The Business of Being Creative // Q&A with my lawyer, part 1

The Business of Being Creative // On the blog this week, my actual lawyer is answering all of your questions and covering topics such as contract negotiations, invoicing, copyright and trademark, forming an LLC, and more! Read more on Jojotastic.com

After my Basics of Sponsored Content post went live, I was inundated with loads of emails and comments from you guys asking questions that I just plain didn’t feel equipped to answer on my own. I’m still figuring it all out as I go! So I reached out to my actual lawyer, Matt Landis, for some expert help. He has been an unbelievable resource as I grow my business, to the point where we are almost in constant contact as I navigate the waters of being a professional blogger and art director.

We did a little Q&A session that covers everything from image rights to FCC guidelines to contract negotiations and invoicing. This is an amazing resource you guys, so be sure to keep reading!

Q: What are the top legal issues facing creatives?

A: There are many potential issues depending on the nature of your work, business and goals, but I’ll start out with a few of the basics. First, it’s important to understand the value of creating a business entity, such as an LLC or a corporation. The goal of establishing a separate entity is primarily to protect your personal assets. There’s also an intangible benefit to forming a business entity: it hopefully helps you view your business for what it is — a business.

Second, having a basic understanding of intellectual property law and what constitutes ownership of intellectual property. Copyright and trademark are typically implicated in creative projects (more on that later), however trade secrets and patents may be involved as well. It’s a tricky area of the law, but when you understand generally how it works, you’ll be able to spot potential issues and hopefully prevent problems before they arise.

Finally, contracts, contracts, contracts. Before you enter into an agreement, you should, at a minimum, understand what that contract means for you and your business. Most importantly, does the contract make sense for you and your business goals? More on this below!

Q: If I’ve been paid by a brand to advertise for them, what do I need to do in order to protect myself?

A: If you have been compensated in any way (including money, free product, etc.) you need to make sure you are complying with the FTC .com disclosure requirements for sponsored content. Generally, the FTC requires you to clearly and conspicuously disclose that you’re sponsored by the brand. The FTC’s goal is to protect consumers from confusion about whether endorsers are being compensated for the promotion of brands, products, and services. The FTC website contains specific examples of disclosure requirements for various mediums, including blog posts, tweets, and other social media posts.

Q: What are the top red flags I should look for in a contract with a brand?

A: I view contracts as protection for both parties, so the most important thing is to get it right from the outset and make sure that the terms match your negotiations up until that point. If you start work before a contract is signed, that is asking for trouble because if there is a problem down the road, it’s basically your word versus theirs.

Make sure you’re clear on exactly what your obligations are in order to get paid. If there is ambiguity in the contract from the outset, it may lead to problems down the road. Many brands include language in their contracts that include a small fee for unlimited access to your audience or revisions or supplements to your work. You’re running a business and if they are requiring tons of extra work or exclusivity, for example, the contract price should reflect that. The contract should be very specific about what is included (and what what isn’t) and what triggers payment.

If you have a business entity, make sure you are entering into the contract as the business entity, not as an individual. For example, Joanna does business as Jojotastic, LLC.

Here are some other common issues I see:

  • How long does the agreement last?
  • What happens if there is a disagreement?
  • Are the payment terms fair? Should there be a portion of the payment up front?
  • Are there exclusivity terms?
  • Can you comply with all of the intellectual property provisions?
  • Do you retain ownership of all intellectual property or are you assigning it all to the other party?

These questions are all important, but of course there may be others depending on the structure of the deal and your goals.

Special thanks to Matt for all of his help and guidance answering these questions! Part 2 will be posted next week — if you’ve got more questions, leave them below in the comments and we’ll do our best to answer.

Read even more of the entire The Business of Being Creative series here.

Photography by Jojotastic.