Wow, what a Rise & Design.
Anoo Vyas came by and let us pepper him with a million questions about law stuff. And let’s be real, “law stuff” is about as comfortable as we all are with the legal world. It's...stuff...
Luckily for us, Anoo was a natural teacher who patiently answered our questions and quelled some of our fears. Anoo is a brilliant business lawyer and current Co-Director of Center of Experiential Learning at the University of Akron. He also sports some really great socks.
The big lesson?
Contracts are all about power. The whole Rise & Design was discussing how to negotiate that power in order to protect yourself and your creative work.
While trying not to freak out about all the information I was learning, I (Anna Hetzel, conversion copywriter) took furious notes. Because this stuff is gold.
I used "I" in the recap below even though it's not what Anoo said verbatim. I took drastic liberties in an attempt to synthesize the information.
NOTHING in this blog post should be considered actual legal advice.
Ok, got that out of the way.
Anoo introduces himself
First, thanks for having me here. I know I’m not a ‘typical’ creative, but there is a lot of creativity in law. There are legal arguments, nuance.
And I’m trying to write a novel and it’s really frustrating. I have such admiration for all of you.
A little bit about me before we start with questions. I’m a business lawyer who used to work in corporate law. I’ve represented quite a few startups. I also represented Obama/Biden in their 2008 election. Now I’m doing a lot of teaching and I absolutely love it.
What is your day to day life like? Law and Order? Boston Legal?
So my first time in court I was nervous. The witness got up on the stand and said completely the opposite of the truth. I yelled “Objection, Your Honor!” The judge just looked at me and asked: “On what grounds?”
So besides that incident, I would say my life is more like Boston Legal! What a fun question.
What exactly is internet law?
Let’s start with an example.
Think about the EU. They have very different views on and laws for privacy than we do in the US. For example, they have the “right to be forgotten” on the internet. Can you even imagine that here?
Here’s another example.
Say you are a company in Ohio who is selling a product online. Someone in California buys that product and finds it defective and they want to sue. They could sue you all the way out in California and not only would you have to cover litigation costs but you’d also have to travel.
A quick fix is having terms of service proviso saying that if someone sues you, they have to sue you in a court in xyz county, Ohio. This will probably disincentivize 99% of litigation because the person in California would have to travel instead of you.
Regardless of if you are selling products online or not, put this in your contract! Make it clear where you are operating from and where a client has to file if they want to sue.
What are the 3 bigs things you recommend entrepreneurs to focus on?
Form some type of company. 99.99% of the time that’s an LLC. This separates your personal assets from your company’s assets. If something goes terribly wrong and a client sues you they could go after your home, your car, your savings unless you’ve protected yourself with an LLC.
Have a great contract that lays out terms of the deal. But first, you need to understand the terms of the deal. Lay it out clearly. Don’t have a contract that is 15 pages long. Make it short, clear, and to the point.
Make your contract tailored to your situation. Think about how you normally interact with clients, what the pain points are, and articulate them to protect yourself. Put a clause in there about backing out of a contract, intellectual property, county for litigation, etc.
Who owns the copyright on our work?
Section 102 of the law lays out the rights you have as an author if you want to get technical about it.
But really if you author something, that means design, write, create, paint: you hold the rights to the work. You have the right to reproduce, to make copies, and no one can make something that is substantially similar.
Now no one quite knows what ‘substantially similar’ means, but they are figuring that out in the courts right now. You know that suit between Samsung and Apple about rounded corners on their smartphone? That is discussing ‘substantially similar’ issues.
But be sure you get ahead of this. Read over contracts carefully because some companies will put their contract that they own everything you create. You could say in the contract that you own the copyright but they have a license to x y or z with it.
The main point is this: whoever creates it owns the copyright. And copyrights start as soon as you put pen to paper.
What if you are an employee? How does that impact copyright law?
This depends. Again, really read your contract. There are some contracts you sign as an employee where the company owns all of the work you created within the scope of your employment. That means projects for your job, things you create during working hours, and the like.
But be careful. Some contracts sneak in a clause where the company owns everything you create, whether it be in your free time or at work.
The lesson: read your contract.
What is the default definition of employment?
Really try and avoid nebulous definitions and be sure that in the contract anything you produce in your off-time is yours.
The default is that any work done within the scope of your employment is owned by the company.
Be super careful about intellectual property in the contracts. Read through your contract carefully because the employee’s contract will probably be overbroad.
What if we’re in production. Our job is to finalize the work. Who owns that?
Great question. If you ask via email who owns it and put something in writing, that is a contract. It all depends on the situation though.
What if the client wants to own the work?
If the client wants to own the copyright to the work, they should pay you for that ownership. The key, as always, is negotiation and situation. A couple options are to negotiate that they own the copyright but you have the right to publish it and put it in your portfolio.
If you let the copyright go, charge for it or negotiate exclusivity in that industry. For example, if you have a great design or illustration you could never use it in the same industry as the client, but you could in a totally unrelated industry.
Contracts are all about power.
Can you give us some big ‘red flags’ that signal we are about to be screwed over by a contract?
Intellectual property- really look at who owns it.
Make sure the right parties are in the contract. Be sure you protect yourself through an LLC and that LLC is the name on the contract, NOT you.
The indemnification provision- this one is really important. Basically what it says is that if something goes wrong you’re on the hook to cover the damages, regardless if it’s your work or not that is the problem. It could be anything in relation to the project.
Some also have a ‘defend’ provision, which means if there is a lawsuit that occurs you will have to pay the defense in that lawsuit.
The basic line here is not to “trust but verify.” Don’t trust and verify! Massage that fine line.
Or better yet, come up with a standard contract that you present to the client. Control that conversation. Contracts are all about power.
Help us understand Non-Compete Clauses.
A non-compete clause basically says that you can’t work for anyone else in a particular industry. That’s the ‘basically’ answer. Be really careful and read them through because you don’t want them to be overbroad and halt you from working on any future projects. Read them and ask the company!
How do you not paint yourself into a corner when signing a non-compete clause?
The short answer? Don’t sign it.
The long answer is if you do sign it put in a proviso that says something like “my style is going to change in two years.” Have a very frank conversation with the client to limit the non-compete to a particular industry, geography, or types of medium.
What is the difference between copyright and trademark?
Copyrights protect a creative endeavor.
A trademark prevents consumers from being confused. For example, I can’t open a shoe place called “Nikey” because consumers would confuse it with the brand “Nike.”
A trademark can be a made-up word or a word that gains a second meaning. If I open “Anoo Vyas” as a designer and over the years my studio gains traction and ground, people will start to recognize Anoo Vyas not as me, but as my design studio. That is grounds for trademarking.
Both are determined by nations, not worldwide.
**Anna’s note: think of the fashion industry here and all those designers who have brands named after them.
How do you suggest we make a custom contract if we don’t have the ability or funds to hire a lawyer?
Find a clinic - some schools or organizations have clinics to help with this on the cheap. I would suggest saving up and hiring a lawyer to help create a standard contract for you.
Downloading contracts online could work, but please read through them carefully. If you don’t understand what they mean, don’t send it.
Contact Anoo: Hit Anna or Yao up on the Rise & Design slack for Anoo's contact info!
Local small business lawyer: Brad Miller