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:

• Fair Use Blog

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

Hello, ladies.

Welcome to the Hourly to

Exit podcast.

This is a replay of a LinkedIn Live that

I did last year.

Lately, I've been leaning into the

hourly side of the hourly to exit

journey, whereas this time last year,

I was emphasizing the exit side

of the journey.

So I wanted to replay this

because it.

Addresses kind of that early stage,

when you are trying to put the

foundation in place that you need to

grow your business from an unscalable,

oftentimes hourly, one-to-one model,

to a scalable one, to many model.

So before you invest your

precious resources, whether it be in.

Coaches or legal fees or other things

to develop, a one to many offer, whether

that is products, licensing programs,

which, you know, I love certifications

or even something as seemingly simple

as a digital course.

You need to be able to answer three

important questions about the quality

of the intellectual property you

want to use.

One, do I own what I think I own?

Two, if I don't own it, can I use it?

Three.

Am I doing everything I need

to do to protect what I own?

So today's episode explores the

second question, whether or not you

can use something that you didn't

personally create.

So if there's anything in your

business that you are using, Even if

you're currently using it with your

one-on-one clients, it is a separate

question about whether or not you

have the right to include it in your

new scalable offers.

So this is what we'll talk

about today.

Listen and enjoy

We're gonna be talking about

the sources of intellectual

property.

As well as the uses of intellectual

property.

And so this is kind of a master

kind of overview.

We're gonna talk about each of

these elements and basically we'll

be talking about whether or not your

use is unrestricted or if it is

restricted now.

Exactly how your rights may be

restricted, would be dependent upon

the documentation and would be

dependent upon the circumstances, and

therefore giving you an opinion

about whether or not a particular

use is restricted would of course

be legal advice.

I don't give legal advice over

LinkedIn Live.

I will be able to give you some

guidelines about your circumstances

for you to think about whether or not

you have restricted or unrestricted

use with respect to any piece

of intellectual property.

So let's first talk about your sources

of intellectual property.

So where does the intellectual

property that is in your business

flowing through your business?

Where does it come from?

So the sources.

Of course it could be your employees if

you have employees.

I'm talking about your W2 employees,

employees that you are paying

employment taxes for.

Then you have your contractors.

Those are people on your team that are

not your employees, that you have

engaged to create deliverables, and

then you get the IP from other third

parties as well.

Your client can, of course, be a source

of intellectual property.

Oftentimes, our clients will give

us materials that we are to use to

provide services we can get.

Intellectual property from a

licenseor via a license agreement.

And then we can get them from

other sources as well, which we

will talk about.

So how do we use intellectual

property?

And I like to put 'em in these

five buckets.

of course they can all be broken down

further, but the main buckets would

be tools, marketing, client deliverables,

products, and.

Exit.

and of course I'm talking about the

perspective of the service-based

business and when we have a service-based

business, we're are.

Primarily talking about copyrights.

Yes, there's going to be some

trade secrets.

Yes, there's going to be some

trademarks, but for the purpose of

this conversation, we're talking

about copyrights.

So those things that are in writing or

created creatively put intangible

form, photos, graphics, software,

books, trainings, things like that.

So those are the things that we're

talking about during this conversation.

So your tools will be the things that

you use internally.

These are the things that you

use in order to provide services

to your clients.

So those might be your standards

and procedures.

You may have a database, you may

have a resource library frameworks.

You probably have some sort of

productivity tools or things like that.

For marketing, those are things that are

public facing that are not for sale.

So website copy, your lead magnet,

your newsletter, your social media

posts, and you know your speeches or

your slideshow for presentations, you

have your client deliverables.

So you'll notice that client work

is both a source of IP and clients

can also be a use of intellectual

property.

So when we have our deliverables, In

the service-based business, we

are delivering intellectual

property to our clients as well.

And then products would be those

things that we create for sale,

like books, trainings, licensing

program, and then an exit would be in

the event that you sell your business,

can the intellectual property go with it?

So those are the buckets of uses for

our intellectual property.

So top level answer regarding

the unrestricted use of ip.

Do you own it?

Do you own it exclusively?

And if you do, then you have

unrestricted use.

It's.

Really that simple.

If you do not own it exclusively,

then you have restrictions on

how you can use it.

So how do you get exclusive ownership

of intellectual property?

Default under copyright laws

is if the human who created the

intellectual property, who

who created the the copyrighted

Owns it.

So if you created it and it's

original to you, you own a hundred

percent of it.

If your W2 employees created it, then

as the employer you own it, a

hundred percent is the owner.

And then the third is if there's

something in writing, signed

in writing that.

changes that dynamic so that

the creator is not also the owner.

So if you engage a contractor and

you have a written services agreement

with that contractor that assigns the

rights in that copyrighted work

to you, then you are the owner.

And so in those circumstances,

own it.

You have unrestricted

use of it for all those five

buckets of uses, unless you created

those materials.

As part of a service for a client.

So that's gonna be addressed in the

restricted use.

but anything that is created outside of

a client engagement, you own it in these

circumstances, and you have

unrestricted use of that ip.

And then I'm gonna go dig a little bit

deeper regarding the contractor,

because that is by agreement.

So you need to have the right words in

your agreement to make sure that you

own the rights.

So the important magic words here.

When you have a contract, when you

have a services agreement, you

are the client.

In this instance, your contractor is

creating something for you and you

wanna own a hundred percent of it.

You wanna make sure you have the magic

words work for hire, and so those are

copyright terms, so that it is as if you

created it yourself.

Very much like W2 employee, when they

create something for you, a contractor

who does something for you as work

for hire, you're also the owner.

But because there's some specific

language regarding work for hire,

you also have just this assignment

of all rights just in case it doesn't

fall into the scope of work for hire.

Then you also get an assignment of

all rights as well.

So that is to make sure that you own

everything from a contractor.

Now, if you have a contractor who has

some preexisting material, so let's

say for instance you are a coach

and you hire to create your website.

Who has like a template for

coach's websites because it's magic.

And so they take their template and

they layer on your branding, your copy.

So you own that, but you don't own

that template.

And so your vendor, your contractor,

will carve out the preexisting

materials so you won't own those.

So those are things that you won't own

and that are subject to a license.

So that is the bridge between,

you have some that is unrestricted

and some that is restricted.

If there's any preexisting

materials that's covered by your

signed contract.

So if you don't own it, everything

else, there are restrictions

attached to the youth, and so the

specifics of those restrictions will

depend on the.

How you receive them, you whether

you receive them via an agreement

that has terms in it, whether

you receive them without an agreement

that has implied terms and what

those terms are.

Exactly.

So anything that you don't own,

there's going to be restrictions.

So if you've engaged a contractor and

there's no signed agreement, who

owns that material?

The contractor, because the default

is that the human who created it owns

it, unless there's something signed

and in writing.

And of course any carve-outs even

if you pay for it, you tell them

exactly what to do.

If there's not a signed

agreement, then the contractor owns it.

And what you have is you have

a non-exclusive license to use those

deliverables for the purpose that

they're engaged for, but they own

the copyright.

So your use is restricted to.

What you hired them to deliver

to you and for the purpose that they

were delivered.

So for third party materials, let's

say it's client work, and this

is both incoming.

The client has materials that

they've presented to you to work with,

so that's incoming as well as outgoing.

So you've now created something

for the client and you've delivered

it to the client.

Let's go back to this lovely

language where in this case, you

are the contractor and your client

is the one who is getting all of those

rights in what you created as a work

made for hire.

And to the extent it's not a work made

for hire, you are assigning to your

client all rights in that deliverable.

So here you're on the other side

of that language, and so your client

owns 100% of those deliverables.

And I think you know that anyway,

but that is the language that

solidifies that.

And if for whatever reasons you're

doing work with your clients without

an agreement, then you do own

that material.

Of course I don't recommend that

for either party's comfort, but that

is the default.

And then for licensed materials,

so let's say you went through a

certification program and as

part of that certification

program, you have a license to use

the materials.

Maybe there's a framework that

they let you use.

Maybe there are trading

materials that they let you use.

Meaning there a evaluation tool

or an assessment tool that they

let you use.

This part of the license every

license is going to have terms in it.

It will say like for how long you

can use it and.

With whom you can use it.

Is it for internal purposes only or can

you sub license it?

Can you allow third parties to also

access those same tools and materials,

or are there restrictions around

maybe even the type of person that

you can work with?

And so you will want to know, you

understand what's in your license,

and you're going to wanna make sure

that the license.

Covers the use that you need it for.

Sometimes the license will be too

narrow for your use.

I have a client who actually,

they are licensing information from

a database and the default license

limits their ability to use

that database.

Like you can't take the information

from their database and combine it

with your own information, that's

the default license.

But my client actually needs to

be able to combine it with their

information cuz it's more powerful.

They can then, perform whatever

processing with it in order to

create insights.

And so they needed to go back and

negotiate a broader license to not

only have access to the data in the

database, but to be able to integrate

that data with the data in their own

databases to get the full value from it.

Now, does that transfer ownership

of that data from the licenseor

to my client who's a licensee?

No, it does not.

So the license still governs

what they can do.

With the data even permits them to

combine it, but at the end of that

term, when they're no longer paying

for it, they have to remove it from

their database and return it all

to the licenseor.

So you do wanna make sure that,

don't assume that your license

covers all the uses that you need.

where does other come from?

Probably one of the major ones that's

people don't really think about is from

our old employers.

we leave employment and we

take some stuff with us, right?

That we use, that we think aren't

proprietary.

but at the end of the day, whether

or not it's.

A secret is not determinative of

whether or not somebody owns it.

Cuz most materials that are covered

by copyright are not secret, right?

Cuz they have to be registered.

Let's say they have an employee manual.

So we take that with us and maybe

we use that and that's not ours.

That is theirs, it's not yours to use.

Um, maybe there's some templates

like, you services agreements people

might take and those are your

former employers.

Property.

so when we don't have a license, we

are in danger of infringing a third

party's copyright.

So that brings us to our fair use.

The only time fair use comes up

is when lawyers are involved.

So fair use is not something you

want to rely upon.

Basically it means you have used

someone else's intellectual

property without their permission.

And they've come to you and said,

you're infringing my copyright.

And if you feel like, no, I think

I have the right to use this without

your permission because it's fair

use, that means you're claiming

that you're not infringing their

copyright because of fair use.

So that is not an in affirmative, right?

That you can receive upfront.

That's not a safe harbor.

It's something you have to assert if

somebody accuses you of infringing

their copyright.

that is, our overview, a high

level overview of how you can use

an intellectual property that

flows through your business.

We talked about the ways that

it comes in.

Unless you own it a hundred percent,

you're going to be some restrictions.

So you're going to wanna understand

the terms.

Of any agreements written or implied,

you cause you can have implied

licenses as well.

Maybe if you got something from

the internet, we've talked about

Creative Commons.

Maybe it's Creative Commons, maybe you

have a handshake deal and you have

a non-exclusive license.

but you need to understand the

limits of your uses, um, that you.

Are not in danger of infringing the

owner's copyright.

So can the services agreement with

a contractor be by email?

the answer to that is, It can

be by email.

However, in order for you to own the

exclusive rights in the deliverables,

it has to be signed.

So the transfer of intellectual

property rights is one of those areas

of law that you have to have something.

Signed.

And so the transfer of real property

is another one of those areas.

if you do it digitally by

email, you it's enforceable,

so you can make them deliver the

deliverables to you, and if they breach

the agreement, you can sue them,

but you will not get your exclusive

copyright by email.

You cannot get that by email.

Is it fair use if I give credit to the

original material?

No, it is not.

So the copyright owner has the

exclusive rights to make copies,

to distribute it, to perform it,

to display it, whatever the nature

of the material is.

That is their exclusive.

Right.

And giving credit to them does not.

Give them that exclusive ride

that takes away the exclusive, right?

So if you've used the material

without permission regardless of

credit, then you are in breach of their

copyrights, their exclusive rights

to what happens with that material.

Unless you can.

Successfully assert fair use.

So if it is fair use, I assume you

would have given credit, but that is

not determinative.

I am actually writing a newsletter

today as little be on my website,

a blog post about fair use and what

the circumstances would be to assert

and hopefully win a fair use defense.

Well, thank you all so much for

joining me today.

If you have any questions, you can

always reach me through LinkedIn

and you can of course access the

free resources on my podcast website,

hourly to exit.com.

Or through my regular website,

think beyond ip.com, and I look

forward to it.

Talking to you again soon.