Episode 49
E49: Do I Own It? Can I Use It?
When it comes to copyright, there are a few rules that can make all the difference between scaling your business and getting tripped up by the counterintuitive rules of intellectual property law. You need to know who owns what, who has what usage rights, and what the consequences of misappropriation might be.
This episode was recorded as a LinkedIn Live, which I hold the last Wednesday of every month at Noon ET (check out my YouTube channel if you want the full version with slides) and covers how to create, protect, and maximize your copyright assets.
Among the questions I answer:
- What does having an employee or contractor have to do with copyright? (A lot.)
- If you create something for a client, who owns the IP? (A lawyerly, “it depends.”)
- Are there magic words to clarify copyrights? (You bet there are!)
- When someone else owns the copyright, can you use it? (Don’t count on it.)
Other Resources Mentioned:
Connect with Erin and find the resources mentioned in this episode at hourlytoexit.com/podcast.
Erin's LinkedIn Page: https://www.linkedin.com/in/erinaustin/
Think Beyond IP YouTube Page: https://www.youtube.com/channel/UCVztXnDYnZ83oIb-EGX9IGA/videos
Music credit: Yes She Can by Tiny Music
A Team Dklutr production
Transcript
Hello, ladies.
Speaker:Welcome to the Hourly to
Speaker:Exit podcast.
Speaker:This is a replay of a LinkedIn Live that
Speaker:I did last year.
Speaker:Lately, I've been leaning into the
Speaker:hourly side of the hourly to exit
Speaker:journey, whereas this time last year,
Speaker:I was emphasizing the exit side
Speaker:of the journey.
Speaker:So I wanted to replay this
Speaker:because it.
Speaker:Addresses kind of that early stage,
Speaker:when you are trying to put the
Speaker:foundation in place that you need to
Speaker:grow your business from an unscalable,
Speaker:oftentimes hourly, one-to-one model,
Speaker:to a scalable one, to many model.
Speaker:So before you invest your
Speaker:precious resources, whether it be in.
Speaker:Coaches or legal fees or other things
Speaker:to develop, a one to many offer, whether
Speaker:that is products, licensing programs,
Speaker:which, you know, I love certifications
Speaker:or even something as seemingly simple
Speaker:as a digital course.
Speaker:You need to be able to answer three
Speaker:important questions about the quality
Speaker:of the intellectual property you
Speaker:want to use.
Speaker:One, do I own what I think I own?
Speaker:Two, if I don't own it, can I use it?
Speaker:Three.
Speaker:Am I doing everything I need
Speaker:to do to protect what I own?
Speaker:So today's episode explores the
Speaker:second question, whether or not you
Speaker:can use something that you didn't
Speaker:personally create.
Speaker:So if there's anything in your
Speaker:business that you are using, Even if
Speaker:you're currently using it with your
Speaker:one-on-one clients, it is a separate
Speaker:question about whether or not you
Speaker:have the right to include it in your
Speaker:new scalable offers.
Speaker:So this is what we'll talk
Speaker:about today.
Speaker:Listen and enjoy
Speaker:We're gonna be talking about
Speaker:the sources of intellectual
Speaker:property.
Speaker:As well as the uses of intellectual
Speaker:property.
Speaker:And so this is kind of a master
Speaker:kind of overview.
Speaker:We're gonna talk about each of
Speaker:these elements and basically we'll
Speaker:be talking about whether or not your
Speaker:use is unrestricted or if it is
Speaker:restricted now.
Speaker:Exactly how your rights may be
Speaker:restricted, would be dependent upon
Speaker:the documentation and would be
Speaker:dependent upon the circumstances, and
Speaker:therefore giving you an opinion
Speaker:about whether or not a particular
Speaker:use is restricted would of course
Speaker:be legal advice.
Speaker:I don't give legal advice over
Speaker:LinkedIn Live.
Speaker:I will be able to give you some
Speaker:guidelines about your circumstances
Speaker:for you to think about whether or not
Speaker:you have restricted or unrestricted
Speaker:use with respect to any piece
Speaker:of intellectual property.
Speaker:So let's first talk about your sources
Speaker:of intellectual property.
Speaker:So where does the intellectual
Speaker:property that is in your business
Speaker:flowing through your business?
Speaker:Where does it come from?
Speaker:So the sources.
Speaker:Of course it could be your employees if
Speaker:you have employees.
Speaker:I'm talking about your W2 employees,
Speaker:employees that you are paying
Speaker:employment taxes for.
Speaker:Then you have your contractors.
Speaker:Those are people on your team that are
Speaker:not your employees, that you have
Speaker:engaged to create deliverables, and
Speaker:then you get the IP from other third
Speaker:parties as well.
Speaker:Your client can, of course, be a source
Speaker:of intellectual property.
Speaker:Oftentimes, our clients will give
Speaker:us materials that we are to use to
Speaker:provide services we can get.
Speaker:Intellectual property from a
Speaker:licenseor via a license agreement.
Speaker:And then we can get them from
Speaker:other sources as well, which we
Speaker:will talk about.
Speaker:So how do we use intellectual
Speaker:property?
Speaker:And I like to put 'em in these
Speaker:five buckets.
Speaker:of course they can all be broken down
Speaker:further, but the main buckets would
Speaker:be tools, marketing, client deliverables,
Speaker:products, and.
Speaker:Exit.
Speaker:and of course I'm talking about the
Speaker:perspective of the service-based
Speaker:business and when we have a service-based
Speaker:business, we're are.
Speaker:Primarily talking about copyrights.
Speaker:Yes, there's going to be some
Speaker:trade secrets.
Speaker:Yes, there's going to be some
Speaker:trademarks, but for the purpose of
Speaker:this conversation, we're talking
Speaker:about copyrights.
Speaker:So those things that are in writing or
Speaker:created creatively put intangible
Speaker:form, photos, graphics, software,
Speaker:books, trainings, things like that.
Speaker:So those are the things that we're
Speaker:talking about during this conversation.
Speaker:So your tools will be the things that
Speaker:you use internally.
Speaker:These are the things that you
Speaker:use in order to provide services
Speaker:to your clients.
Speaker:So those might be your standards
Speaker:and procedures.
Speaker:You may have a database, you may
Speaker:have a resource library frameworks.
Speaker:You probably have some sort of
Speaker:productivity tools or things like that.
Speaker:For marketing, those are things that are
Speaker:public facing that are not for sale.
Speaker:So website copy, your lead magnet,
Speaker:your newsletter, your social media
Speaker:posts, and you know your speeches or
Speaker:your slideshow for presentations, you
Speaker:have your client deliverables.
Speaker:So you'll notice that client work
Speaker:is both a source of IP and clients
Speaker:can also be a use of intellectual
Speaker:property.
Speaker:So when we have our deliverables, In
Speaker:the service-based business, we
Speaker:are delivering intellectual
Speaker:property to our clients as well.
Speaker:And then products would be those
Speaker:things that we create for sale,
Speaker:like books, trainings, licensing
Speaker:program, and then an exit would be in
Speaker:the event that you sell your business,
Speaker:can the intellectual property go with it?
Speaker:So those are the buckets of uses for
Speaker:our intellectual property.
Speaker:So top level answer regarding
Speaker:the unrestricted use of ip.
Speaker:Do you own it?
Speaker:Do you own it exclusively?
Speaker:And if you do, then you have
Speaker:unrestricted use.
Speaker:It's.
Speaker:Really that simple.
Speaker:If you do not own it exclusively,
Speaker:then you have restrictions on
Speaker:how you can use it.
Speaker:So how do you get exclusive ownership
Speaker:of intellectual property?
Speaker:Default under copyright laws
Speaker:is if the human who created the
Speaker:intellectual property, who
Speaker:who created the the copyrighted
Speaker:Owns it.
Speaker:So if you created it and it's
Speaker:original to you, you own a hundred
Speaker:percent of it.
Speaker:If your W2 employees created it, then
Speaker:as the employer you own it, a
Speaker:hundred percent is the owner.
Speaker:And then the third is if there's
Speaker:something in writing, signed
Speaker:in writing that.
Speaker:changes that dynamic so that
Speaker:the creator is not also the owner.
Speaker:So if you engage a contractor and
Speaker:you have a written services agreement
Speaker:with that contractor that assigns the
Speaker:rights in that copyrighted work
Speaker:to you, then you are the owner.
Speaker:And so in those circumstances,
Speaker:own it.
Speaker:You have unrestricted
Speaker:use of it for all those five
Speaker:buckets of uses, unless you created
Speaker:those materials.
Speaker:As part of a service for a client.
Speaker:So that's gonna be addressed in the
Speaker:restricted use.
Speaker:but anything that is created outside of
Speaker:a client engagement, you own it in these
Speaker:circumstances, and you have
Speaker:unrestricted use of that ip.
Speaker:And then I'm gonna go dig a little bit
Speaker:deeper regarding the contractor,
Speaker:because that is by agreement.
Speaker:So you need to have the right words in
Speaker:your agreement to make sure that you
Speaker:own the rights.
Speaker:So the important magic words here.
Speaker:When you have a contract, when you
Speaker:have a services agreement, you
Speaker:are the client.
Speaker:In this instance, your contractor is
Speaker:creating something for you and you
Speaker:wanna own a hundred percent of it.
Speaker:You wanna make sure you have the magic
Speaker:words work for hire, and so those are
Speaker:copyright terms, so that it is as if you
Speaker:created it yourself.
Speaker:Very much like W2 employee, when they
Speaker:create something for you, a contractor
Speaker:who does something for you as work
Speaker:for hire, you're also the owner.
Speaker:But because there's some specific
Speaker:language regarding work for hire,
Speaker:you also have just this assignment
Speaker:of all rights just in case it doesn't
Speaker:fall into the scope of work for hire.
Speaker:Then you also get an assignment of
Speaker:all rights as well.
Speaker:So that is to make sure that you own
Speaker:everything from a contractor.
Speaker:Now, if you have a contractor who has
Speaker:some preexisting material, so let's
Speaker:say for instance you are a coach
Speaker:and you hire to create your website.
Speaker:Who has like a template for
Speaker:coach's websites because it's magic.
Speaker:And so they take their template and
Speaker:they layer on your branding, your copy.
Speaker:So you own that, but you don't own
Speaker:that template.
Speaker:And so your vendor, your contractor,
Speaker:will carve out the preexisting
Speaker:materials so you won't own those.
Speaker:So those are things that you won't own
Speaker:and that are subject to a license.
Speaker:So that is the bridge between,
Speaker:you have some that is unrestricted
Speaker:and some that is restricted.
Speaker:If there's any preexisting
Speaker:materials that's covered by your
Speaker:signed contract.
Speaker:So if you don't own it, everything
Speaker:else, there are restrictions
Speaker:attached to the youth, and so the
Speaker:specifics of those restrictions will
Speaker:depend on the.
Speaker:How you receive them, you whether
Speaker:you receive them via an agreement
Speaker:that has terms in it, whether
Speaker:you receive them without an agreement
Speaker:that has implied terms and what
Speaker:those terms are.
Speaker:Exactly.
Speaker:So anything that you don't own,
Speaker:there's going to be restrictions.
Speaker:So if you've engaged a contractor and
Speaker:there's no signed agreement, who
Speaker:owns that material?
Speaker:The contractor, because the default
Speaker:is that the human who created it owns
Speaker:it, unless there's something signed
Speaker:and in writing.
Speaker:And of course any carve-outs even
Speaker:if you pay for it, you tell them
Speaker:exactly what to do.
Speaker:If there's not a signed
Speaker:agreement, then the contractor owns it.
Speaker:And what you have is you have
Speaker:a non-exclusive license to use those
Speaker:deliverables for the purpose that
Speaker:they're engaged for, but they own
Speaker:the copyright.
Speaker:So your use is restricted to.
Speaker:What you hired them to deliver
Speaker:to you and for the purpose that they
Speaker:were delivered.
Speaker:So for third party materials, let's
Speaker:say it's client work, and this
Speaker:is both incoming.
Speaker:The client has materials that
Speaker:they've presented to you to work with,
Speaker:so that's incoming as well as outgoing.
Speaker:So you've now created something
Speaker:for the client and you've delivered
Speaker:it to the client.
Speaker:Let's go back to this lovely
Speaker:language where in this case, you
Speaker:are the contractor and your client
Speaker:is the one who is getting all of those
Speaker:rights in what you created as a work
Speaker:made for hire.
Speaker:And to the extent it's not a work made
Speaker:for hire, you are assigning to your
Speaker:client all rights in that deliverable.
Speaker:So here you're on the other side
Speaker:of that language, and so your client
Speaker:owns 100% of those deliverables.
Speaker:And I think you know that anyway,
Speaker:but that is the language that
Speaker:solidifies that.
Speaker:And if for whatever reasons you're
Speaker:doing work with your clients without
Speaker:an agreement, then you do own
Speaker:that material.
Speaker:Of course I don't recommend that
Speaker:for either party's comfort, but that
Speaker:is the default.
Speaker:And then for licensed materials,
Speaker:so let's say you went through a
Speaker:certification program and as
Speaker:part of that certification
Speaker:program, you have a license to use
Speaker:the materials.
Speaker:Maybe there's a framework that
Speaker:they let you use.
Speaker:Maybe there are trading
Speaker:materials that they let you use.
Speaker:Meaning there a evaluation tool
Speaker:or an assessment tool that they
Speaker:let you use.
Speaker:This part of the license every
Speaker:license is going to have terms in it.
Speaker:It will say like for how long you
Speaker:can use it and.
Speaker:With whom you can use it.
Speaker:Is it for internal purposes only or can
Speaker:you sub license it?
Speaker:Can you allow third parties to also
Speaker:access those same tools and materials,
Speaker:or are there restrictions around
Speaker:maybe even the type of person that
Speaker:you can work with?
Speaker:And so you will want to know, you
Speaker:understand what's in your license,
Speaker:and you're going to wanna make sure
Speaker:that the license.
Speaker:Covers the use that you need it for.
Speaker:Sometimes the license will be too
Speaker:narrow for your use.
Speaker:I have a client who actually,
Speaker:they are licensing information from
Speaker:a database and the default license
Speaker:limits their ability to use
Speaker:that database.
Speaker:Like you can't take the information
Speaker:from their database and combine it
Speaker:with your own information, that's
Speaker:the default license.
Speaker:But my client actually needs to
Speaker:be able to combine it with their
Speaker:information cuz it's more powerful.
Speaker:They can then, perform whatever
Speaker:processing with it in order to
Speaker:create insights.
Speaker:And so they needed to go back and
Speaker:negotiate a broader license to not
Speaker:only have access to the data in the
Speaker:database, but to be able to integrate
Speaker:that data with the data in their own
Speaker:databases to get the full value from it.
Speaker:Now, does that transfer ownership
Speaker:of that data from the licenseor
Speaker:to my client who's a licensee?
Speaker:No, it does not.
Speaker:So the license still governs
Speaker:what they can do.
Speaker:With the data even permits them to
Speaker:combine it, but at the end of that
Speaker:term, when they're no longer paying
Speaker:for it, they have to remove it from
Speaker:their database and return it all
Speaker:to the licenseor.
Speaker:So you do wanna make sure that,
Speaker:don't assume that your license
Speaker:covers all the uses that you need.
Speaker:where does other come from?
Speaker:Probably one of the major ones that's
Speaker:people don't really think about is from
Speaker:our old employers.
Speaker:we leave employment and we
Speaker:take some stuff with us, right?
Speaker:That we use, that we think aren't
Speaker:proprietary.
Speaker:but at the end of the day, whether
Speaker:or not it's.
Speaker:A secret is not determinative of
Speaker:whether or not somebody owns it.
Speaker:Cuz most materials that are covered
Speaker:by copyright are not secret, right?
Speaker:Cuz they have to be registered.
Speaker:Let's say they have an employee manual.
Speaker:So we take that with us and maybe
Speaker:we use that and that's not ours.
Speaker:That is theirs, it's not yours to use.
Speaker:Um, maybe there's some templates
Speaker:like, you services agreements people
Speaker:might take and those are your
Speaker:former employers.
Speaker:Property.
Speaker:so when we don't have a license, we
Speaker:are in danger of infringing a third
Speaker:party's copyright.
Speaker:So that brings us to our fair use.
Speaker:The only time fair use comes up
Speaker:is when lawyers are involved.
Speaker:So fair use is not something you
Speaker:want to rely upon.
Speaker:Basically it means you have used
Speaker:someone else's intellectual
Speaker:property without their permission.
Speaker:And they've come to you and said,
Speaker:you're infringing my copyright.
Speaker:And if you feel like, no, I think
Speaker:I have the right to use this without
Speaker:your permission because it's fair
Speaker:use, that means you're claiming
Speaker:that you're not infringing their
Speaker:copyright because of fair use.
Speaker:So that is not an in affirmative, right?
Speaker:That you can receive upfront.
Speaker:That's not a safe harbor.
Speaker:It's something you have to assert if
Speaker:somebody accuses you of infringing
Speaker:their copyright.
Speaker:that is, our overview, a high
Speaker:level overview of how you can use
Speaker:an intellectual property that
Speaker:flows through your business.
Speaker:We talked about the ways that
Speaker:it comes in.
Speaker:Unless you own it a hundred percent,
Speaker:you're going to be some restrictions.
Speaker:So you're going to wanna understand
Speaker:the terms.
Speaker:Of any agreements written or implied,
Speaker:you cause you can have implied
Speaker:licenses as well.
Speaker:Maybe if you got something from
Speaker:the internet, we've talked about
Speaker:Creative Commons.
Speaker:Maybe it's Creative Commons, maybe you
Speaker:have a handshake deal and you have
Speaker:a non-exclusive license.
Speaker:but you need to understand the
Speaker:limits of your uses, um, that you.
Speaker:Are not in danger of infringing the
Speaker:owner's copyright.
Speaker:So can the services agreement with
Speaker:a contractor be by email?
Speaker:the answer to that is, It can
Speaker:be by email.
Speaker:However, in order for you to own the
Speaker:exclusive rights in the deliverables,
Speaker:it has to be signed.
Speaker:So the transfer of intellectual
Speaker:property rights is one of those areas
Speaker:of law that you have to have something.
Speaker:Signed.
Speaker:And so the transfer of real property
Speaker:is another one of those areas.
Speaker:if you do it digitally by
Speaker:email, you it's enforceable,
Speaker:so you can make them deliver the
Speaker:deliverables to you, and if they breach
Speaker:the agreement, you can sue them,
Speaker:but you will not get your exclusive
Speaker:copyright by email.
Speaker:You cannot get that by email.
Speaker:Is it fair use if I give credit to the
Speaker:original material?
Speaker:No, it is not.
Speaker:So the copyright owner has the
Speaker:exclusive rights to make copies,
Speaker:to distribute it, to perform it,
Speaker:to display it, whatever the nature
Speaker:of the material is.
Speaker:That is their exclusive.
Speaker:Right.
Speaker:And giving credit to them does not.
Speaker:Give them that exclusive ride
Speaker:that takes away the exclusive, right?
Speaker:So if you've used the material
Speaker:without permission regardless of
Speaker:credit, then you are in breach of their
Speaker:copyrights, their exclusive rights
Speaker:to what happens with that material.
Speaker:Unless you can.
Speaker:Successfully assert fair use.
Speaker:So if it is fair use, I assume you
Speaker:would have given credit, but that is
Speaker:not determinative.
Speaker:I am actually writing a newsletter
Speaker:today as little be on my website,
Speaker:a blog post about fair use and what
Speaker:the circumstances would be to assert
Speaker:and hopefully win a fair use defense.
Speaker:Well, thank you all so much for
Speaker:joining me today.
Speaker:If you have any questions, you can
Speaker:always reach me through LinkedIn
Speaker:and you can of course access the
Speaker:free resources on my podcast website,
Speaker:hourly to exit.com.
Speaker:Or through my regular website,
Speaker:think beyond ip.com, and I look
Speaker:forward to it.
Speaker:Talking to you again soon.
