Introduction

Welcome to the Simplifying Legal podcast, brought to you by Businessese. I’m your host, Danielle Liss.

Many years ago, someone told me I was the least lawyer-y lawyer she’d ever met because I helped make legal easier to understand. To this day, it’s one of the best compliments I’ve received in my professional life.

If you’ve ever felt legal was too scary, too overwhelming, too complicated, or just plain incomprehensible, you’re not alone. The Simplifying Legal podcast was created to help. 

In each episode, we’ll do a deep dive into a legal topic and give you concrete next steps so you can apply it to your business. 

My goal is for you to walk away from each episode thinking, oh, that was easier than I thought it would be.

Let’s get started. 

Episode Content

Hey there, I’m Danielle. Welcome to episode 21 of Simplifying Legal for Small Business Owners. Today, we’re talking about steps you can take to protect your content. 

Disclaimer: As always, before we get into today’s topic, a quick disclaimer. This podcast is meant to provide you with legal information only. It’s not legal advice and does not create any type of attorney-client relationship between us. Please don’t take any action without consulting your lawyer first. 

Now, let’s get into steps you can take to protect your company’s content. 

I have the pleasure of serving as the legal coach for Six Figures Lab at BizChix. Today’s topic is something that really grew from conversations I had there. And, as an aside before we get further into this, if you haven’t listened to the BizChix or Stacking Your Team podcast, I strongly encourage you to download them. They have so much great information for building a successful business. 

Okay, so now let’s focus on content. To attract clients online, you’ve probably heard all of the the experts say that you need to create regular content. You know, blog posts, social media, video, etc. So, you spend the time, you get creative, and you put content out into the world that reflects your business, your strategies, and your creativity. This is potentially part of your brand’s intellectual property, so how can you protect this asset? 

In this episode, I’m outlining five steps that will help you protect your content. 

Consider Your Content

Step 1: To best determine how to protect your content, first you need to consider the type of content that you are posting and what type of rights you have in that content.

Typically, copyright rights are the legal rights at play when the content you publish on behalf of your business. 

Copyright

What are copyright rights?

The US Copyright Office defines a copyright as “a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.” The key pieces are that, first, there’s an original work and, second, it’s fixed in a tangible medium, such as a photo, a written content, or a video.  

 Copyright owners have several exclusive rights. You can: 

•       Reproduce the work; 
•       Prepare a derivative work based upon the original work; 
•       Distribute to the public by sale or another type of transfer; 
•       Perform the work; and, 
•       Display the work.

Does your content include copyrightable material? In other words, is it an original work in a fixed tangible medium? 

For example, if you publish a lot of content with memes, that isn’t likely your original content, so it wouldn’t be copyrightable and may be more difficult to protect.

When we consider the copyrightable content created by most business owners, it usually takes the form of:

•       Written content, like blog posts, pages on your website, ebooks, or lead magnets
•       Images, like graphics or photos
•       Recorded content, like audio or video recordings

As a business owner, it’s important that you know what kind of content you are producing and the rights you have in that content. Consider the types of content you create, what is copyrightable?

Know Your Contracts

Step 2: When it comes to your content, you need to be aware if there are any contracts that you’ve entered that might impact your rights to your content.

Client Agreement

First, let’s talk about your Client Agreements

If you are a service-based business owner and you work with clients, do you provide any of your content to your clients? If so, does your client agreement state what rights they have to use your content? If it doesn’t, this is something you may want to add.

Here’s a sample of what that might look like: 

All original materials provided by Company to Client are owned by Company and are provided for Client’s individual use only. Client is not authorized to use or transfer any of Company’s intellectual property. No license to sell or distribute is granted or implied.

Ensure your client agreements are clear as to your rights in the content and as to what limited rights your clients have in using the content.

Terms and Conditions

Next, look at Your Terms and Conditions

If you publish your content on your website or if you sell your content, what do your terms and conditions say? Similar to a Client Agreement, your terms and conditions should state that you own the content and describe the rights you are granting to the viewer.

If you publish content like ebooks or lead magnets, include a copyright reminder and information on how they can use your content.

This language will look similar to the grant of rights in the example above.

Content Agreements 

Next, look at any Agreements you have with Content Creators or contributors

Do you have any third-parties creating content for your company? If so, whether they are employees or contractors, is it clear on who owns the content they are creating on your behalf? This is something that should be addressed in your agreements.

Remember, copyright rights vest in the creator of the content, unless an agreement provides otherwise, so it’s important to include ownership language in your agreement with the content creator.

Common ownership language includes:

•       Work for hire – Company owns the content created on its behalf.
•       Assignment of rights – The copyright rights are assigned by the creator to the company.
•       License to client – Creator retains ownership of the content but allows the company to use it in a certain way. Be cautious, since the types of use may be limited… Additionally, in some circumstances, the creator may also be able to continue using the work and it wouldn’t be infringement on your rights. 

Employees will typically be creating things as a work for hire. However, this language can vary if you work with contractors. Make sure your agreements with your content creators are clear as to who owns the content and how each party can use it.  

If you want more information on content ownership provisions in contracts, check out Episode 13. 

Third-Party Websites and Services

Next, look at terms for Third-party Websites and Services

If you post your content on websites or apps hosted by other companies, take a look at their terms and make sure you understand what rights they receive to your content.

Stock Photography Agreements

And, finally, look at any agreements you have for Stock Photography

If you use stock images in your content, please review the terms of your agreement so you understand your license. Remember, this is your contract with the service and you need to ensure that you are aware of what you can do with the image so that you don’t receive a cease and desist letter for using the content incorrectly.

Educate Your Audience

Step 3: It is important to ensure that you are educating your audience on your rights and how they can use your content.

One of the easiest ways to assert copyright rights is to include a copyright reminder. Use the copyright symbol, year, and the name of your company.

If you post images online, consider adding a watermark for your company. Or list your company name somewhere on the image. Just be warned, sometimes, people will try to crop the company name or remove the watermark.

As mentioned above, this is also something that should be built into your terms and conditions too. Be clear about how your audience can use the content and reserve your rights.

Create an Intellectual Property Strategy

Step 4: If content is an important part of your business, what is your strategy for protection? As always, a strong legal strategy should be part of your overall business plan.

Things you can consider:

1.     First, Do aspects of your content that represent your brand? This might be a name, phrase, or logo. If so, you may want to consider trademarking these.
2.     Next, if you create copyrightable material, how are you using it? Have you included a copyright statement? Are your terms and conditions clear regarding both your rights and usage? Does your audience know how to use that content?
3.     Next, What do your agreements say about content? What can you add to these agreements to add protection for your content?
4. And last, If you have copyrightable content, should you consider filing for copyright registrations? Upon publication, you, as the creator,  automatically receive copyright rights in the work. Copyright registration gives you a public record of your ownership and a presumption of ownership in the event of a dispute. Additionally, if you get to the point where you need to file a lawsuit, you need to have your copyright registered.

Just like any other asset in your business, set a strategy to protect that asset.

Monitor Your Content

Step 5: Once you have an intellectual property strategy in place, it’s important to monitor your content for potential infringement. This allows you to protect your rights in that content. 

If your business has trademarks, it’s important to monitor those trademarks and ensure you are defending against any infringement. If you used an attorney to file your trademark, ask them if they offer this service in-house. If you aren’t using a formal trademark monitoring service or your attorney, it’s important to make sure you at least have a google alert set to review the uses of the trademark.

To check to see if someone has copied your images, you can go to images.google.com and then click Search By Image. You can also do this type of search on TinEye.com. Some image-heavy businesses will use a service like Pixsy to ensure that their images are not being used inappropriately.

Next, if you’re monitoring, what happens if you find someone using it? If they are potentially infringing on your rights, you should reach out to address it.

Often, this will start with a simple outreach from your business to the person who is using the content.

I usually keep these fairly casual and try to be friendly. Here’s a sample message for something like images used on social media: Hi, I’m the owner of XYZ Business. We are the owners of _______. I recently saw that you posted our copyrighted content on your channel. GIVE DETAILS ON THIS. I am hoping that we can resolve this amicably and I am asking that you remove the content. Please let me know if you have any questions.

Sometimes, it is an innocent mistake and can be quickly resolved with a couple of messages. It is important to give details so they know exactly what you are talking about and don’t disregard the message. Screenshots are particularly helpful for this, both of your original content and their unauthorized usage.

If they do not respond, you may want to escalate it to something more formal. If it happens on social media, you may be able to report it through their platform. Both Instagram and Facebook have forms where you can report infringement. 

If someone has used your copyrighted content and they are not responsive to your outreach (or you don’t have their contact information), you may be able to send a DMCA takedown request. DMCA stands for Digital Millennium Copyright Act and it was enacted to help copyright infringement online. A takedown request is a letter or notice that has specific information in it and requests the removal of the content. This can be sent to the website’s host, internet service provider, or search engines. 

If you haven’t been successful in getting the content taken down with the steps listed above, this is when it is probably a good time to reach out to a lawyer. It may be that you need to send a formal cease and desist letter regarding the infringement, or you may want to explore other legal options, such as a lawsuit.

Action Steps

For today’s action steps, let’s quickly recap each of the steps we’ve talked about today: 

1. Consider what type of content your business is publishing. Have you considered the best way to protect it? 
2. What information is included in your agreements about how to use your content? Do you need to make any adjustments? 
3. How do you alert your audience to your rights in your content and how they can use it? Do you need to make changes? 
4. Do you have an intellectual property strategy? This is an important part of your overall legal strategy. For more information on legal strategy check out episode 7. 
5. Are you monitoring your content to ensure no one is infringing on your rights? 
6. And, last, as always, if you are not sure about the best way to protect your content, please reach out to a lawyer. If you are interested in discussing strategy, I offer strategy sessions through my firm Liss Legal. If you’d like more information, check out lisslegal.com

This wraps up our discussion on steps to protect your content. Thanks for joining me. 

I’d love to connect with you outside of the show. Visit Businessese at businessese.com. To find show notes for today’s episode, visit businessese.com/podcast.

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Thanks for listening and we’ll continue Simplifying Legal on next week’s episode.