TCC Podcast #72: Answers to your legal questions with Danielle Liss

Got legal questions? We do! So we invited attorney and online legal expert Danielle Liss to join us for the 72nd episode of The Copywriter Club Podcast. We’ve had this episode penciled in on our list for a long time—partly because we know so many copywriters have big questions about legal issues (and often don’t have the cash to ask an attorney for help). Hopefully this podcast answers a few of those questions. We talked to Danielle about:

•  how she went from working in construction law to helping online entrepreneurs with legal needs
•  the legal documents all copywriters need to have in place (her checklist)
•  what you need to know about choosing a business entity (in the U.S.)
•  the critical reason you want to choose an entity besides sole proprietor
•  what you need to know about contracts and why you should ALWAYS use them
•  what every contract you sign MUST have
•  should you include your contract with your proposal or keep them separate?
•  what could happen if you work without a contract (the nightmare scenario)
•  what you should do contract-wise on a second or third project with a client (think MSA)
•  why you probably don’t need to worry about changes to your contract
•  the three things you need to include in your website terms and conditions

We also talked about what you should expect to pay for legal help and Danielle gave us the lowdown on copyrights—yes, copyright, not copywrite ; ) . She also gives a bit of counsel about when you can use ™, ®, or a service mark, and how to handle conflicts and breaches of contracts. This episode is loaded with need-to-know information that will help you protect your copywriting business. Click the play button below, or scroll down for a full transcript.

The people and stuff we mentioned on the show:

Sponsor: TCC IRL

Dubsado
FitFluencial
LegalZoom
USPTO website
Hashtag-legal.com
Kira’s website
Rob’s website
The Copywriter Club Facebook Group
Intro: Content (for now)
Outro: Gravity

Full Transcript:

Danielle Liss Attorney

Kira:What if you could hang out with seriously talented copywriters, ask them about their successes and failures, their work processes and their habits, then steal an idea or two to inspire your own work? That’s what Rob and I do every week at The Copywriter Club podcast.

Rob: You’re invited to join the Club for episode 72 as we chat with attorney, marketing expert, and co-founder of Hashtag Legal, Danielle Liss, about what copywriters need to know when it comes to the law, choosing the right business entity, documents we need to protect ourselves, and avoiding the common mistakes online business owners make again and again.

Kira: Welcome, Danielle!

Rob: Hey Danielle.

Danielle: Thank you so much for having me, I’m really excited to be here.

Kira: Yeah, we’re excited to have you, and, we—we just need this conversation desperately! Even as I’m listening to the intro, I’m like, I need to know all of this! So, I’m really looking forward to it.

Rob: It’s funny that it’s taken this long to get here too…

Kira: I know!

Rob: …because when we first started the podcast, we made a list of everybody we wanted to talk to, and one of the line items was an attorney. We wanted to talk to an attorney, and yeah. Now we’re seventy-two episodes in…

Kira: Right!

Rob: So it’s about time.

Danielle: Well I am very glad to be the one to talk with everybody.

Kira: Yes, great. So why don’t we start with your story, and I’m really curious how you ended up working in influencer marketing and ultimately creating Hashtag Legal.

Danielle: Absolutely. When I graduated from law school, I went into litigation. And I live in Las Vegas, and I did a lot of construction law. Let’s just say that’s not exactly how my brain works. So, it was never a great fit because I just didn’t have the passion that I needed to spend all day fighting about drywall. And…

Kira: Laughs.

Danielle: And there are people who do; I love them for it, but it was not me. So I also started a blog in law school, and, I always had this sort of duel-life; I have my internet life where I was blogging all the time, and I had my work life, which just seemed, you know—get the joy from the blogging because I can’t get the joy from the litigation career that I have. And it turned into a speaking opportunity, because a friend of mine came to me when sponsored content was really in its infancy and said, “Can you read this contract for me?” I said “Of course,” and I read it, and it was horrible. And I said, “Oh my gosh, please don’t sign this!” She was like “You know you, you could probably speak at conferences and tell people about this type of thing”, and I said, “Really? People care about that?” and she said “Yeah!”

And so a speaking career was born, but it still didn’t kind of work with the kind of work that i was doing and I wasn’t sure how to build a practice out of it at that stage. So because of my blogging background and because of the fact that I was doing a lot of speaking on influencer marketing, I ended up leaving and joining Fitfluencer, which was a influencer network focusing on health and wellness campaigns. I went in as chief marketing officer and general counsel, and stayed there for about four years. I left after I had my son because it was—it was a job that was really 24/7, and I wanted to have more time to spend and I had almost met my now-business partner. So, we had realized there is just this sort of gap in our industry where people….I don’t want to say they don’t think that legal is sexy, because I of course think legal is very sexy, but people don’t want to deal with that side of their business so I partner and I said there’s a whole here, let’s see if we can fill and start to make legal a bit more accessible to people in the influencer space and in that, sort of, online business world.

Rob: So before we jump into all of the ways that you help clients, tell us a little bit more about who you’re typical client is, and who would come to you for help.

Danielle: “Our typical client” really covers a broad range. We deal with people who are just starting their businesses and it may be a side-hustle that’s now grown to something that can be full-time and we kind of come in with them at the very early stages and watch them as they grow their business which is something I love to be able to be apart of as they’re scaling, but we also deal with a lot of folks who are more established businesses. The one thing that most have in common is they are in the online space and some way, whether their business is conducted entirely online, or whether they do most of their marketing online, if they’re an influencer—that type of thing—that’s usually the key thing that everybody has in common.

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Kira: Okay, so I want to hear about what we need to have when we’re getting started, especially what are some contracts or just basics that we’re missing—that you’ve noticed a lot of us are missing?

Danielle: Sure. I think that as you’re setting up your business, there’s usually a few areas I tell people these are the things, kind of—use it as your check list to see if you have these in place so that you know where the holes are in your business. And the first is your entity type, which, when we talk about the entity, we’re usually saying, are you a sole proprietor, which means you’re just running your business as yourself; are you a corporation; or are you an LLC, which is a limited liability company. So that’s one area. Then we get into contracts which I think are absolutely critical, and unfortunately, something that a lot of people ignore because they’re not sure what to be into the contract. Website policies are also really important to talk about; disclaimers and private policies and how you use, how people can interact with your site, and then the last piece is intellectual properties. So those are kind of the four main areas that we always use as our check-up for business.

Rob: Okay. So, let’s start with entities. This seems to be a really big question, and I have to admit: every time that I have started a business, I scoured the internet trying to help me decide which one is going to be right for me, you know—S-corp, LLC, C-corp, sole proprietor… Why would we choose one over the other? And I know this could easily be an hour-long discussion….

Danielle: Laughs

Rob: But could you give us some bullet points, just, you know, what we should be thinking about when we’re choosing the business entities we’re setting up?

Danielle: If you don’t with any type of entity, I could start a business right now and say, “I’m going to be in business doing whatever it is”—you could be a sole proprietor. That’s not typically anything that you have to file with the Secretary of State, although depending on where you are, you may need a local business license, so check on the rules there. But you are your business. You are personally liable for anything that happens. So when we start talking about entities, it’s typically that your business it growing as a sole proprietor, or you know right from the start, I do not want to be held personally liable if something goes wrong in my business, and that’s when you start looking at entities.

What I typically tell people is, take a look at what some of your goals are for your business. If you are going into this saying, “I know with the idea that I have, I really want to go seek funding, I want to start pitching investors, that type of thing”, you’re probably going to want a corporation, because then you can issue shares of stock. If you go with a limited liability company, or an LLC, it’s a little bit less work—there’s not as many company formalities that you have to follow. You don’t have to do minutes; you don’t have to do annual meetings; you don’t have to appoint a lot of different roles. But you still get that personal liability protection. So for a lot of business owners, the ease of the LLC is probably going to be the right choice. Now, you also mentioned S-corp. And S-corp is a tax designation with the IRS, and depending on where you are in your business, an S-corp can make sense for you, but an LLC can actually often be treated as an owith a piece of paperwork. What I always recommend to people is talk to your CPA to find out if there is a benefit for you to become a S-corp. Because, depending on how much you’re making in your business, it may end up costing you about the same amount as any potential savings you would get, so it all depends on where you are financially in your business if that’s going to be the right choice for you.

Rob: Okay, that makes sense. So, I want to back up though and ask—or, maybe just make a comment and have you clarify the whole reason that we do this, or at least one of the big reasons we do this, is because of the liability involved, which means, if I’m a sole proprietor, and somebody sues me or my business, I risk losing my home, versus if I’m set up you know with one of these other entities, the business actually is the legal entity and that gives me some protection on my own personal assets. Is that correct?

Danielle: That’s exactly what it means; it’s all about how much if you want to be responsible for any risk. So, like you said, if there’s a lawsuit, or if there is a debt; if there’s anything, you know—a client isn’t paying, and you have to sue your client, it’s then up to you as an individual if you’re a sole prop, but if you file as a LLC or a corporation, it’s all really going to come down to the business, and the business’ assets as to what they’re going to be held liable for.

Kira: Okay. So, it sounds to me like the S-corp is the way to go, and that’s what my accountant ended up telling me, but you’re saying that maybe it’s not and you don’t necessary need to be an S-corp, is that right?

Danielle: It depends on how much money you’re making, and that can be different for every business, because once you declare as a S-corp and you file that, you have to start paying that a reasonable salary, and the reasonableness is a big factor, so you can’t just pay yourself $10,000 a year if you should really be making 100,000 for the type of job that you’re doing. So, essentially you want to take a look at how those numbers come in, so that’s what I—I always tell people talk to your CPA and see if there is a benefit for you, because it may be something where you can do a simply LLC, and then when you’re income hits a certain point, and you kind of have that goal in mind, then you know “Okay, now I want to be taxed as an S-corp”.

Kira: Interesting, yeah. My…laughs…my accountant said that I would less likely to be audited as an S-corp, and I’m assuming that’s true because he’s good at what he does, but.

Danielle: Mmm hmm.

Kira: That’s what really kind of pushed me into moving into an S-corp.

Danielle: Mm-hm.

Kira: All right, so let’s talk about the other elements. Once you figure out your entity, then what’s the next piece you really need in place before you start working with clients, or if you’re already working with clients, what do you need in place to really protect yourself?

Danielle: Contracts. I cannot stress enough how often I see people do things on a handshake type of deal, and, it can be okay, and the question that usually follows is, “Well I got an email. Is that going to be sufficient?” And then I give the worst lawyer answer ever, which is, “…Maybe.” So, a contract should really cover a lot of different areas and it’s usually not going to be just what you have in an email. There’s more things that you need to talk about. So, what I typically recommend is that you have a client contract template that you use. And, it may be something that you got to customize each time, but then that way you know you have the pieces that are the most important.

There’s a number of different things that I always say “Make sure you have them”, and it’s of course going to be payment provisions, but when it comes to payments make sure you’re talking about more than just how much you’re getting paid. It should be about how much you’re getting paid, when you’re getting paid, what you have to do to trigger getting paid. So, for example, if you have to submit an invoice, or you have to get a purchase order approved, and then submit an invoice. What does that process look like? And if you’re on a retainer plan with a client, do you have it listed, you know, you’re going to be billed monthly, this covers this many hours, and… I think a big one that we all probably know in this world is ‘scope creep’. So we really want to make sure that it’s very specifically laid out what you’re going to be doing, so that you can set those appropriate boundaries and make sure that you’re getting paid properly for your time.

Kira: Okay, so, do you have any recommendations regarding the billing, what works best, or what makes most sense as far as protecting your business? I’m thinking about like billing, you know, thirty days out, so taking a deposit and then collecting the remaining balance thirty days from now, or, a lot of copywriters collect when they submit the final copy which can be a little more dangerous because that date may change and they may not get paid for another couple of months, if the project is pushed out. So what would you recommend?

Danielle: I think it’s whatever you are most comfortable with in your business. I’m a big fan of asking for a deposit, and then figuring out which date it makes sense. So, for some people, they’ll say, “I have a certain amount of money that’s due before I start working. That’s going to reserve your time and place on my calendar. This piece of the deposit is not refundable, if the contract gets terminated, etc. And then for the remainder, here’s how you’re going to be billed.” And it may be that they have thirty days to pay the remainder even though it’s a three-month project, or it may be at the very end. I think that, depending upon the length of time that it takes you to finish those projects, it depends upon, really what you can sustain in your business, because if we’re talking about working for ninety days without payment, that’s really stressful on a small business, you know, that’s….that’s what you need to think about, is, what do I need to keep my business going, and how do I make that happen and make sure it’s reflected in my contracts?

Rob: Okay, so what other clauses should we be thinking about in our contracts? I have a few off the top of my head that I can think of; writers that I know of, or that I personally use, you know, things like a kill fee if a project goes south, maybe refund policies. I know at least one writer who has a clause that requires the customer to use his copy word-for-word and can’t, you know, remove anything there. I know there are identification clauses and warranties and those kinds of things. What would you recommend really are, you know, say, the must-haves in any contract in addition to payment?

Danielle: I think your must-have, of course along with payment, is, termination. You need to know, if either party wants out of the contract, what does that process look like, and how do you get paid for the work that’s already been done, because a lot of times what I will see is either party can terminate, but it doesn’t say what happens to the money, so make sure that that’s clear—like you said, a refund policy. I think it’s also extremely important to set your boundaries within your contract. So like, you talked about with the kill fee. I’ve had clients who will do delay fees if, you know, you’ve sent copy draft to client, asking them for feedback; three months have passed; and you are just sitting there like you have thrown off my entire work schedule, and I’m not getting paid.

So, if you have something in there that says you have to respond within however many days you work—again, it’s all your comfort level for your business, or there is this type of fee that will be added to your invoice; if I don’t hear back from you at this time, the project will be considered suspended. If at this point you need to reinstate, here’s how much it will be to restart your project and get back on the calendar. If you need a rush, here’s a rush fee. So I think it’s just really important to make sure you know what boundaries you meet to set, and be very clear about them.

So I have a few clients who are very specific about the project management software that they use—Basecamp is of course always a popular option—so if you’re using Basecamp and you only want to receive correspondence in Basecamp, make it clear in your contract what your communication preferences are. What type of responses can they expect from you? So those are a couple of things. Now, there’s another area that I think is critical, especially for copywriters, and that’s of course the intellectual property. You are creating something for this person. You need to know when they’re going to take over the ownership. Then, what happens if you are giving them three different type of ideas? They go with one; what happens to the other two ideas? Who owns drafts and iterations? I think it’s really important to make sure that’s listed out, and I have seen probably every variation you can think of when it comes to, you know, when the ownership takes place, when it transfers—it’s usually upon final payment.

And like you said, if there’s a major change that’s made, then they can’t use it or they can’t do certain things. You can put restrictions on the usage as well. There are some people who want to make sure they can list it in a portfolio. So, if you want to have that, put it into the contract. And then, I think it’s going to be super important to have your confidentiality provisions, what type of information they owe you, who’s responsibility it is for certain things. So if they give you copy talking points, whatever the case might be, that has a typo in it, are you then responsible for that? The answer should be no. So make sure you’ve got some disclaimers in there about what you are promising. So if you are not promising any time of sales results, say, you know, this is based on tried-and-true business methods, but we can guarantee how this going to work for your business, so you aren’t on the hook for how the content performs once it’s done.

Rob: Okay, I love that. So we were having a conversation this morning with another copywriter who asked about when the appropriate time to sign a contract is. Is it ever appropriate to include it with a proposal and have them sign off on a proposal and a contract at the same time, or should you do them separately because they sort of have different purposes?

Kira: And the thinking there is that a lot of these newer proposal platforms that look very nice, like, they include all of it in them, and that’s why some of our students are asking that question.

Danielle: I think if the proposal doesn’t drastically change and the terms of the proposal are going to stay the same, I think you can do it at the same time, and it’s not an issue. It really—to me, that is one of those things that can become a personal preference type of situation. Like, is it more work for you to have to send it after the fact, and then incorporate the proposal into it as a scope of work, or does it make more sense for you to include the terms there?

Kira: Right. I also wonder about overwhelm too; if you want to get the “yes” on the proposal, is it overwhelming to send the terms as well, and maybe you’re less likely to get that “yes”?

Danielle: It definitely can be overwhelming, because I think that, even a relatively succinct contract is probably going to be in the range of five pages, roughly.

Kira: Right.

Danielle: So, that may seem a little daunting, and if you’re someone who is really talking about simplicity and keeping that core message very tight, then that might be something that seems a little bit overwhelming when they’re looking at, you know, two-page proposal followed by, like five-page contract, yikes.

Kira: Laughs.

Danielle: You know, this isn’t as simple as I thought it was. So you can always send just the proposal, say “Get your signature here, a contract will follow…

Kira: Yeah.

Danielle: …and then you can go from there. And I think that people expect contracts to be a little more complicated. I don’t mind the two-step process, but it all depends, like you said, if you’re using a software—I know a lot of people like Dubsado right now—if you’re using a platform that integrates everything, it’s totally whatever makes the most sense for you. Just make sure that the terms listed cover everything, and not just a few cherry-picked items that you know you would have in your contract. Make sure it has everything.

Kira: Okay, so can we just talk about worst-case scenario? Because this is all great, but a lot of copywriter currently are not using agreements, and maybe they’re just started and they think they can get away with it. I know I was one of those copywriters as well. So, can we talk about, like…not to scare everybody but….

Danielle: Laughs.

Kira: What is the nightmare? What is the nightmare scenario? What could really happen if you don’t have that agreement in place, and you’re actively working with clients? What have you seen happen?

Danielle: I think the most common thing that I see if when someone says, “I sent my invoice; I haven’t gotten paid.” My question is always, “What does your contract say?”  And then their answer is, “Well, I didn’t have a contract.” Then we kind of go down that road. But…

Kira: Yeah.

Danielle: It may be a matter of communication. It could be—that could be the most simply resolved thing because they thought they had net sixty, and you thought they had net three. So it may be a matter of when they thought the payment was due and it just wasn’t covered. So, I think that it’s key to know those things and that’s what a contract will lay out, but I think that worst-case scenario is if you have to sue somebody for lack of payment, and I think for copywriters, the intellectual property aspect is also really important. So let’s say they came to you and they said, “This is a concept that you created for me; why do I see it somewhere else?” And you’re thinking, “That was a draft that you didn’t approve, and I own that draft.” Well if it’s not covered, to do you want to be dealing with a cease-and-desist from them? You know, you want to make sure those things are all really clearly laid out.

And also, it really does help with scope creep. I think that’s one of the biggest things as service-based business providers, is scope creep and people saying, “Oh, can you do this too?” How about this: if you have everything really well delineated, it makes sure that you’re earning the money you should for the projects you’re completing.

Kira: Yeah. No that makes sense. So, as you were speaking to the different parts of the contract, you know, a lot of it, I have most of it in my current contract, but it does sound overwhelming, especially to someone who is new to this. So, what do you recommend? I mean, and does it help—I know a lot of templates are out there that we can access or paid for. Do you recommend starting with a template, or is that risky because maybe we think the template is solid, and then, we visit you and have an attorney review and realized that it’s missing some really critical pieces?

Danielle: I don’t think it’s bad to start with a template. We have a secondary business called Business-ease, that sells DIY legal templates, because we know that is what a lot of people want to do when they’re first starting out. What I recommend is, if you’re not sure about what should be in there, that’s when you want to involve an attorney, even if it’s for a template. Because, even if it’s an hour of their time to review it, and you know you have everything in there that you need to have, that’s going to be better than wondering. And it’s also really important that you understand what is in that template, and what’s covered, and how to change it if you need to. I think that that’s really critical, because you might be saying “Oh, this template’s okay but I don’t really love this payment term.” You need to have a comfort level with how do I take it from here, to the version to where I want it to be.

Rob: Seems to me too that this isn’t just about us, but it’s also about our clients, you know. I’ve worked in start-ups where an event happened, you know, where the company is sold, or there are investors that are coming in and they want proof that they actually own the IP.

Danielle: Mmm hmm.

Rob: And if they don’t have those contracts that say “Hey, yeah, this copy was written by Rob and he assigned it to us on, you know, this date”, you could lose millions of dollars in investor money or you know, an acquisition.

Danielle: Yeah. It’s really important, particularly for those reasons. If somebody is going through due diligence, they are going to want to see that paper trail; it is so important. So, to me, it’s one of those “get it in writing”. Always, always, always. If there is anything that I can preach to people early on in their business, it is invest in the contract. I think what tends to happen is we invest in things like our web design, our marketing, but we don’t think of legal as an absolute necessary thing. But, if something happens, it’s so much better to be proactive rather than reactive if there is a legal issue.

Rob: And another question, or comment I’d love to have your thoughts on: you know, as writers we start with a contract. Often times, we have a great successful project, we’ve creative a rapport with the client, and then the client comes back for more work, and at that time, often times, we think well, things are going great, there were no problems with that first thing—it’s really time-consuming to put together the contract again, and go through that process. And so often, you know, by the second or third project, we’re not working on contract again. I’d love to hear your thoughts again on the appropriateness of that.

Danielle: I recommend of course having something in writing that’s going to map out the scope, because every project is going to be a little bit different, right? So what you can do is create a master services agreement, which is your ultimate contract with a particularly client, and then what you do is you attach different scopes of work to it for each project. So you’ve got your master contract that’s been signed, but it’s each scope of work that governs each particular project. And we’re talking about, you know, maybe your master services agreement—or your MSA, you’ll hear it referred to—is five to seven pages, and your scope of work is two, you just get their signature on the scope of work and say, “The contract that governs this is our main agreement dated whatever the date it was, and that’s what’s going to govern our overall relationship. But this project? This is governed by the scope of work.”

Rob: I love that, yeah. That’s great.

Kira: Okay. I’d love to hear more about the intellectual property piece, because this gets fuzzy for me. You know, is this a separate form that you send post-project, more of a consent form, or is it part of the initial contract?

Danielle: I usually include them as part of the initial contract so that it’s clear on the onset; what is happening if a client asks you for something at the end, saying that you assigned all of the rights to what you created, you can always do that as well. but typically a good IP provision will say, “This is created on behalf of the client. Only the final draft, or only the finally approved copy, is what is going to be transferred, and it kind of lays out when those rights will transfer, you know. All rights will be assigned upon receipt of final payment—things along those lines, or… Usually what we tend to see, there are times when you may have a client who comes to you and says, “I want this to include every draft, every iteration, everything,” and for those types of things, I say, just know what you’re charging for, and if needed, you can say, “Okay, this is my price for final approved copy; I’m happy to do that for you as long as we adjust the price to reflect that.”

Kira: All right. So, just thinking through an example, often times copywriters will take screenshots of their work, so let’s say it’s a sales page, I take the screen shots post-project that are available to everyone. Is that something that belongs to me now? Or, because it’s the final copy in that screenshot on the actual sales page, that belongs to client, especially because it’s on their website, right?

Danielle: That’s a really good question. So that would be treated somewhat separately, because that would be your right to publicize or display that screenshot. So I would write that out very specifically in your contract as to what you have the rights to do; that you have the write to list your logo on a Work With Me page, or a brochure; whatever the case may be. You have a right to take a screenshot; you have the right to quote a sample for marketing purposes. However, the big thing is you are not claiming you own that. You can say, “Here’s a project that we did for X brand on a sales page,” and you’re listing that in your portfolio. So make sure your contract also lists that out as well so they know what you can do and what you can’t do.

Rob: So before we move on to website policies, are there questions we should be asking you about contract that we’re just not thinking of, because we don’t have the legal experience? You know, what other things should we know?

Danielle: I think that you’ve asked the big ones; I think the most important areas are, really, make sure you understand what’s in your template contract so that way if they come back with revisions or what the lawyers will often call a “red line”, if they come back with changes, so that you are better able to talk about what it is that you versus what they want. And don’t be scared if you get those changes; that’s really the number one thing I would say about a contract. It’s extremely rare and most other industries to not have changes go back and forth with contracts. But for some reason in the only world, we just—we sign everything…

Kira: Laughs.

Danielle:…it goes on, and we say “Okay.” So, if you have a change that comes through, know your contract well enough so that you don’t… I think sometimes people feel attacked. I feel like that’s too strong a word, but they feel like, “I don’t want to work with them because they requested this change”. Take a look at what it is, because it may just be “Hey, our AR department takes thirty days instead of fifteen days”. It would be relatively simple. So, those are the big things about contracts; just make sure you know what you need to have in there, and know what your walk-away point is. Because if they ask you to change too many things and you’re not comfortable with it, make sure you know what that point is so that you can say, “You know what, not going to be the deal for me.”

Kira: No, and that’s a really good reminder for us to hear because I did have a client come back to me and recommend some changes in the contract and, I didn’t take it the wrong way, but it’s just good to hear from you—a professional—that that is really typical, that this is really a communication guide to make sure your project is off to a good start, and successful the entire way.

Danielle: A good contact should really govern the entire relationship. It’s not just protecting your rights, it’s protecting your client’s rights, and it is going to be the basis of your entire relationship. So make sure it’s really specific: what are the deliverables that we’re going to be doing? What is that scope of work? What is everything that is going to happen as a piece of this relationship, so that way, if it doesn’t, or if something goes off the rails—because let’s face it, it happens—that you have a document you can rely on to help get things back on track.

Rob: Okay. So now, I want to shift to talk about privacy policies and your terms on a website. I mean, this is really just another contract in a way…

Danielle: Yes!

Rob:…but tells us why these are important and, again, what they should include, you know, what we need to be looking for.

Danielle: So there’s three pieces that I typically recommend you include in your overall website terms. So the first is going to be your terms: your usage terms, your site terms. You’ll see them referred to in a lot of different ways. This is essentially your contract with your audience. This is how they can use your website, and that may be things along the lines of, “I own everything here; you can’t share it”, or maybe if you have blog content, you say, “I have social sharing plug-ins, and you can share one image, but you can’t copy everything that I’ve done.” Think of it as your contract with your audience about how they can use your site. And it usually will include things that you really think you probably shouldn’t have to say like, “You’re not allowed to hack my site”; “You’re not allowed to put viruses in here”. But, we make sure that we include those so that it is very straight forward.

But it can also be things like if you have a membership site, or you have comment-enabled on your content, that you have different standards there that say, “Here’s my comment policy. It’s my right to delete anything that in my own discretion doesn’t live up to the comment policy.” If you have a membership policy, you can say, “We can refuse service to anyone.” If you have different things that people can download or purchase, you want to make sure it’s really clear as to what they can do with that, so what’s their personal license? It’s usually going to be just for personal use. And also, if you do sell a product, make sure you have those purchase policies. What is your return? What it is that they get? If there’s a customer service issue, how do they reach you? Those are some of the things that we recommend there. For your privacy policy, I think that these are absolutely critical. The only state that requires privacy policies as law is California, but if you have any audience who’s coming from California, you should have one. And I just think it’s really important generally speaking, if you were collecting data, you need to have a privacy policy. And it is essentially going to be a, what are you using, how are you using it, do you use cookies, etc. And then the last piece if your disclaimer, which is… The example I always give here because I think it’s the most clear, is let’s say, you go into, I don’t know, Web MD, because you have whatever illness is going around at that given point…

Rob: I think I have all of….all of the illness on Web MD, right? Isn’t that the way it works?

Danielle: Rob, I seriously… Dr. Google is a good friend of mine, we are tight…. But when you get there to Web MD, what does it say? “We are not your medical provider; this is for informational purposes only. Do not not go see your doctor because of what you see here”. So, those are the types of things that you can include to say, this is for informational purposes only. Even though I am giving you x, y, and z type of information, that doesn’t mean we are in any kind of direct relationship where you shouldn’t go see a professional; that type of thing. So those are the main areas we recommend including.

Rob: Okay, so, I want to be specific about US versus international as well, because you mentioned that California is the only state that requires a privacy policy, but places like the EU, maybe even Canada, you know, have maybe more restrictive policies that require some of these things and some of the things that we can do too as well, so, are there international considerations that we should be thinking about here?

Danielle: Take a look for wherever it is that you live; I’m a US-based attorney, so I can only really speak to US. However, the European Union does have the cookies policy, which is essentially, if you used cookies on your website, you need to have your users accept that there are cookies there so, they essentially will say, “We use cookies; check yes or no if you want to continue.” So, depending upon where you live, you may have other restrictions; just make sure you know what those are.

Kira: Okay. So, with terms and privacy policies, again, what could go wrong? Again, what have you seen go wrong, just so we see how important this is?

Danielle: I think one of the biggest things that I’ve seen is in particular with usage of your intellectual property. So for example, you’ve got a blog where you’re talking about the different services, you’ve made some great images; someone takes them and starts sharing them. I think that it makes it a lot easier to say, “This is in violation of my terms that are linked here; you can’t take that. Please take it down right away.” Or, if you are using third-party content, so let’s say, you do a round-up saying these are the best posts that I have seen from copywriters on the web this month, and you use an image from their site that maybe you didn’t get permission from. You can have it listed, you know, “If we have content here that needs to be taken down, here’s the address that you can reach us.” And, it can sometimes alleviate those types of problems for sure.

Rob: So I’m assuming that, as copywriters, we should all have an attorney or at least somebody that we can lean on, you know, for this kind of work. But, a lot of copywriters you know don’t have a lot of money for this kind of thing, so, I’m also a little bit curious—what should we expect to pay for legal help on a contract or website policy, knowing again that it varies a little bit by location and the needs that we have, but, are there some guidelines you can give us on this?

Danielle: I think it really does vary considerably. One of the questions that we get a lot is, “Well can’t I just use Legal Zoom?” And, you definitely can, I’ve seen a lot of people who have unfortunately had to come back to us after having Legal Zoom issues, so it may not be always the best option, but take a look at what your budget is, and then try to find things that work within that. I definitely recommend when you are starting out, know that you’re going to have some costs there. And to me, the absolute most important thing—especially for people doing service-type of work and creative work like you’re doing, have that client contract. For client contract, if you don’t have a specific template that you can buy or you want to have it looked over, I would say probably expect to have it be about three or four hours of an insuree’s time, so you’d probably be looking anywhere between, I would say, 750 to 1,000 plus, depending upon exactly what is needed for that particular contract.

Kira: All right, so I’d like to ask you about programs and sell, especially because you understand influencer marketing..

Danielle: Mm-hm.

Kira: …Many of us are launched courses and products and group-coaching programs, and Rob and I have launched a few too. What do we need to think about in those contracts that may be different than individual client services to protect ourselves?

Danielle: I usually say handle that through your website terms, not through an individual contract, because I think that handling individual contracts for that is honestly a lot of big administrative work. So you can handle that within your site terms and have your purchase policies and your use policies, everything laid out. Most important here is definitely, definitely make sure it is extremely clear what you are promising, which is essentially shouldn’t be promising anything other than delivery of the content, that it’s up to them to determine how it is use, but make sure that your refunds are especially clear, because I know a lot of time we’ll see, you can do a thirty-day money back guarantee if you’ve completely certain steps. Make sure that’s all listed out so that it’s extremely clear what has to be done in order to get that refund, and how people can use it. So, most of the time when we’re talking about an online course, you’ve got downloads that go with it. If somebody takes the download, can they use it as many times as they want for themself? Can they send a copy of it to their friend? Can they send a copy of it who works within their own organization? It’s really important to be clear about how that content can be used, but I would say for that, make that part of your website terms, and do the little check-box where you see it says “I agree to the terms”, and make sure people have access to that, so that if there’s ever any questions, they know exactly what is governing them and their usage of those products.

Rob: So we talked a little bit about governing the hand-off of intellectual property between us and our clients, the things that we’re creating for them, but what do we need to be protecting in our own businesses, as far as that intellectual property goes—things like business name or logos, you know, service marks, anything like that—what would you say about that?

Danielle: When it comes to protecting your business, there’s usually a couple pieces you want to consider, and that’s going to be copyright, and trademarks. If you’ve invented a something very specific you may get into the point where you need patents, but a patent is going to be on a physical design, so most of the time we don’t talk about patents, and that is a specialized area of law. So a copyright is going to protect the expression of an idea in  a fixed, tangible medium—and I just used a lot of “legal-ese” there.

So essentially what that means is, a copyright is going to protect the expression of an idea. Whether it is written, photography; it could be a movie; it could be a piece of music. You do not have to register with the copyright office. You get additional rights if you do register, and it’s actually a fairy easy process, but you want to make sure that it’s clear that these are your copyrighted materials and that other people can’t use them. If you have created something that has creative commons access, make sure you know what you’re giving people.

Creative commons can essentially license certain pieces of your copyright rights, which may be that someone can display something that you have created; just know what you’re covering there. In terms of trademarks, a trademark represents your brand in the stream of commerce. So that is going to be things like your brand, your name, your logo. And, the key for trademarks is it can’t be too similar to what someone else is already using, and it has to be distinctive. So I can’t go out and start a law firm and call it “law firm”, and expect to be able to trademark that because the USPTO, which is the office of patents and trademarks, will look at that and say, “You know what? This is descriptive of what you’re doing; it’s not distinctive, it’s not….and if it’s not distinctive, it doesn’t merit a trademark.” But, if you are using something that is distinctive, it can be really important to make sure that you’ve filed that trademark, whereas you don’t necessarily have to file for a copyright registration.

I do think it is important to do the trademarks, because of the fact that once you file for that, it’s listen in the USPTO database, and people do, when they’re creating products, go to that database to make sure that certain things aren’t taken. We always recommend that if you’re launching a new product; if you are launching anything that’s going to have a somewhat distinct name, go to the USPTO website and do a search to make sure someone else isn’t already using it, because there’s nothing worse than having to re-brand because you find out you’re infringing. That’s a nightmare. So make sure that’s not happening.

Rob: And, assuming that, you know, we do that search, we find that our name isn’t being used by somebody else, or at least it’s not being used by somebody else in a similar industry, because I think there are some you know, restrictions based on industry, is it enough just to put the “TM” then on, you know, our trademark or an “SM” on a slogan, service mark? And maybe that’s what we do for a year, and then we get serious about registering the trademark…?

Danielle: So you have certain common law rights, which means even if you haven’t registered with USPTO, you have certain legal rights, which is when you’re using that TM. When you see the ®, that means that it is a registered copyright, so you can’t use the ®, until you have gone through the registration process. The most important thing is when you go through registration, not only do you get to use the ® so you have more legal rights that go with it, you are then put into the trademark database so other people are automatically put on notice that you own that mark. So that is a big help. Now, it doesn’t necessarily depend on the timing; what it depends on is when you’re making money, because a trademark protects you brand in the stream of commerce, so you have to be making money from it. You can file a trademark what is called an “intent to use” mark, and that means you are planning to use it at some point in the future, as opposed to, you’re just—it’s like an idea that you’re like, “Eh, maybe I’ll get to that at some point.” Like, this is going to give you a more specific time frame, but if you are actually using it in the stream of commerce, then there you can apply for a slightly different application which shows that it is already in use essentially in commerce.

Kira: So I want to skip backwards a bit, but what happens if any of these things go wrong? Like let’s say someone breaks your contract; you’ve done all the right things, and you worked with an attorney, and then your client breaks your contract, maybe they don’t send you a payment. How do we handle it then, especially considering maybe it was just a mistake or misunderstanding? Do you recommend we just send a friendly email where we refer back to the contract or how do you typically handle that?

Danielle: I always recommend starting nice, because you never know. You don’t know if somebody maybe was on vacation; you don’t know if you lost a family member. There’s so many things that we just don’t know about what’s going on in that company, and I think people move to threatening collections a little faster than perhaps they should.

Kira: Yeah.

Danielle: What I usually recommend is friendly-ish email, and, this is something where you can be like, “Hey, I really enjoyed the project that we worked on; I’m hoping that you’re enjoying it. I just wanted to follow up with you because I see that your payment was due on x, and we haven’t received that yet. Can you give me a status update?” Again, super-friendly, find out what’s going on. If they ignore you…laughs…then that’s where you may need to escalate it. I also strongly, strongly recommend following up with phone calls, because I think it’s easier to ignore an email, but when somebody’s calling, they’re like “Oh wow, this is really serious; I can’t just keep ignoring this thing in my inbox!” And we all do it.

You know how it is when you get busy, like, I think a lot of people are at the end-of-the-year-crunch right now, you know? I think that, then escalate. The other thing is, depending upon the company that you’re working with, you never know if somebody left, and the email just may not be seen by the correct person. So, try to find another contact there. Like let’s say you’re working with one department; see if you can find someone through LinkedIn maybe, or through the company website that’s in the finance department if they haven’t paid you, because that’s usually where we see the most common things, is looking to try to get the payment made. From there, if that doesn’t work and you’re still not getting responses, I recommend sending an official letter.

You’d be amazed at how quickly people respond to a certified letter, because they’re like, “Ooh, this is getting very serious.” And, in those letters, you can list out, say, “I called you on this day; I called you this day; I emailed you this, this, and this; I’ve emailed this person… Just kind of keep track of exactly what you have done so that way, if you need to go back and refer to it, you can, and then say “I haven’t gotten my payment. If I don’t have payment by this point, then I will be forced to fill-in-the-bank. You can’t threaten a lawsuit if you don’t plan to sue them; you can’t threaten collections if you don’t plan to send it to collections. So you kind of need to consider what you’re next step is, and I think for a lot of people, just the sheer effort—if it’s not really a high-dollar amount of doing a lawsuit, it’s probably somewhat prohibitive, so I think that a lot of people will end up sending it to a collection agency to try to recover some of the debt.

Rob: Yeah, that was my next question, was going to be: at what point do you say this isn’t worth collecting, because a lawsuit is going to be too much? If it’s 5,000? If the debt is 10,000? 20,000? Like, where does a lawsuit become an economical choice as opposed to just preserving our pride and ending up costing us more money?

Danielle: Unfortunately, it really depends on what your personal thresholds are. I think for a lot of people, it can be a huge drain on them just emotionally, financially, all of the things. So they would rather just send it to collections so they can kind of wash their hands of the matter. You can also look at what your small claims thresholds are in your area, because small claims usually isn’t as expensive and it’s not as much of a process, but if we’re talking about something that’s, you know, $20-$30,000 for a really big project that you worked on, I would definitely at least do a consult with an attorney, and see what they feel your chances of recovery are, because at that stage, that’s a big amount.

So, for sure; whatever your comfort level is and also, small claims court in every state will vary. Usually, it’s going to be 5 to $10,000 is the cutoff. So, if you say “Okay, $5,000 I can do small claims, I’ll just do that; I’ll get a judgment”, you can attach their bank accounts and try to get paid that way. But, it can be a pretty intense process so, definitely kind of look at what the options are. But, once thing to keep in mind: often, a collection agency is going to want to see the contract. So make sure you’ve got it in writing, so there’s yet another reason to get it in writing is….if something goes bad, oh, you really want to have.

Kira: Right, and I was just going to say, all of this doesn’t matter if you don’t have that contract right, or let’s say I did have an email, I had not heard this podcast and prepared a contract yet, but I have an email with a client about the money. Is that enough to move forward and collect the money?

Danielle: Maybe.

Kira: Okay.

Danielle: And it’s so hard because the rules can vary place to place, and it may depend on the agency. So I would say, it might be enough, but you’re always going to be on stronger footing if you got the signed contract.

Kira: Yeah. All right, we need our contracts. Everybody get contracts!

Danielle: Laughs.

Kira: So, for anyone who’s listening and does not have a contract, or maybe they have a contract and they want someone like you to look at it or make it better, where should we go to access those?

Danielle: Our website is hashtag-legal.com, and we love working with service-based businesses. We’ve done a lot of this type of work; we’ve worked with copywriters so we are always happy to look through it and say “Okay, these are your options”, and one thing that we always try to do is create templates that you can reuse and that have, I always call them the “choose your own adventure” contracts, where you know like, okay, for this client I’m going to ask for this payment; for this client, I’m going to ask for this payment, and try to give you some options that will really grow with you while your business is scaling.

Rob: Really helpful stuff; thank you so much for answering the questions and stepping through so much of this that I think…

Danielle: Yeah!

Rob:…confuses a lot of us, and yes. It’s just really helpful. Thank you.

Danielle: Of course.

Kira: Thank you, Danielle.

Danielle: Thank you, and I was happy to be here.

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