Legal Essentials for Content Creators: Navigating Contracts and Ownership

Steps to protect your content: Copyright registration, platform terms, and the DMCA.

Content Creator Contracts, Copyrights and Content Ownership.

If you create content, in any form…then you need to protect yourself – and your content!

Whether you’re a freelancer, consultant, or a full-time employee, you’ll deal with contracts that affect content ownership and how you can use what you create. Our guest, IP lawyer Sharon Toerek, highlights the critical elements every content creator needs to consider when drafting contracts, from intellectual property rights to defining deliverables, deadlines, and payment specifics.

For those dealing with brand sponsorships, influencer agreements, or creating digital courses, Sharon explains the growing complexities of comparative advertising and the legalities of using memes and other pop culture references in marketing.

The Complexities of Content Ownership covered in this episode:

1. Content Ownership Based on Employment Relationship

  • Explanation of ownership distinctions
  • Ownership control for content creators who monetize
  • Different ownership scenarios (remote work and independent contractors)
  • Employment types (W-2 vs. 1099) and ownership implications

2. Contracts and Intellectual Property

  • Common red flags in contracts
  • Importance of clear agreements on intellectual property
  • Factors to consider in content creation contracts
  • Influencer relationships and terms of use

3. Legal and Financial Protection for Entrepreneurs

  • Necessity of having a good lawyer and accountant
  • Common reasons for contract breakdowns (dollars, deadlines, deliverables)
  • Defining and interpreting deliverables to avoid disputes

4. Comparative Advertising

  • Necessity for accurate information and clear documentation
  • Preventing consumer misinformation

5. Types of Content Transactions and Agreements

  • Creation, ownership, sponsorships, and influencer arrangements
  • Importance of specifying details in contracts (deliverables, deadlines, payment)

6. Influencer Marketing Trends

  • Shift towards influencers having more control
  • Monetization based on content use

7. Defining Common Vocabulary and Metrics

  • Importance in business relationships for measuring success
  • Complexities agencies face in managing projects

8. Protecting Content as a Creator

  • Copyright registration and platform terms knowledge
  • Digital Millennium Copyright Act for takedown procedures
  • Challenges and decisions around protecting content rights

9. Evolution of Influencer Agreements

  • From simple posts to complex contracts
  • Numerous distribution mechanisms and repurposing

10. Legal Considerations for Course Creators

  • Clear terms, ownership affirmation, and use definitions
  • Revenue share, permitted use, sharing rights, fee structures

11. Ownership Issues in Content Creation

  • Contentions over ownership between creators and organizations
  • Local contexts like school systems and the impact of available creation tools

12. Legal Aspects of Using Memes in Marketing

  • Copyright and commercial implications
  • Fair use for parody, satire, criticism, and academic purposes

13. Defamation on Social Media

  • Difference between false statements vs. personal opinions
  • Legal considerations of competitor comparisons

Show Notes:

In this podcast episode of Endless Coffee Cup, host Matt Bailey welcomes legal expert Sharon Torek to discuss the intersection of copyright law and digital marketing. They explore the complexities of using memes in marketing, the importance of knowing the end purpose of content, and the risks involved. The conversation also dives into the legal aspects of influencer marketing, sponsorship agreements, and content licensing. Sharon provides practical advice on protecting intellectual property and emphasizes the need for clear contractual agreements. The discussion is essential for content creators, marketers, and brands looking to navigate the legal landscape of digital marketing.

00:00 Navigating the Legal Landscape of Memes in Marketing

01:17 Welcome to the Endless Coffee Cup Podcast

02:23 Deep Dive into Copyright and Content Creation

13:26 Exploring the Intricacies of Contracts and Licensing

23:03 The Importance of Disclosure in Influencer Marketing

42:22 Protecting Your Content in the Digital Age

46:25 Final Thoughts and Resources for Content Creators

Protecting Your Content: Contracts, Copyright, and Content Ownership

[00:00:00] Matt: Hello and welcome dear listener to another edition of the Endless Coffee Cup podcast. As always, I’m your host, Matt Bailey, and bringing you more information about education in the digital marketing realm. And many of you responded to the previous podcast that we had with Sharon Torek and I got a ton of questions.

[00:00:21] Matt: So thank you so much first for sending those in. But also, thank you for your response and letting us know that this is the kind of information you’d like to hear more about. I think, Sharon, anything legal immediately gets people’s attention, so thank you so much for joining us for a second show.

[00:00:40] Sharon: Thanks, Matt, for having me back. It’s my pleasure.

[00:00:43] Matt: Oh, great. So I want to start right off just, maybe some rapid fire questions, Sharon, if that’s okay with you?

[00:00:50] Sharon: Sure. I’m ready.

[00:00:51] Sharon: Hey, my week is today.

[00:00:53] Matt: All right. Also, dear listener, if you did not listen to the first episode, I would challenge you. You can listen to this one, but you might want to pause it and go back because a lot of what you’re going to hear in this episode is based on our previous conversation.

[00:01:07] Matt: But this has everything to do with the legal aspects of being a content creator, but also working with content creators and protecting yourself. Now, a couple of these questions, Sharon, I had to laugh at a few of them. One question, is there infringement when I use memes, in my marketing or social media posts?

[00:01:28] Matt: And it went into detail here about, if I use the Leonardo DiCaprio meme from, The Great Gatsby, is that different from using Grumpy Cat? Or another meme that obviously has been uploaded to a social profile, or through Instagram or Facebook or something, but then has just caught on.

[00:01:51] Matt: Are there differences in the means you can use, I guess is one question, but then also how can you use those properly? I guess from my standpoint, I see so many people using them, but yet I’ve never heard of any lawsuits. So help us through this.

[00:02:08] Sharon: and I think it matters and i think we talked about this, during our last conversation where alot of times you have to start with the end in mind and sort of determine the end purpose And then I also like to say, in many cases, there’s a technical answer to questions like this.

[00:02:27] Sharon: And then there’s the true practical implications and maybe taking these actions. And so understanding your risk, I think is what’s important. So, in the case of memes, the copyright law will permit the use of the content of another memes in this case for parody or satirical purposes, it’s one of the examples that you can see every Saturday night on Saturday night live where they are riffing on, some culturally relevant topic or something timely that using the IP in many cases of other people.

[00:03:08] Sharon: So I think you need to think about what is your end purpose in mind. If you’re a marketer that wants to use a meme in your marketing, I think that’s different than if you’re a marketer who’s maybe popping it into an email response, or there’s a difference, I think, between the commercial impressions of those things.

[00:03:28] Sharon: And so you need to think about what is your end purpose. And then you also need to think about whether or not the meme also involves the likeness of a famous individual. Now, in the case of the Leo DiCaprio one, obviously a famous individual, obviously somebody owns the copyright to that original imagery.

[00:03:47] Sharon: So if I popped that into the signature line of an email or in the body of an email that I, when I was writing something satirical or, less risk. If meme and incorporate it into an actual print ad or commercial or, social media post. That’s really, I think, farther along towards crossing the line over into invading somebody’s copyright and or invading somebody’s publicity rights.

[00:04:18] Sharon: And so I need you to think you need to be thinking about what is the end use. Remember that if it’s a commercial use, you don’t really, necessarily have a defense to copyright infringement based on fair use and then adjust your risk accordingly that you’re willing to assume. That’s the best way to answer that

[00:04:36] Sharon: I think.

[00:04:36] Matt: Great. Yes, that really helps navigate through, there’s a lot of, I think so many things have been done online, without any question or thought to legalities. And so I guess part of my follow up to that would be, have there been any lawsuits or claims based on using someone’s likeness as a meme or have any of the major, rights holders ever tried to enforce that?

[00:05:05] Sharon: I’m not aware of any cases personally. I do know there’s been some litigation when the meme involves the likeness of a famous individual and it’s an extremely commercial use. So I can’t point to specifics, as we sit here and talk today, but just remember that ratchets up your risk whenever the meme involves the countenance or the representation of some famous individual, because they’re, the concern is not only infringement of somebody’s IP, but it’s also are you implying some sort of false association.

[00:05:36] Sharon: Now, most end consumers are going to know that just because you include a famous meme from Titanic, that doesn’t mean that Leonardo DiCaprio is endorsing your product or has anything to do with you or your product. So, apply some common sense here and evaluating your risk.

[00:05:51] Sharon: But be original, that’s where I end up on a lot of these questions when marketers try to lawyer the lawyer, what about this? What about that? What if we do this? What if we do that? Just try being original first and, sometimes a very original take on the content of another, as a refreshing way to do that.

[00:06:15] Sharon: And assuming you’re avoiding as much risk as you can, a low risk proposition, but within the bounds of the copyright law, potentially an infringement.

[00:06:26] Matt: Okay, all right, related to that, one of the questions we got was, I see movie critics or creators constantly using clips from movies and usually it’s the video but not the sound. Do they need permission for that? Because if you had mentioned earlier if it’s for commercial and if you’re a youtuber who does movie reviews You’re got a commercial aspect to this.

[00:06:50] Matt: So are they doing it without permission or are they protected?

[00:06:54] Sharon: They are probably protected because one of the examples of fair use that is an exception to a claim of copyright infringement is criticism or scholarly writing or academic use. And so since those critics are displaying the work so they can talk about the work in a critical fashion, they’re likely going to be protected by the fair use defense to a copyright infringement claim.

[00:07:20] Matt: Great, now that does not protect someone. One of the questions we got was what constitutes defamation in a social media context? And I have to wonder what the,

[00:07:32] Matt: the

[00:07:32] Sharon: I will need time to answer that one.

[00:07:34] Matt: I have to wonder what the story is behind that one.

[00:07:37] Sharon: Yeah Saying something that’s false, with knowledge of its falsity that causes damage. So those are your primary elements. And so if you are representing something falsely or actually lying about someone and you have knowledge that the information you’re sharing is not the truth, and it causes damage to that individual you’re most likely defaming them.

[00:08:07] Sharon: And so, beyond that, we’d would need specifics, but those are the basic elements to consider if you’re going to be discussing another individual. Now, using opinion that may be unflattering or critical of another is not necessarily defamation. If you say, I believe that this person is dishonest or, does these things.

[00:08:34] Sharon: that’s your opinion, and that may or may not be defamatory, depending upon how you’ve phrased it, but, so it’s not against the laws of defamation to state your opinion, but you just need to know where the line is and make certain that you’re being factual or not unintentionally misrepresenting when you’re talking about another individual.

[00:09:00] Matt: Very good, yeah, I think a lot of it too, I think they were looking at maybe even comparing themselves to a competitor, where would that line be?

[00:09:10] Sharon: The Federal Trade Commission, when it comes to comparative advertising, says you cannot, you’ve got to have accurate information about your product and the product of the competitor to whom you’re comparing yourself. You can’t misstate, you can’t use information that you don’t actually have in your possession.

[00:09:32] Sharon: You can’t refer to results that are not the product of research you’ve actually done yourself and have the documentation for. So, comparative advertising looks easy when you see it as a consumer, but there’s actually a lot of documentation and science behind it. So that, we’re not creating

[00:09:53] Sharon: false stories that could mislead consumers, and to making, and to not having the facts or having the wrong facts when they make a purchase decision.

[00:10:02] Matt: Wow, those are very good and a little bit more than I thought was there as far as comparative marketing or anything like that. I like the owned research part. That is very interesting to have and, it’d be provable as well that

[00:10:18] Sharon: Yeah, points. typically when you’re looking at comparative advertising it’s a product to product stack up, right? So how are you going to get that information? you’re doing the testing yourself or you’re referring to testing that the competitor has released. So just make sure you have your documentation ducks in a row.

[00:10:41] Matt: Thank you. I appreciate your, willingness for some rapid fire questions. There’s a few others, but they’ll be covered in our content today because what I want to do is come back. You shared a wonderful kind of visual as to the three areas of legal area, brand content, content, copyright, but then also

[00:11:03] Matt: an issue of dealing with, and I’m trying to read my own handwriting here, licensing, contracts, transactions. That’s what it says.

[00:11:13] Sharon: We were talking about our triangle framework here at my firm of looking at IP protection and monetization and it is brand content and transactions.

[00:11:24] Matt: Wonderful, that’s it. I scribbled transactions, now I know what it is. But yes, getting into the licensing and contract areas, and so like I said, we’ve got a lot of content creators, students, and so a lot of questions came in around that, and so I thought a follow up show focusing a little more on contracts, and especially contracts between content creators, and then we can go in maybe another triangle approach, brands and agencies that are trying to bridge between creators and brands.

[00:12:00] Matt: When we start thinking about contracts and especially when we want to, we can look at creators from any number of aspects. There’s a lot of freelance sites out there we can bring in for dancers, but then also when we work with a content creator, I think there’s a little extra, that we need to be aware of.

[00:12:21] Matt: So, I guess let’s start at a 101. What do we need to think about when we are developing some contracts? How do you approach that?

[00:12:29] Sharon: I think it’s important to be specific about, which parties we’re talking about. Let’s talk about the typical entrepreneur who is building a content create, focused business, and maybe they are a lifestyle blogger. Let’s just use that as an example. They are creating original content for their own digital property.

[00:12:52] Sharon: They may be approached to create some custom content for a brand for example. There would need to be a contract between the content creator and the brand regarding the types of content to be created, who own that end content, what the intended uses could be for the content, whether it’s on the brand’s website, the brand social media channels.

[00:13:19] Sharon: That’s 1 type of contract or transaction involving the creation of the content and the ownership of the content, the use of the content. Let’s say that brand also wants to sponsor the content creators lifestyle blog. So then that’s a sponsorship arrangement, which is either a separate term in the agreement between the parties or a separate brand sponsorship agreement where the brand is going to share

[00:13:47] Sharon: it’s corporate identity, it’s product logos, et cetera, and the content creator is going to use them on their blog to show the support of the sponsor.

[00:13:56] Sharon: Let’s then assume that the content creator is also going to serve as an influencer for the brand and talk about the brand’s products on the influencer social channels.

[00:14:08] Sharon: So, there may be an influencer agreement required between the parties. And each of these agreements is going to include the specific deliverables, whether it’s social media posts for an influencer arrangement, whether it is number of impressions or mentions, if it’s a sponsorship deal, or whether it’s the number of articles or blog posts that are going to be created.

[00:14:31] Sharon: If it’s the content creator putting content together for the brands website or social media properties. So there’s lots of different types of transactions with specific deliverables, with specific deadlines and with specific dollars. And those are the terms that everybody needs to be thinking about and then shortly thereafter who owns the content does the creator own it all and are they just licensing it to the brand because of their relationship?

[00:14:59] Sharon: Does the sponsor on the content because they are paying the content creator to create it whenever the arrangement It’s got to be reflected in the agreement and then lots of the other customary terms and conditions, like payment details and the, amount of time the parties are going to be in business together, et cetera, round the agreement out.

[00:15:21] Sharon: But that’s just several examples of the type of transactions that can occur based on one relationship between a creator and a brand.

[00:15:32] Matt: Yep. Those are important. And I like how you broke those out into three separate distinct areas. I met with a company that was in the middle of litigation because they had sponsored an influencer. There was a certain number of posts. There was how long they would provide product and the product was to be in so many shots.

[00:15:54] Matt: They never discussed and it was never agreed upon who owned the content. And so when the influencer did not do more of what the company wanted, obviously it went south from there, that’s why I said I like how you broke that out because it was very different responsibilities that you’re asking this content creator to do. And if you’re not defining each one of those responsibilities obviously who owns and how it’s going to be used.

[00:16:26] Matt: I think sometimes those are things that tend to get overlooked

[00:16:30] Sharon: Yeah. And, in the earlier days of influencer marketing in particular, which is how we traditionally started thinking about content creation as a career or as a business, the brand was very much in control of ownership of the content. They would compensate the influencer either with products or with product and cash.

[00:16:52] Sharon: But they would own the content and they wanted the ability to be able to use it on their other properties, their website, if they wanted to, their various social media channels, et cetera. And as influencer marketing got more popular and pervasive as a strategy, the climate has very much turned and influencers are very much now in control, over the ownership of the content that they create.

[00:17:16] Sharon: And what you see instead are license or limited use arrangements between the creator slash influencer, a creator is not necessarily an influencer and vice versa. But where they were one party is serving as both, which is how influencer marketing started because these are people who were content creators and they had a channel and they had an audience.

[00:17:42] Sharon: Now these folks are more in charge of the ownership rights around their content. And it’s not so much that they want to care so much about owning the content, they want to control the distribution of it and they want to be able to monetize it more deeply based upon the extent of the use of it. So, it’s 1 price

[00:18:04] Sharon: if you’re just going to use this content on a social platform, it’s another price. If you’re going to use it on 2 or 3 platforms, it’s another price if you also want to use it on your website and it’s indefinite. If you want the use indefinitely versus just over a three month period, that’s going to cost you more.

[00:18:23] Sharon: It has become part of the economics of the industry.

[00:18:29] Matt: It’s amazing to see how just in a short time, this has gone from, we’ll give you a thousand dollars to make a post, to now we have, as you’re going through this, I’m thinking through some of these agreements, and they have turned into pages and pages of, defining you because, as you said, we have how many distribution mechanisms, we have repurposing, repackaging, all these many different things that now if you’re going to work to someone, that needs to be very clearly defined, because it is IP, and now how is it going to be used?

[00:19:06] Matt: It’s turning into a massive industry just to, I think, manage this.

[00:19:16] Sharon: There are content creators who build businesses around perhaps being digital course creators. They’re not in the business of promoting anybody’s brand. They’re not in the business of building a huge social audience to promote a particular lifestyle or point of view, they have a narrow area of expertise.

[00:19:34] Sharon: they have a lot to say about it. The information they have is valuable and they package it in a way that delivers it to folks to consume and there, which you want to make sure your terms and conditions provide for, which usually replace a more traditional contract between the party is, affirming the creator’s ownership of that work.

[00:19:59] Sharon: Defining the terms under which the student can use the materials, share the materials with other parties. So, it really is very dependent on what type of content creation business you have. the IP issues may be fairly identical, but exercising them feels very differently depending on what kind of business you’re building.

[00:20:19] Matt: Absolutely. You alluded to this and this also was one of the questions that came in and it’s a question of disclosure. I remember seeing, I think it was a study about five years ago that said about 90 percent of what are called the macro influencers, celebrities, sports stars, things like that,

[00:20:39] Matt: 90 percent of them don’t do any disclosure at all because they’re either unaware or they just do what they do. And so who is responsible ultimately for disclosure and is it required? Let’s just start there.

[00:20:55] Sharon: It’s definitely required. The FTC is very specific about the kinds of disclosures that are required. Any macro influencer today, which is just a stage or 2 below a celebrity influencer is sophisticated enough to understand that the FTC requires disclosure and transparency when you’ve been compensated.

[00:21:15] Sharon: And compensation can either be money, or it can be being invited to a special event that’s not open to the public, or it can be, given a special privilege or receiving free product. There’s millions of ways you can have a disclosable relationship with a brand. You could work for them. You could work for an agency that represents them.

[00:21:36] Sharon: the bottom line is the FTC doesn’t want any consumer to not have the information that they need to assess whether an influencer is actually got any potential bias about what they’re saying and why. So there’s definite disclosure requirements. There at the FTC is enforcing them much more closely now than it did five or 10 years ago when influencer marketing was just starting.

[00:22:00] Sharon: Remember at the end of the day, this is advertising and the FTC governs advertising and has truth in advertising principles that the influencer guidelines are developed around supporting. And so if you are in the business of creating content that integrates a product or talks about a product. And you have a relationship with the provider of the product.

[00:22:26] Sharon: There’s specific ways to do it, and that’s really beyond the scope, I think, of our conversation today, but you need to understand the right mechanisms to use to disclose that in your posting and in your writing.

[00:22:39] Matt: Great. Thank you. That gets into some tricky stuff, but ultimately it’s just being truthful with people and letting them know you’ve got a relationship with that brand

[00:22:49] Sharon: Oh, and you asked me who’s responsible. Everybody in the chain is responsible. The brand’s responsible. No, legally, the brand, the influencer, and the agency who puts them together in many cases. So everybody’s got a vested interest in making certain that the influencer understands the disclosure requirements and actually follows them.

[00:23:12] Matt: Very good. Now if you, let’s look at a course creator. You had talked about them. And licensing their content. So if they’re creating courses, but maybe a brand approaches them that we would like to license your content, maybe for their LMS system or for a private section of their content, what’s something that a creator there should be aware of and some of the major points that they should look at in an agreement with a company.

[00:23:44] Sharon: I think you want to have a basic understanding of how this is really a license and distribution model is how I would best refer to it because you’ve got an organization or a platform that wants to make your content available with third parties. What’s the revenue share going to be?

[00:24:01] Sharon: Obviously that’s the first thing that most content creators are thinking about if they’re in the content business, to make a living. What circumstances under which, can the brand or the company or the platform circulate your content and what can the students who consume the content, do and not do with it.

[00:24:21] Sharon: Are they allowed to download it? Are they allowed to share it with third parties? If a company licenses a course, and it’s a train the trainer type of a course, are they then allowed to go and teach sessions off of that content? what are the parameters of the permitted use you need to decide?

[00:24:40] Sharon: And many course creators will have multiple types of arrangements where, If this is a learning system that’s open to the public, like teachable or something like that, it’s very clear. You are licensing your content to them and it’s a per use fee you’re receiving. But let’s say, Amazon came to you and said, we love your training.

[00:25:04] Sharon: Ofcourse, we want to pay you a fee to be able to put this on our private learning platform within the organization.

[00:25:12] Sharon: Your fee is probably going to be higher. The audience is more discreet and they’re purchasing one license for an unlimited number of potential users. If a company then said to you, we want you to come and teach the course to a group of people.

[00:25:30] Sharon: We are going to deploy as trainers within our organization, a teach to teacher model, that’s a different transaction and fee in addition to the license. So just have to decide, I always say, with the end goal in mind, who’s going to have access and on what financial terms that are going to be fair for you as the creator.

[00:25:50] Matt: Very good. an open ended question, Sharon. Do you see ownership of the content becoming more and more of a sticking point, between creators and organizations. As an example, it was funny, I usually think of this in context of, if I’m working for Google, anything I make at Google belongs to Google those type of relationships.

[00:26:19] Matt: But I was just talking to someone who works in our public school system. She is a teacher, she has created her own content for the classroom, and the district owns it. And that absolutely shocked me. I didn’t think of it in that small context of a local school, but that’s the way their contracts are structured.

[00:26:41] Matt: Do you see that changing in any way now with the tools to be able to create being so available and people being able to maybe take that with them? Do you see that changing on, that big level or also the small level as well?

[00:26:57] Sharon: I think you’re talking about a situation where the creator of the content was employed and was creating the work within the scope of their employment, while on the payroll of the employer. So under those circumstances, the employer is always going to own the end product. Likewise, if you’re a consultant or a coach, for example, and you’re engaged by an enterprise.

[00:27:20] Sharon: Like an Amazon or a Google to create something for them. The understanding up front is likely going to be that has a work for hire situation. And that as soon as you’re paid, they’re going to own the end product and they can do what they want with it. But content creators who are in the business of monetizing their content, whether it’s say as a digital course creator or as an influencer, always going to have first position when it comes to ownership.

[00:27:49] Sharon: And then it’s up to them to decide what they want to do with it after that. Do they want to assign it to a third part, basically sell it to the third party for a certain price? Do they build it once and they want to sell it many times? In which case it’s going to be a license or a distribution model.

[00:28:04] Sharon: And we’ve already talked about the influencer scenarios for content creation and monetization. So I don’t see that landscape changing. I think it’s very much of what I do see is with the increase in, remote work and the increase in independent contractor status of lots of folks, there being more of an open question about who actually owns it.

[00:28:26] Sharon: Was it actually created within the scope of somebody’s employment? Or was this a side project that the actual individual creator owns? or was it something that an independent contractor created? In which case there needs to be, a writing between the parties transferring the copyright to the brand that they’re

[00:28:47] Sharon: working for.

[00:28:48] Matt: So that would be more in the contract. That wouldn’t be defined by like a W2 versus a 1099.

[00:28:54] Sharon: It is,

[00:28:55] Matt: Okay.

[00:28:56] Sharon: is No, it’s exactly, if it’s a W2 situation and the work is created within the scope of the creator’s work for the organization that’s paying them, that organization owns that work. If it’s anything other than that, 1099, side gig, work, et cetera then you’ve got an independent contractor owner situation where the creator owns their work, unless the parties make a deal otherwise.

[00:29:20] Matt: Okay. Very good. Wow, that makes it so easy. That’s great.

[00:29:24] Sharon: You would think, but not in that much in day to day life.

[00:29:30] Matt: And because that was my next question. Sharon, what are some typical red flags or pitfalls when it comes to contracts?

[00:29:45] Sharon: And I understand how the confusion arises, you would think that if you pay somebody to produce a piece of work for you that you would own it. Because that makes sense in the commercial world, right?

[00:29:58] Sharon: When it comes to intellectual property, unless the person’s an employed individual and they work for you, they own their intellectual property. And that’s not something that seems logical to a lot of people. And so I understand the confusion, which is why we always take such great pains to explain the need to include that in a contract between the parties.

[00:30:19] Sharon: But, basic considerations for a contract between a content creator and whoever’s consuming that depend upon whether the relationship is an influencer relationship, whether it, again, it’s terms and conditions of use for a piece of content that’s been made once and shared many times. It’s very fact specific.

[00:30:39] Sharon: And so it would be, it’d be challenging to lay out all the elements because it really depends on what the end use for the content is.

[00:30:48] Matt: Absolutely, and that’s the thing. That’s why we need people like you, Sharon, is to cover so many of these areas that

[00:30:56] Matt: people

[00:30:57] Sharon: your lawyer some love, folks. Show your lawyer

[00:31:00] [00:31:00] Matt: I am not completely anti lawyer. There are, necessities and needs. And that’s one of the pieces of advice when I talk to entrepreneurs, it’s you need it.

[00:31:12] Matt: And these are things you can’t skimp on. You need a good lawyer, a great lawyer, and you need a great accountant. Those are the two things that you need to get started and those are two areas you cannot skimp on. So I am always up front with people about that, that you need to protect yourself legally and financially to make sure you’re doing things right. Oh, wow. So whenever something happens, regardless of contracts, they’re always, this is why we need people like you, lawyers, is to help, I don’t want to say litigate, but help mitigate some of the fallout when the contract just doesn’t, I don’t know, does the contract not cover everything or what is it that causes maybe contracts or agreements to fall apart most of the time?

[00:32:02] Sharon: I think that it could be a million things depending on how the party’s relationship proceeds. I think that, when the contract doesn’t capture the true meeting of the minds, of both people, or both parties, and, I think also when the parties don’t take enough time at the beginning of a relationship to think through

[00:32:28] Sharon: the end goal, and the steps that it will take to arrive at the end goal, the contract is likely to be missing more likely to be missing a necessary provision. And so, I think, again, you got to start with the goal in mind of what’s the purpose of the relationship. I like to say, start with a description

[00:32:48] Sharon: of the 3 days, the dollars, the deliverables, the deadlines start there and work your way back into the legal terms of the agreement, including the intellectual property considerations, because it’s very hard to know what legal terms are crucial sometimes if you don’t have those 3 days nailed down.

[00:33:08] Sharon: And so usually when a relationship breaks down, it’s because of some disconnect with 1 of the 3 days, either the money is a problem or the deadlines are a problem, or the actual deliverables, either quantity or quality. There’s a discrepancy about whether those are acceptable under the contract. So it’s usually one of those three D’s that falls apart.

[00:33:33] Sharon: And then you need the rest of the contract as your roadmap to decide what’s going to happen next.

[00:33:38] Matt: I love how you distilled those down into the 3Ds. That is fantastic. That’s so understandable. And I know from my experience, it’s typically not the dollars or the deadlines. It is the deliverables. Typically the hang up and from, I would just say from a lot of experience sometimes it’s the definition of the deliverable.

[00:34:00] Matt: It’s how one party sees the deliverable and they may be, they may have addressed that, but it’s definitions, it’s interpretations, it’s, when I said this, I meant this and getting into what these words actually mean. I think sometimes that is usually the main sticking point. Primary example, when I am teaching, I will ask people to define what makes an impression, what creates an impression.

[00:34:30] Matt: When we count impressions, what is it that makes it? And it’s really interesting because there can be 10 people in the room and 8 different definitions. Maybe yeah, and so if one of my deliverables is so many impressions, but the management has multiple definitions in their brain of what an impression is and that’s much the problem I see a lot of organizations Internally haven’t even come up with a clear definition of this is a deliverable and this is what it means and this is how we’re going to measure it and without that internally, when someone provides something and they think they’ve delivered based on what you asked for.

[00:35:13] Matt: But different definitions and interpretations can really mess that up.

[00:35:18] Sharon: it’s a good point and I agree that, in some cases, a common vocabulary needs to be agreed upon. and your metrics definitely need to be agreed upon when you’re entering into the relationship so that everybody’s clear on how are we going to define success? What yardsticks are we using to measure how close we’re getting to success?

[00:35:41] Sharon: Are we evaluating progress based on the amount of time we’re spending on something for you? Are we evaluating progress based on turning over a completed work that achieves the goal? Obviously this is highly dependent on the kind of service you’re delivering and the kind of line of work that you’re in.

[00:35:57] Sharon: But the more descriptive you can be about deciding what creates success and performance and the more you can incorporate that into your contract, the better, obviously.

[00:36:10] Matt: Oh, absolutely. I’ve just seen too many of these, relationships go south and it usually has to do, as you said, without a common vocabulary, without an understanding of what makes that deliverable happen and what goes into it. and do we both agree that’s the deliverable?

[00:36:31] Sharon: Right.

[00:36:33] Matt: There is a lot that goes into that. And that’s usually where I see companies. break things off, with their, whether it’s an influencer or creator. And sometimes I’m not a lawyer, but I get caught in the middle because I’m on the marketing side and now I’m getting pulled into these type of discussions that I would prefer not to.

[00:36:55] Matt: to

[00:36:55] Sharon: Yeah, I get it. Our clients are marketing agencies, and many times they are navigators between, the end client and some third party, whether it’s an influencer or a third party content creator. And so they’re in a rough spot because they are a ringmaster as much as they are responsible for making sure the project comes in on time on budgets, et cetera.

[00:37:17] Sharon: So it’s a tricky position to be in.

[00:37:20] Matt: Absolutely. And, yeah, I’ve even been a part where the creator is delivering as promised, but the company just didn’t implement it correctly. And so they judged the creator’s work to be insufficient when how they implemented it was insufficient. So there’s always interesting things that go on with that.

[00:37:43] Matt: But yeah, I love how you broke that down dollar deliverable deadline. I think that’s such an easy thing to remember and a great, place to start with that end goal.

[00:37:52] Sharon: Awesome.

[00:37:55] [00:37:55] Matt: So anything like anything else from a contract standpoint that creators as well as a company that’s thinking about working with a creator, you had gone back and talked about the brand, the sponsorship and the influencer, as three separate contracts rather than just one contract.

[00:38:16] Matt: Was there a reason for that? Yeah.

[00:38:18] Sharon: mean, it depends on the goal, the end goal of the work that you’re collaborating on. What I was trying to do is take an example of a content creation business and the various money streams, right? That they would experience one of which might be getting a sponsorship deal. One of it, which might be, customizing their content for a particular brand, et cetera.

[00:38:42] Sharon: Each of which is a different kind of obligation or responsibility, each of which is potentially a different kind of contract. So there really is, there’s a lot of creativity that you can, pursue in putting these deals together to monetize your content no matter what kind of a content creation business you’re in.

[00:39:01] Sharon: Our clients are marketing agencies and they’re in the business of, in many cases custom creating content for their clients who their clients own. And so they’re not building out their own brand necessarily. In the relationship on the client’s time, they are helping the client to achieve some specific business goal.

[00:39:25] Sharon: So that agreement is going to look very much different than an agreement between an influencer and a brand or a license between a course creator and an enterprise. It’s just, it’s very transaction specific.

[00:39:40] Matt: For a course creator, using, like a third party course website. I don’t want to name any, but if I choose to put one of my courses on an open platform where I can, everyone puts courses. And, one of the criticisms I’ve heard about that option, and I’ve seen it as well, is very quickly your content can get copied and remade, it can end up on different platforms, it can even end up on the same platform.

[00:40:11] Matt: Is there anything as a creator , steps that you can take, is there anything you can do to protect yourself? I think sometimes the platform itself is responsible, but sometimes I’ve heard they just don’t do anything about it.

[00:40:26] Sharon: Yeah. if you’re going to monetize your course that way, first of all, invest in copyright registration of the course, all the materials, the decks, the workbooks, the videos, the audio recordings, register all of it. And then secondly, review the terms and conditions of the particular platform that you want to use and, familiarize yourself with the extent to the extent of the indemnification you’re going to receive or help you’re going to get.

[00:40:56] Sharon: If somebody, steals your content off of their platform. And then I would say last familiarize yourself with the Digital Millennium Copyright Act, which is a procedure that you can use to actually go to the ISP where the infringing content is hosted and ask them to take it down on the grounds of IP infringement.

[00:41:21] Sharon: Now, it’s extremely important that you have taken the measures to protect your content if you want to prevail. On a DMCA takedown, but it’s not impossible and many times what it will mean is they will take the content down and the offender won’t repost it. In which case, you’ve gotten the conflicting content, off of the internet and, you can move on with your life.

[00:41:47] Sharon: But, it all starts really with being very serious about how you are protecting your content before you even splash it out on one of these platforms because they’re going to be a limited help to you and enforcing your rights against third parties and in most cases it probably wasn’t their fault that the content got lifted.

[00:42:07] Matt: No, yeah, I’ve learned that there is a significant business model in stealing content.

[00:42:14] Sharon: Oh, yeah, we’ve represented course creators who’ve seen their stuff splash especially on foreign sites So it’s challenging for sure.

[00:42:23] Matt: And even interesting, I created a course for another company. And yet I see that course being reproduced on different learning sites, different other companies that I know they don’t have a relationship with. So it’s surprising to me that they’re not even going after it. But yet at the same time, I don’t think they took the time to register a copyright on it.

[00:42:46] Sharon: If everybody has to make a business judgment about how important this asset is to their portfolio of assets as a business and the truth is, even though and in many cases, the IP is protectable. There are situations where it’s not integral. It’s not an integral asset to the company, and even as somebody who spends a lot of time on an IP soapbox, I have to recognize that every business is comprised of various assets and you use your resources to protect the most important ones first.

[00:43:21] Sharon: And sometimes assets don’t make the cut. You have to make that decision for yourself as a content creator and a business owner or an entrepreneur.

[00:43:30] Matt: Great, point. Yes, you can waste a lot of time and money going after your rights, but at the same time, is it worth it to do so?

[00:43:39] Sharon: Yeah. Only you can make that decision for yourself.

[00:43:43] Matt: Great point. Sharon, hey, thank you so much for taking the time to come in and add to our conversation and help straighten out a few questions about contracts, copyright, and some of the other things that we had here as well. Really appreciate the time. Do you have anything else to add to what we’ve covered to round that out?

[00:44:03] Sharon: My pleasure, Matt. No, I would just say that, I just spoke last week at the content entrepreneur expo. And so if you’re a content entrepreneur, I heard a lot of great presentations there and so I’d highly recommend you think about checking it out,

[00:44:18] Matt: Great.

[00:44:18] Sharon: next year in Cleveland, if that’s your business model, there’s a lot to learn there, and the content marketing institute also has a lot of good

[00:44:30] Sharon: virtual learning as well as an in person conference. So, about the business of creating content and monetizing it. Those are two good resources as well.

[00:44:40] Matt: I will link those in the show notes. Those are great, assets anyone should know about. And I might check out the content entrepreneurship as well. Being not that far away from Cleveland.

[00:44:51] Sharon: Exactly. So

[00:44:54] Matt: Sharon, thank you so much. This has been so helpful to me and to the listeners. We really appreciate your time coming in and talking with us.

[00:45:01] Sharon: My pleasure. Thanks for having me.

[00:45:03] Matt: All right. Thank you, Sharon. And thank you, dear listener, for tuning in to another edition of the Endless Coffee Cup podcast. I hope you got through a cup or two of coffee in this discussion, and I look forward to sitting down and talking with you again.