Thank You To

TRANSCRIPTION  of Chapter 11 of Season 2

Brandi Sea  0:10  

Welcome to Design Speaks Podcast. The podcast that helps you discover uncommon inspiration, take control of your creativity and create work to get noticed. I’m your host, Brandi Sea. Joining me is my co host, Julie Haider. This week, we are talking to a lawyer for creatives: Allie Moore, about contracts and what you need to include. So stay tuned for that coming up later in the show. Hi, Julie. Hi, Brandi.

How’s it going today?

Julie Haider  0:43  

Good. I’m excited!

Brandi Sea  0:45  

What, what are you so excited about today? Because I have so many questions for our guest.

Julie Haider  0:51  

Yes, our guest today is Allie Moore. And I’m super excited to talk to her because she happens to be my lawyer and the person who has saved me a lot of stress.

Brandi Sea  1:05  

I feel like I’m going to feel a lot of business owner guilt after this conversation, because I do not have a lawyer and I’ve been running my own business since 2012. So I’m probably in trouble somewhere.

Julie Haider  1:19  

I definitely feel you there. That was me for a long time. And honestly, when I thought about, Oh, I need to talk to a lawyer about my contract. I was like, man, they’re not gonna understand what the heck, I do much less be able to help me figure out what all I need to have in my contracts. And then someone said, Hey, you need to talk to Allie. And I was like, Okay, I was sold, sign me up.

Brandi Sea  1:43  

Awesome. So who is Allie and go ahead and introduce her? Yeah. Okay. So the people on video, she’s just patiently waiting, waiting for us to introduce her. Yes.

Julie Haider  1:56  

So Allie is one of the lawyers at Creatives Learn Law, and she works in Colorado, and she is a creative herself. So she understands that we’re a little different. Yeah. And yes, so I’m excited to hear what all she has to say today. So hi, Allie. 

Allie Moore  2:19  

Hi. I’m so glad to be here.

Brandi Sea  2:21  

Welcome. It’s so nice to meet you. 

Allie Moore  2:24  

Nice to meet you too, Brandi. Thanks for having me.

Brandi Sea  2:26  

I love that you’re also in our region.

Allie Moore  2:29  

Yes, I’m here in Denver.

Brandi Sea  2:30  

We share a border. So you know, we are not Mexico.

Allie Moore  2:34  

Yeah. No, I also know that the food gets a lot better. When you cross from Colorado into New Mexico.

Brandi Sea  2:39  

It does. It does. Yeah, we have better Well, we have New Mexican food and you guys only have Mexican food. So we’ll just start there. I will say that when Julie said that you are a lawyer for creatives. That is exactly what we need. Not that a I’m just gonna say, I don’t know, a basic lawyer. It wouldn’t know the questions that we are going to ask. But I agree with Julie that it does help because we are a special breed. Yeah, as a creative. So first of all, I would like to hear your your elevator pitch. I would like to know what you do as a creative and how you ended up as a lawyer for creatives.

Allie Moore  3:23  

Yeah, so I’ll start with my story, which is that I was a wedding photographer and a portrait photographer long before I went to law school. We opened a photo business, we being my now husband and I in 2010. And I used that income to put myself through the last year of undergrad and I went to grad school in law school, and worked running this wedding photo business throughout. And I thought that I would become a lawyer when I graduated law school and I would lose my wedding photo business. But I couldn’t let go of running my business. So I immediately after law school, I worked here on our State Supreme Court and then I worked in our state Attorney General’s office. And I just was enjoying running my own business more than I was enjoying being a government layer. So I quit full time work when my daughter was born. And I thought that I would maybe try to build a full time income out of our wedding photo business, but my heart wasn’t quite in it. I knew I wanted to be an entrepreneur. But the photography industry is really saturated. You have to be very good at marketing. And I have to be honest, that is not my style.

Brandi Sea  4:38  

Creatives are strategically or creatives are usually not great at marketing themselves. Yeah,

Allie Moore  4:45  

And in an industry like that. You really have to be Yeah, I’m so but I realised I had all these fellow photographers and other people in the creative industry that would ask me their contract law questions and I would kind of give them an information, but also disclaim the heck out of it and say, I’m not your lawyer, I don’t have, I don’t represent you. And the only reason that I couldn’t represent them is because I didn’t have malpractice insurance. So one day, I talked to a professional mentor, and I went out and bought malpractice insurance. It was not as crazy as you might think, it was $500 for a year. And now it’s closer. That was like an introductory special now it’s $1,000,

I would have thought it was at least $50,000 definitely, just how much I know. Li e, did you have to take out two home loans? 

No. This is actually a good lesson that insurance, maybe you should at least investigate the price before you decide you don’t want to buy it. 

Brandi Sea  5:45  

Yeah.

Allie Moore  5:46  

Maybe it’s more affordable than you think. So you bought the insurance, I bought the insurance and I opened my doors. And that was in May of last year. And I thought if I can serve two clients, then I’ll have you know, earned a profit above my insurance. And I served a lot more than two clients. And I added a partner this year. And it’s it’s just exactly the right fit. It’s exactly the right work for me. So most of what we do is contract drafting, helping people write the contracts that they use with their clients. But we do a little bit of dispute management for people who have client disputes. And we do help people for an entity sometimes. But yeah, all those business law issues that come up in small and unregulated businesses, so we don’t do marijuana law or anything like that.

Brandi Sea  6:33  

Okay, okay. Just so I know, I won’t ask about that. I was planning on it. But um, so Julie, just cut in, because I could easily just take all the time with all the questions I have. So I’m curious. What is the primary question that people ask when they first come to you? So maybe they think that they need a contract? So do they just come and ask for a contract? Or do they come with questions about copyrights? Or you know, what is for for creatives in general? What is the most common question that you get asked that you wish people would know? That’s like, pretty easy to answer?

Allie Moore  7:19  

Absolutely. Super easy for me, because Brandi you almost asked it by implication, which is that most people come to me. I’ve never hired a lawyer before. And their question is, what am I doing wrong? What have I been ignoring? 

Brandi Sea  7:31  

Am I going to jail?

Allie Moore  7:32  

Yeah, exactly. What do I do?

So this is what I tell people. There’s there’s four things that I think everybody should do to protect themselves from liability. And it’s four pretty manageable steps. Its form a limited liability entity. So for most people, that’s an LLC, it’s get contracts that work for your business, and that are reflective of your business policies, and buy insurance, appropriate insurance for your industry. And then act reasonably and take calculated risks. The bonus fifth thing that am I going to jail thing is figure out your taxes, right, figure out your taxes. If you’ve done those five things, then you’ve probably checked all of your boxes, if you’re in, like I mentioned, an unregulated industry, if you are a hair and makeup artist or something like that, where you have a state regulator, you also need to do those regulatory things. But for most creative small businesses, if they take care of those for liability protections and their taxes, then they’re not going to jail, and they’re not going to lose their home. And they’re doing what they need to be doing to take care of their businesses legal issues. 

Julie Haider  8:40  

Okay. Looks like now when I when I came to Allie, I had a contract that I’d had employees for many years, and I had been kind of piecing it together and, and something would come up and I’d be like, ooh, I need to add that to the contract. So I had something in place. But I came to Allie. And I was like, What am I missing? And what do I need to, beef up? You know, and that was really helpful, and also very timely, because now with all the pandemic, stuff like that adds a whole other set of things. So I was thankful for that. But so Allie, what do you feel like it’s something that a lot of times people accidentally, like they just don’t even think about putting and I know, I know, we’re talking about anywhere from photographers, to illustrators to whatever, you know, all kinds of creative things, but what’s something that people tend to just not realize that they need in there?

Allie Moore  9:38  

So I think the thing that’s most often overlooked, like people do a good job, like you mentioned, Julie of adding those business policies to their contract after they get burned by a client.

Brandi Sea  9:48  

Oh, I probably should have had that in there.

Allie Moore  9:50  

And now I do.

But people don’t always do a good job of thinking about the liability, like the personal injury liability. And if I deliver services in person, I need a liability waiver. There’s this provision that is maybe my favourite provision for service provider contracts called a liquidated damages provision. liquidated damages is like the worst name.

Brandi Sea  10:14  

That sounds awful. I don’t know what it is, please explain.

Allie Moore  10:19  

It’s not as complicated as the name suggests. But it’s that clause that says, If I mess up, whatever it is, I’m doing for you, whether it’s a website redesign, for wedding photos, if I mess up, then the maximum damages are going to be what you paid, I’m not going to be responsible for, you know, for wedding photographers, if you sue me, I am not going to recreate your wedding, I’m not going to spend $30,000. So you can have a new wedding and get new pictures. If you’re a designer, I’m not gonna be responsible for lost profits, we’re gonna, in liquidated damages, provisions have to be reasonable, and they have to help resolve some uncertainty, but they’re a really good tool to explain to your customers that what I’m on the hook for is the services I provide. And I’m not going to be on the hook for these other things that you know, are emotionally connected to the services I provide, or that are impacted by the services I provide. 

Brandi Sea  11:11  

That makes sense. So I have sort of an adjacent question. How do you so and maybe this is just a person to person thing, but in my experience, people don’t ever even really read this stuff, right? So I had, I mean, I’ve I’ve had like Julie I’ve been, I’ve pieced together my current contract. Um, from stuff I found online, from an online like, pay a lawyer for something quick thing, and then adding my own. Oh, crap that just happened, I should add that in stuff. And so when I had a client at one point, they did not. We worked and worked and worked. And they just decided that even though we had agreed on the direction, when it was done, they wanted me to do something different. And in my contract, I had that that’s fine. But what I quoted you is for the work that’s been done, and you will have to pay X amount of dollars percent of the project or whatever, to continue exploring a new direction. And they fought me on it until I said, I’m sorry, like it’s in the contract. And then there was another conversation of Well, you didn’t point that out. And it was I was, I just wasn’t sure. I wasn’t sure. Like, I knew that it was legal and binding they had signed off on it. But then it kind of made me feel like am I being sneaky? Because I didn’t read them every single section of this thing. And go, Okay, here’s, like 50 sections. Let’s sit down. And I’m going to be like, your second grade teacher and explain every single like, so is there any like tactic to to make sure that you are like encouraging people, because you you get it signed? You get it back? You’re just assuming they have read the small print, but we don’t always read the small print. So like, is there is there like a good tactic to help make sure that people understand what they’re getting into without sitting there and holding their hand?

Allie Moore  13:16  

Yeah, yes, I sort of need like sceptical face when you were talking Brandi, because I just can’t believe that someone would say that to you that it was your responsibility to make sure they were closely reading, I do set expectations in a really clear way is so important to the way that you provide customer service. And so not important to whether or not your contract is legally binding. So the suggestions that I have, though, to make sure your customers have a good experience is if you use a client relationship manager and you have canned emails, the longer that you’re in business, the more you sort of know what policies surprise people, and what policies are an important part of the client expectation process. And those policies should show up in your canned emails, at the relevant points in the process. So like examples are when you as a designer, or a photographer, give deliverables to a client and you’re emailing them the link to where they can download their deliverables in that canned email provisions about what they can and can’t use those deliverables for like the IP reminder those right. 

Brandi Sea  14:25  

Because that’s in that’s in most creative contracts, like yeah, IP stuff is in there. But yeah, not putting, adding that extra level of I know you signed the contract but also here it is again.

Allie Moore  14:37  

Yeah, that’s Yeah, like early on in the process, you can send reminders about these, you know, the revision process is x y&z or the editing processes. Um, on the other hand, I also just want to say Brandi that no matter how reasonable we are, or how thorough we are in our contracts and our client communications, there are going to be people that just aren’t on the same page. 

Brandi Sea  15:04  

They just don’t want to pay.

Allie Moore  15:07  

Or they just like ours, I don’t know, there’s somewhere else they aren’t reading. I was I feel bad. Like, I don’t read the might, you know.

Brandi Sea  15:14  

I know. I can’t blame you. But also I sort of blame you.

Allie Moore  15:18  

Yeah. But so sometimes like, we have to accept that there’s just going to be a certain number of clients that are going to be difficult. And we can like do a really good job in our contract of trying to address all the common scenarios. But it’s not a foolproof system, there are still going to be people that sort of slip through the cracks and make your life difficult, or make your life difficult to phrase the contract. But the other tool I’ll mention for drawing people’s attention, if you can use those initials, initials boxes, those don’t make anything more or less enforceable, but if you ask your clients to take the time, so like, when I work with photographers who do in person sales, I highly recommend that they have their clients initial align that says, I understand my package does not include digital images, or I understand that I don’t get personal use rates for the digital images, my progress, because you don’t want a client to get their gallery and then realise they have to spend another 1200 dollars and to be shot, right? That’s a bad.

Brandi Sea  16:13  

Yeah, I always make a point to have. Not only what you get, but what this quote does not include.

Allie Moore  16:21  

Yes.

Brandi Sea  16:22  

It’s not checkboxes like that they sign off on which I think is actually a really fantastic idea. Because I often wonder, like, are they even looking at this last page? Are they just going, quote, sounds good? Looks good. I’m getting all that stuff. Here you go, here’s your money. And that’s fine. I want your money. But also, I don’t, I don’t want you to feel like I am taking advantage of you. Like we’re collaborating here.

Julie Haider  16:46  

Yeah, Allie had me put the initials in, specifically with the date and location for my elopements that way, there’s no confusion of they accidentally typed the wrong date in and I put it in the contract and they didn’t pay attention.

Brandi Sea  16:59  

You would like show up on the wrong day and be like, where are you?

Julie Haider  17:02  

Yeah. 

Brandi Sea  17:04  

Oh, I thought you meant Phoenix, Texas. Arizona. I don’t think there’s a Phoenix Texas. I definitely don’t.

Allie Moore  17:14  

There’s another thing that’s good is gonna be in Texas.

Brandi Sea  17:18  

There’s a Paris Texas, right? Exactly. Yeah, Rome. Must be where I got that from. So I am a solopreneur. I think I’m a sole proprietor.

So could you just like, give like a brief overview of of like, the categories that a, like a creative entrepreneur generally falls and so that people even just get maybe they’re starting out like they’re just going freelance, especially with with like COVID and stuff, a lot of people are leaving, like their office jobs and just going you know what, I think I’m just gonna do this on my own from home, what’s like a good first step to kind of like solidify your place legally, as a creative professional.

Allie Moore  18:01  

So depends on your State’s, in, in your your city. But if you just you know, decide you’re going to become a consultant, or you’re going to open a creative business and you start doing business, then you become a sole proprietor. And as long as you don’t have a law that requires you to have a business licence, just a general purpose business licence, either in your state or in your local, county or city, then you can do that you can just start doing business, and now you have a business. Um, so so you want to check to make sure you don’t need a business licence. And then if you don’t need a business licence, the thing to consider is forming an LLC. So an LLC is created with the Secretary of State in your state. In Colorado, it costs $50. In the most expensive state, I think in California, it’s upwards of $500. But it’s typically just like, you know, I think in New Mexico, I’ve maybe 100 between one and $200. There, it’s not too expensive to form an LLC. And what that does for you, is it creates a layer of separation between your business and your personal assets.

Brandi Sea  19:09  

So they couldn’t take my house if they feel like I caused them to crash their business with a bad logo. 

Allie Moore  19:16  

Yes, in the most general level, that’s exactly why you form an LLC, I say at the most general level, because it’s not magic. So we’re all responsible for our individual actions. So the most expensive kind of lawsuit that I worry about for my clients is a personal injury lawsuit. Like where you make a mistake and someone ends up injured because you did something. negligence, right, something that was not in line with what people were expecting you to do, like they trip and fall. Even even if you’re a graphic designer, but you have an office and you spill coffee on the floor and they trip and ball or you as a consultant are responsible for a file with your clients client list and that gets hacked or leaked. Viewed as a person, we’re supposed to protect it and you didn’t, because they could sue your business and you and your individual capacity. So that’s why we also carry insurance. But where an LLC is helpful is contracts when you sign contracts on behalf of your business. And you have an entity, I use LLC, because it’s the most common entity for small businesses, but corporations, there’s limited liability partnerships, there are a lot of other limited liability and just use but we’re going to assume you have an LLC, because that’s really common. So if you have an LLC, and you sign a contract on as your business and leader, you breach that contract. So a lease is a really good example, if you were allowed to sign a commercial lease as an LLC, with no personal guarantee from your business, and then you have to move out of your commercial space before your lease has expired, and you’re not going to pay anymore. You only want your landlord to be able to get your business assets right, not your home. So that’s an example of when an LLC is really helpful. When wedding vendors right now that are having to cancel just a tonne of client contracts, if they need to close their doors, then the refunds stop when the business is out of money, instead of you know when their personal savings and house are gone.

Brandi Sea  21:12  

Right and having to file bankruptcy and all that. Yeah, crazy. Yeah. Yeah, that’s interesting. So, so freelancers are generally sole proprietor or like LLC is like the best avenue. What is the difference between the LLC and the, you just say like a corporation?

Allie Moore  21:30  

Yeah. So there’s two, when people talking about a corporation, there’s a state law corporation. So that’s you’ve created a corporation with your secretary of state, people usually do that, because they want investors and they want to sell shares. And you can sell parts of your LLC, no problem. But investors like corporations, because they’ve been around for a long time. And the law is really predictable. LLCs are new and really flexible. So when you’re when you’re like seeking venture capital, not a concern for any of my clients, but but maybe maybe you have a really great app that you’re developing, and you think you want venture capital Corporation is usually the way to go. But then also, when people talk about corporations, they’re often talking about an S corporation. And an S corporation is not an entity that you form with your secretary of state. It’s a tax filing status. Yeah, so you can be an LLC, and make an election to be taxed as an S Corporation. And that is very common. And it’s a good financial strategy for a lot of creatives. If I’m not boring you, I know you’re not okay, I can explain who benefits from an S Corporation. But I also recognize that, like I teach at the law school, and as corporations are like, my last favorite topic.

Brandi Sea  22:48  

Yea no, that’s okay. I just, I just want there to be a real basic understanding. And we may just have you on again in the future, because there is a lot to talk about. But I think that it’s important for just at the base level to understand like, Okay, I’m a freelancer, what to like, you know, instead of just saying, Here’s your one thing, you should probably just go get an LLC. They can look into, you know, I could be this or this, obviously, there’s more than just those two, but even just as a starting point, if those are the most common if those the most easy to understand and stuff like that. That’s like a good starting starting spot.

Allie Moore  23:28  

Yeah. And what I will, what I will add, because I find it really helpful that a couple like CJ and bookkeeper friends have said is, when you’re earning $50,000 a year in profit, you should start talking to a CPA about making an S election. Before you get to that, don’t worry about it.

Brandi Sea  23:45  

Okay. That’s really good. Yeah,

Julie Haider  23:47  

yeah. Yeah.

I think brandy has some questions about copyright. Yeah. Okay,

Brandi Sea  23:55  

I have, I literally have like, in like, probably nine point type over to the other side of my screen. Like a full page, we probably won’t get to all of them. But so I have I have some questions. I have some questions about copyright. I have questions about like derivative work, and, you know, transformative versus, like, live and like, I, I realised that I also have a little bit more of an understanding what that even means. But I think that for creatives, and we do, we do have a few photographers that follow along on this podcast, but primarily they are designers, art directors, and illustrators. So a lot of not that this obviously doesn’t play into what Julie does, because people can rip off each other’s photos very easily. But let’s start with let’s start with copyright. So and like just intellectual property rights and things like that, so for example, if I do put out content into the world all of the time, whether it’s a you know, my handwriting or this podcast things that I say? What is automatically kind of the rights given to me? And what sort of things do I need to make a little bit more official to protect the work that I do. So we’ll start there.

Allie Moore  25:19  

Sure, absolutely. I’m going to give a disclaimer here quickly, which is that I am not an IP practitioner. So most of my intellectual property, work which I do IP work, but it’s in the form of contracts, like when people draft contracts to govern their IP rights, I would not file a lawsuit to enforce someone else’s IP rights, because I hate court. And that’s not what I want to do. But so in general, though, you automatically have copyright of anything that you’ve created. That’s, that’s copyright protectable. So like, some things are not entitled to copyright protection, like recipes. But if what you’ve created is entitled to copyright protection, like anything written, a podcast, a book, photos, designs, then you automatically it’s yours, and you have rights, people go to the US Patent and Trademark Office to file things for copyright protection, because once you have filed for copyright protection, you get like a bunch of bonus rates, like now, there are certain damages, that if someone infringes your copyright that you have registered, the law tells that person how much money that they’re gonna have to pay you for your for the infringement. And I believe, although like I mentioned, I don’t do a lot of this, you even if you haven’t registered your copyright before someone you know, rips off your work, you need to register your copyright before you take legal action against them in many instances. So it’s something you might end up doing down the road, um, whether you should register copyright for something you’ve created, it’s not free. And it takes some work on the USPTO website. I think that we all have maybe some cornerstone content that like, obviously a publishing house, a book, that’s a lot of work that went into putting that book out, like they’re gonna register that for copyright, like a blog post, when you write two blog posts a week and you have, you know, $150,000 a year business like you maybe you’re not going to be registering a copyright on all of your blog posts, right. So I think you have to decide like, if it’s something really, that is valuable, and and that you think people are going to be interested in ripping off and that it would cost you a lot if they ripped you off, then it’s worth it to go that next step and register so that you get those enhanced copyright protections.

Brandi Sea  27:38  

So what is the difference between a copyright and a trademark? Yep. So as it pertains to creative work.

Allie Moore  27:46  

So copyright and trademark are two different kinds of protections that apply to different types of intellectual property. So copyright applies to things like, you know, writing, images. And a trademark, is that something that you’re going to use to protect, like a logo, a business name, a tagline. Things that you use to promote? Like a product name or something? Yeah, yeah. Okay, exactly.

Julie Haider  28:13  

Yeah. With so is kind of, um, with copyright. I’ve seen people put like, at the bottom of their website, like copyright, their business name, and the year, Is that necessary? Is that like, what is that? And do we need to be doing it?

Allie Moore  28:30  

And, you know, I actually have to say that I don’t know, I don’t know the answer to that question. Okay. I do think that it’s helpful to identify the owner of content, and to identify like, in general, who’s behind, whatever, whatever website you’re putting out into the world. And that indicates to people that you’re going to, like you take your rights seriously, right. So I think I imagine there could be more justification than this. But I imagine that part of the thought process is that you’re going to show people like, Hey, I put the C here, like, or I wrote copyright my business name, like, I will protect this stuff. Yeah. But But I putting people on notice could have other legal impact that I’m not aware of. 

Julie Haider  29:15  

Okay. Yeah. And that makes sense. Because, unfortunately, that is a common thing. People, I think they don’t mean to do it. I mean, they don’t mean to be, you know, messing up your stuff, but like people copy pasting, you know, verbiage from your website, I don’t think they realize like the impact of that and that it’s a copyright infringement. And it happens, unfortunately.

Brandi Sea  29:40  

Yeah, um, so maybe you maybe you don’t have all the answers to this, but I’m just curious, where is the line between and I do know the answers to some of this, but for the sake of our audience, like what is the line between a derivative work or you know, and copyright infringement, fair use that kind of stuff where, what is what is the line? So, I think that there’s, there’s a lot of designers that are earlier in their career that are copying for the sake of learning. And I have taught in the past that, you know, to some extent that, you know, you have to copy to learn, but where where does it cross the line from being… You know, okay to do to? This is no longer legal?

Allie Moore  30:30  

Yeah, so there’s absolutely a legal standard and attest to that, if I, like, could articulate it off the top of my head, I would. So there’s a legal standard for what’s a derivative work. I don’t know exactly what that legal standard is, because it comes up so rarely in my practice, but what I can say about fair use, so so the basic rule is that if someone else has copyright to material, then you cannot reproduce it, including, like, in a slightly altered way, but where it’s still, you know, samples…

Brandi Sea  31:04  

I change the colours,

Allie Moore  31:07  

Or I only export is six seconds of your song. Um, you can’t reproduce it unless you have permission, or you fall in one of the Fair Use exceptions. And the most common Fair Use exceptions are like things for commentary, criticism, teaching or satire. So like SNL, that’s a really good example of fair use, right? It’s parody, it’s satire, that’s gonna fly. There are so many different ways to rip off people’s work or to be inspired by people’s work that whenever this comes up for me, and this comes up to me a lot, like when not my clients, but people in Facebook groups, I like having an issue and someone tags me, what I always do is send them to there’s a great Stanford website, which I can send to you, Brandi, if you want to be great. We can put it in the show notes. Yeah. So it explains the different categories of fair use and what I would do in practice, if I was trying to evaluate whether or not something was a fair use, or whether or not it was copyright infringement. If I would go look for similar cases, like I would go see what has happened, what have courts decided and other similar situations, because it is a very, very grey area. And it is not a clear cut test. It’s totally case by case. Yeah, absolutely. Always exercise the most caution. Like if you’re putting out something and you’re like, I wonder if I like was too close or the person was stealing. 

Brandi Sea  32:27  

Doing the Gemini cricket test. Right, your conscience is talking to you, you probably should get that checked out.

Allie Moore  32:34  

Yeah. But, you know, there’s so many people creating in the world that it also happens where somebody alleges that you’ve infringed their copyright and like, I’ve never seen this before, I didn’t know this existed. So people deal with that kind of stuff all the time. Like it happens.

Julie Haider  32:52  

Is that something that you have creatives put in their contracts? Like I’m especially thinking of designers, early on in my career, I had someone literally come to me and say, I want this logo that this other photographer has done. I was like, I can’t do that. That’s not legal. 

Brandi Sea  33:09  

Tonnes of people do that. Unfortunately, they are what I like to call hack designers. They just recreate Yeah, they just whether it’s because they wanted to, or a client wants to pay them because they saw something on Google, and they just want exactly that thing, but with their name on it. So yeah, how do you? What can you put into a contract to kind of keep that at bay? If you haven’t already determined what direction your client wants to take?

Allie Moore  33:38  

Yes. So two things, I suppose you could put a clause in your contract that just reminds clients like that I have to respect the intellectual property of others. So I reserve the right to decline your request. But even if you don’t have that, in your contract, you’re always going to be backed up by the law if you’re refusing a request, because it’s illegal or infringing someone else’s legal rights. So you don’t need that in your contract. But if you want that in your contract, because it gives you an opportunity to talk to your clients, then that’s something you consider putting in your contract. One thing that I really like to see in designers contracts, if their clients will allow it is a provision that puts all liability for IP infringement on the client that says like, I’m going to create materials for you. But it is your responsibility to make sure that that you feel like that these are not infringing anybody else’s IP rights. Like I’m not doing a trademark search. If you’ve asked me to create a logo and somebody else is using something really similar, like that, you need to do that investigation and figure that out. And in fact, if somebody you can use what’s called an indemnification provision that would say if somebody sue’s you the client for intellectual property infringement because you use something I created, and they also sue me, then you the client are going to step in and defend me in that lawsuit. Big businesses will make Not sign your contracts with that in it, if they have an attorney reviewing your contract because they want the reverse, they want to say that you’re going to indemnify them. But if your clients are okay signing that provision, and you know whether I think there’s two questions, right, what can we get away with in a contract? I think it’s okay to say, you know, what, you’re the person who’s putting this out into the world, like, I want you to take responsibility for IP, if your client will agree to that, then I like that kind of indemnification provision. Either way, when you go and buy insurance, which like we talked about, not as expensive as you think, talk to your insurance broker about a digital media policy that covers copyright infringement, because, or that covers IP cases in general, because like we mentioned, like this stuff can just come out of the blue, even when you really acted in good faith, right.

Julie Haider  35:52  

Yeah you never expect the things that come up. Now.

Brandi Sea  35:57  

No you don’t. And unfortunately, we don’t always know what the problems are until there’s a hole in our contracts. So before we go, I would love if you could just like give us a really good, I know that every every single contract is going to be a bit different. But like, if there were, however many recommendations that you could say, here are like the sections of a contract that like you need to make sure you are including, like, these are the core things that you absolutely cannot be a creative entrepreneur, business owner. And if you don’t have these, you’re screwed. Like, what what are those things?

Allie Moore  36:40  

Yeah, so I’m, I’m glad that you’re talking about sections, because I think that when I get my clients existing contracts, one way, they often fall short is organization like, I’m like your clients that have a really hard time reading this because it jumps off. So I always start a contract with what’s called the recitals. That’s where you identify the parties. It’s important if you have an LLC, that you’re identifying your LLC, as a party, and not you as an individual. And it’s also where you talk about what’s, what’s the exchange. So you can say, the exchange is whatever is detailed in the proposal, if there’s a separate proposal, or you can describe this is the product you’re getting, and this is the amount of money that you’re paying. But somewhere there needs to be a reference to the the deal, what’s being exchanged is that money for services, even if it’s, you know, images for a model release or design for like promotion, but describe the change the exchange, and then after that, I like sections that define both what you deliver and don’t deliver, and what the revision policies are, or the client collaboration or editing, or retouching policies are, and then policies about what you’re expecting from your clients. So whether that’s that they need to timely communicate with you, they need to put all the revisions in one documents, they need to show up on time, but that client obligation section, and then after you’ve done that you’ve described like, that’s the part that my clients are really involved in, because that’s how they do their work, and it’s specific to their business, then we get to the part that’s boring that the lawyers called a boilerplate. And that’s where we want an intellectual property provision that explains what what IP rights are granted to your client, what IP rights do you retain, sometimes we put in the consequences for breaching IP rights. Particularly, like, if you’re giving something to someone for a specific use, and you would have charged them for another use, then we say in there, if you I’m giving this to you, I made this design for your wedding invitation. If you put this design on on your business website, or if you use this commercially, there’s gonna be this additional fee that I’m going to invoice you for.

Brandi Sea  38:53  

Finding holes everywhere in my contracts right now, just kidding.

Allie Moore  38:58  

And then so yeah, IP liability waiver, the where they, you know, they agree not to sue you for injuries. liquidated damages, like we talked about that if you breach the contract that there’s a damage cap there. And, like, there’s others just some other like random boring things. Like if they don’t pay you, I like for there to be a provision that says they’re going to pay the cost of collection if you have to sue them. Um, but those Yeah, boilerplate terms are the terms that people like sort of, like best legal use. I don’t understand what that says. And I tried to break them earlier, but it’s really important. They’re very helpful every once in a while I like get a client where I’m like, thank goodness we have that in there.

Brandi Sea  39:39  

Yeah I bet.

Julie Haider  39:40  

Yeah, she put a force majeure clause into mine that I did not have before. And let me tell you right now with the pandemic that is very key, because it’s it’s saying like, you know, things are unexpected, but you’re not getting your money back.

Brandi Sea  40:00  

Explain to me what this what this is force majeure for now I’m saying it wrong.

Allie Moore  40:06  

No, you’re good enough. I don’t know it’s Latin, so that’s how I say it. Um, so force majeure is super super important when you deliver in person services and your ability to provide those services could be impacted by something like COVID or or in Colorado, we have like fires and floods that impact a lot of our like big wedding venue towns. So, a force majeure provision explains that if there’s an unexpected event that comes up and it’s an act of God, right, it’s something that effects more than just you and the client for some measure is not your client getting sick. Or you having a car accident, force majeure is this outside force. And when that happens, it provides for what what the parties are going to do and with my wedding vendor clients, force majeure is really important to them. We like to say your retainers are non-refundable, and you agree to reschedule for people like designers or consultants that do a lot of

Brandi Sea  41:11  

I do coaching. So yeah.

Allie Moore  41:13  

Yeah, and like you do, but most of your work is online, it’s actually pretty hard for me to think of a situation because that force majeure event is only a force majeure event, when it results in the completion of the contract becoming illegal or impractical. So you could imagine like coaching, if, if if the government outlawed coaching, that would be a force majeure event, it’s sort of hard to imagine how an earthquake wouldn’t be a force majeure. 

Brandi Sea  41:38  

Right, because even though I do in person strategy sessions, we could do that over zoom if necessary. So it’s not really forcing, forcing it out of opportunity to do so.

Allie Moore  41:50  

Yeah. So not saying that it’s never appropriate for a designer or in person. It’s more important for in person services.

Brandi Sea  41:57  

Okay. Well, that’s cool. I didn’t know that. I don’t think I need that for mine. But I would guarantee there are tonnes of people that do, because there are you know, there are graffiti artists or you know, things like that, that where they need to be working like working outside at a thing. Or, you know, any number of things that that creatives do that that could definitely impact them. So that’s really cool.

Allie Moore  42:22  

I’m sure somebody’s gonna think of some way that force majeure could make graphic design. Like, like the situation where that would happen, it would be like the internet is finished. Well then the least of our worries would be getting $700 from someone.

Brandi Sea  42:35  

We’ve been hacked, our country’s internet grid has been hacked, we cannot work. That’s, that’s literally the worst case scenario. The Internet didn’t work. Okay, so those are like all my really basic questions. And I think that that’s like a really good start. I think that it would be awesome if we could have you on at some point in the future for maybe a q&a or something with, with some questions that we have other people bring in. But I that was really informative for me. I don’t know about you, Julie, you talked to her more often. So you probably are just like, Yeah, I know all this stuff.

Julie Haider  43:12  

Cuz I already asked all the questions.

Brandi Sea  43:16  

So where can people find you? And are you taking clients? And? Yeah, yeah, where can people get in contact with you? If, if they want you to look over their contract? Or maybe help, you know, start from scratch? They don’t have one at all?

Allie Moore  43:34  

Yeah, so So there’s two really good places to get in touch with us. The first is our Instagram, which is @creativeslearnlaw. They, we put out tips like pretty much every day stories, posts, and I think they’re pretty useful. That’s one a year. And then the second place is on our website homepage. So our website, actually, there’s there’s a domain name and a trademark troll involved in our in our website, but it’s just creativelearn.com, which maybe I can end on a bonus tip, which is never file a trademark unless you’ve already bought the domain name for your trademark. Because it turns out, this is something that people do. Okay, so creativelearn.com. And at the bottom, you can sign up for our mailing list. And we’re what we are taking clients, we do one on one drafting services. And then we’re also launching, hopefully sometime in January. We don’t really have a robust template shop right now. But we’re working on some video supported templates, where we could sell templates and then we have videos on my partner night instructing you on how every clause works and how to edit it. So awesome. Yeah, we’re excited about it. Um, we will start with designers and photographers, probably because those are our two most most frequent clients. So if you get on our mailing list at creativelearn.com you’ll get an email when when we have that ready to go.

Brandi Sea  44:59  

That sounds like a really great resource. Yeah.

Allie Moore  45:02  

Thank you.

Brandi Sea  45:02  

Well, thank you so much for spending this time with us and answering all the all the questions we had time to answer today.

Julie, do you have anything else to say before we say goodbye?

Julie Haider  45:17  

I’m just that everybody should go hire Allie. cuz she’s like, yeah, peace of mind.

Allie Moore  45:24  

I do think like, when I was listening to Brandi up the beginning talking about, like how there’s like sort of anxiety about not thinking about these things. I do think that in creative small business, like, it’s easier, the more that you know, except in taxes, okay, but I don’t do taxes. But everything else is easier, the more that you know,

Brandi Sea  45:41  

I mean, we have to, we have to start somewhere. I think that as creative professionals, sometimes a good chunk of us just want to sort of hide that stuff under a rock and hope nobody looks there, until somebody looks there. And then you go, I probably should have had more than I do. So I think that if you can’t afford a lawyer, or if you, if you can’t, you know, delve deep into investing in having a custom contract, check out Allies stuff, and, you know, do your due diligence to at least learn something so that you aren’t, you know, getting your house taken away, or any terrible things.

Allie Moore  46:31  

I have, let’s see, I’ve served like, you know, probably between 50 and 100 clients over the past 18 months, and none of them have ever been sued. They are people who have gotten to the verge of lawsuit, but none of them have ever even gone to court. So the odds are in your favour. 

Brandi Sea  46:44  

Is it usually the other way around, then that like, the creatives are more often doing like the suing because of IP stuff? Do you think or just like, not a lot of…

Allie Moore  46:56  

The stakes are just lower, right? Like, this isn’t construction, like in construction, there’s a lot of ways that people can go hurt, get hurt. And there’s a lot of really expensive mistakes you can make with medicine, while IP can get expensive, like the stakes are overall are just lower. And so it’s less, there’s less likely to be lawsuits. So that doesn’t mean that you know, you should just write this stuff off and not worry about it. But I don’t want people to lose a tonne of sleep because we really don’t see a lot of that worst case scenario in our industry.

Brandi Sea  47:26  

Well, that’s totally, we’ll do that. Yeah, you’ll be okay. But you should probably do some research. And go check out Allie. So thank you so much. We appreciate you being here with us. And I hope that we get to chat some more in the future.

Allie Moore  47:39  

Absolutely. My pleasure. Thanks, guys.

Brandi Sea  47:43  

Wow Julie, that was a lot. Like in all of the best ways.

Julie Haider  47:48  

Yes.

Brandi Sea  47:49  

I feel I’m feeling like filled up to here with information. How are you doing? You’re like, I already knew all this guys. I just brought her on for your benefit.

Julie Haider  48:01  

I will say like, before I hired her I was like, I had so many questions and was like, I think this is the right thing to do. But I but please tell me like, is this right or not? It was just incredibly helpful to have her just answer all my questions. And then, like, helped me make a completely new contract that really like, spelled everything out, including the stuff that I hadn’t even thought of like, I really tried hard to read years and years to think of like the different weird scenarios that might come up. But even still, there were things that I was like, Oh, yeah, like that needs to be in there.

Brandi Sea  48:37  

Yeah. So what’s the difference between like how you approach like working with a client now, versus how you were working with a client before you worked with her? I’m just curious as to like, how has that changed how you do business? 

Julie Haider  48:55  

Yeah, I feel a lot more confident that so for me a big concern is safety because I am going into potentially dangerous places with clients like uncharted territory.

Yeah, I mean, the last elopement that I did, I basically was guiding them to a location that had no trails and the roads were unmarked, and I was driving and there’s just like a whole lot of things that could go wrong there and like, I would feel so terrible if something happened to my clients, even if it was, you know, something as simple as a bee sting which I have had happened before on a shoot.

Brandi Sea  49:32  

Can you be liable for a bee sting?

Julie Haider  49:35  

I don’t know. Um, but yeah, I just feel way more confident of knowing like that I am protected and that I’ve like put the right things in there. But also, she put a lot of things into the contract that are also protecting like the clients and giving them expectations and everything. So it makes me feel a little less like one sided of like I have like, yeah,

Yeah it’s for everybody. So yeah, I feel way more confident and protected. And then just like, everything’s out there, you know, like, as long as they do actually read the contract.

Brandi Sea  50:15  

Yeah, we did talk about that a bit.

Julie Haider  50:17  

Yeah, then we’re all on the same page. Yeah. But yeah, nobody should be signing something that they haven’t read. Just putting that out there. 

Brandi Sea  50:23  

Sometimes you just want to move on to installing that app. And you don’t, right. I’m kidding. If you’re investing, if you’re investing any significant amount of money in something, whether it’s, you know, photography from your wedding, or a brand strategy, like stuff that really matters, you should really be reading that stuff. And if you want to protect yourself and your client, you definitely need a contract. So yeah, I hope that I hope that everybody got a lot out of this. You may need to listen to it once or twice or three times to take a lot of notes because there were very specific like point by point things that she that she mentioned, that were necessary and so I highly encourage you to take note of those things also. So I guess we will see you guys next week.

All right, everybody. That’s our episode for today. If you enjoy this show and want to support us, become one of our exclusive patreons over at patreon.com/designspeaks, where you’ll have access to some extended episodes and fun bonus content. Design Speaks is produced by Kenneth kniffin and Dakota Cook, audio production by The Podcast Babes. Thanks to Colin from Vespertine for theme music, you can find Vespertine on Apple Music and Spotify. Design Speaks is a project of Brandi Sea Design. It is recorded and produced in the shadow of the watermelon peak Sandia Mountains near Albuquerque, New Mexico. You can leave us a note on Instagram @designspeakspodcast and you can find all current and past episodes at designspeakspodcast.com. Thanks again for listening. Until next time.