not use false or misleading header information. Basically you should accurately identify yourself or your business.
  • not use deceptive subject lines. Make sure it matches the content of the message.
  • identify the message as an ad. Tell recipients you’re advertising! (More about this later)
  • tell recipients where you’re located. This is where your business is or where you get your mail.
  • tell recipients how to opt out of receiving future email from you. Let people know how to stop getting messages from you.
  • honor opt-out requests promptly. Take people off your list within 10 business days.
  • monitor what others are doing on your behalf. Just because you didn’t hit send personally doesn’t take away your responsibility to follow the law.

The good news is if you use an email campaign manager like MailChimp, Aweber, ConstantContact, etc., they help you comply with the requirements under the law.

Opt-In & “This is an ad”

CAN-SPAM has no “opt-in” or “double opt-in” requirements. You can send an email to anybody you like, but you probably know you can piss people off with unsolicited email.

If, however, somebody HAS opted-in to your list, you don’t have to identify your message as an ad. You can sell or promote any product or service you like without telling the message recipient that you are making a pitch.

This is how I most frequently see the FTC CAN-SPAM Act violated. I meet a coaching business owner, we exchange cards, and suddenly I am on their list without permission. This doesn’t bother me (and it’s not illegal) since I enjoy seeing what people are sending out. If somebody is sending out too much stuff, or crappy stuff, then it’s no big deal to opt-out.

What I see though is when I am added to a list without my consent, I start to get offers, or offers within newsletters, for somebody’s service (Mastermind, VIP day, coaching program, etc.). These messages do not include a notice of advertisement and that is what makes them violate the CAN-SPAM Act. Personally I don’t care, but the FTC might care. Get caught doing this and you could face those hefty fines.

So what’s the point?

If you are sending out emails to people who have not opted-in to your list (either on the web, in writing, or verbally) don’t send out emails that are promoting your products or service. If you are going to send emails with these promotions, put some wording in your message that makes it clear you are advertising or promoting your service. That (in addition to the previously mentioned requirements) should keep you safe in regards to the CAN-SPAM Act.

Clear as mud? If you have any questions about the CAN-SPAM Act and your email activities, shoot me an email (colin@layroots.com) or call us at (206) 219-9559.

 

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Whose Website is It Anyway?

For many businesses, the way that you feel “legit” and announce your debut, is to put up a website.  Most folks buy a domain name and find a website developer.  Well, before bringing a website developer on board, it is a very good idea to negotiate and write up a website development agreement.  On the other hand, it is NOT a very good idea to hire a website developer (or designer, or writer) on a handshake, friendship, verbal understanding OR EVEN by simply slapping the words “WORK MADE FOR HIRE” across the top of whatever contract you downloaded off of the internet or “borrowed” from a friend.

Why is that not acceptable?  Because 17 USC §201(a) creates a presumption that intellectual property created by a third-party belongs to the creator and NOT TO YOU.   Repeat, the law does not presume you own the intellectual property you pay to have created for your use, just because you paid for it.  The law presumes you do NOT own the designs, the copy, the layout, or any of the other intellectual property you own UNLESS you have a written agreement that gives you those ownership rights.

Why does this matter to you?  Most business owners don’t want to pay to have your website created and then ALSO pay a royalty to the developer for as long as they are using their own website.

What to do? Get it in writing.  Your website development agreement must contain detailed provisions on ownership of the finished website and all underlying work product.  Also, website development shouldn’t be an open-ended process. Attach a “Statement of Work” that describes how the website will look and what it will do.  Most business owners know about “scope creep” – and this can be an issue for the developer as well as the business owner. A good lawyer will be sure to account for what happens if the project extends beyond the originally intended scope.

Of course every business lawyer should know that a website development agreement should be in writing and clearly identify who will do what by when for how much and who will own what.

1. the responsibilities of each party,

2. when items must be delivered or services performed,

3. how much development will cost and when payments are due, and

4. who will own the materials developed under the agreement.

But not every business lawyer should be expected to know…not unless he or she regularly deals with these issues…that your website development agreement should also include that “Statement of Work” (SOW) mentioned above as an attachment so that it can be amended and updated as changes are needed.  The SOW should contain a detailed description of how the website will look and how it will function. The parties should include drawings, diagrams, images—anything to more clearly define the desired end product.  This will not only make you happier but it should also help the website developer as well.

So while it is true that the “conventional wisdom” is that if you contract a creative person for a “Work for Hire,” you will implicitly own the resulting work, this isn’t always the case.  And if you plan to build your business on your ideas and intellectual property, you don’t want to leave open the possibility that someone else could own it.