Marketing Happy Hour - How to Protect Your Content + Negotiate Collaboration Contracts | Casey Handy-Smith, Intellectual Property Lawyer

Starting point is 00:00:00 Hey, Casey, how are you doing? Hey, I'm doing good. How are you? Also doing pretty well. I'm excited to have you here today. But before we jump in, I do have an important question that we ask all of our guests, and that is, what is in your glass this morning? It is 1030 right now, 930 for you, but what's in your glass right now? Or what are you normally sipping on during happy hour too? So what's in my glass right now is definitely coffee. Early start today, which is most days getting my toddler to daycare and the mom life. I have a whole job before I

Starting point is 00:00:40 actually start work for the day. So definitely 9.30 AM what's in my cup is coffee. But I would say happy hour. What's in my cup. Can't go wrong with a lemon drop martini or a margarita. I'm a cocktail girl for sure. Oh yeah. Same here. Same here. I, my go-to is like an Aperol spritz kind of thing. So I'll always love a cocktail. Well, like I mentioned, we're super, super excited to chat through some tips to help influencers, content creators, entrepreneurs, and brands alike gain a better understanding of contracts and protecting their brand and IP today. It's something that we've wanted to do on Marketing Happy Hour is bring in the experts

Starting point is 00:01:23 in these kind of niche areas that can kind of speak to things that we don't learn in school. And we don't know going into a job how to negotiate these contracts or going into our creator journey how to negotiate these contracts. And so we want our podcast to be a resource for everyone out there who wants to know these things. So that's why we brought you on the show today. But could you first share a little bit about your background and the work that you're currently doing? Yeah, for sure. So I am an intellectual property attorney. So you just stated IP is short form version of saying intellectual property. So I'm intellectual property and digital media law, which is a subsect really of entertainment law. So I've been practicing now for about 10 years. I previously started my practice primarily focused on representing musicians, recording

Starting point is 00:02:18 artists, producers. That's my background is I grew up in music myself as a classically trained pianist and just coming from a very musical family and studied music business in school. And so that's really where I kind of started my journey in this space. And I would say it was about 2016 when I was first kind of introduced to the online business world. And it was so fascinating to me to just see the possibilities of really turning our intellectual property into these assets, where we could really start to monetize our passions, right, in all types of spaces and industries. So beyond just, you know, working with artists and those in the music industry, that's when I first started learning kind of about like blogging and the influencer marketing space. And so I had an

Starting point is 00:03:11 opportunity to kind of get my foot in the door with this, within this particular space, working with bloggers who had kind of turned influencers on accident. They had really successful blogs that they had built out and, you know, we're now being approached with brand deals. And so, yeah, that's just a little bit about kind of, you know, I guess my background and what I do today. So since then I've, you know, continued to work in the influencer marketing space and working with online entrepreneurs in making sure that they are legally protected, particularly with contracts.

Starting point is 00:03:49 So, so cool. And the thing is, too, as you were speaking, I was like, wow, this area did not really even exist, you know, 10 years ago, even it wasn't that prominent, like, you know, seven or eight years ago. So it's fresh and new and people need to know this information. And that's why you're doing what you're doing. I love it. For those who might not be familiar, we touched on IP a little bit, but why is it important to consider that in a contract negotiation? Yeah. So as an online creator, intellectual property is really your primary asset.

Starting point is 00:04:26 It's your most valuable asset because intellectual property deals with intangible creations, right? So speaking specifically for the online creator or influencer, this is your content that you're creating. These are things that are protected or that are considered intellectual property and would be protected under copyright law. So there's different types of intellectual property out there.

Starting point is 00:04:51 If your listeners have kind of heard of things like trademarks and, you know, patents and all that, these are all just different types of intellectual property. But in this space, when it comes to negotiating those contracts, it's really copyright law that you're primarily dealing with. But to kind of answer your question a bit more, it's important because this is what you're creating for brands. It's really the heart of the negotiation. What you're creating is intellectual property, and that's what brands want to be able to use in their campaigns to, you know, reach their various goals. Yeah, absolutely. Yeah, no, absolutely. I think that's great. I think that gives a well-rounded explanation of what it is because I think people out there can be like, oh, well, I'm just creating content. You know, that's just this post that I'm creating and not really realizing that it's your intellectual property that you are giving to these brands. So in terms of contracts and negotiations and things like that, how can an influencer or creator effectively

Starting point is 00:05:56 negotiate with brands for high dollar partnerships in that area? Yeah. So, I mean, I would say the biggest thing starting off is just knowing what to look for in these types of agreements, understanding what the key terms are, having a good understanding of intellectual property. So I would say, obviously, like one of the best terms that's always negotiated deals is usage, right? And usage deals directly with intellectual property. That's what you're actually negotiating. And so I would say understanding what those key terms are, so you know what it is that you're looking for and you understand kind of the value of those various things so that when you are in negotiations, you're not accidentally undercutting yourself or asking too low of rates. One thing that I always like to tell creators is that the biggest, one of the first things

Starting point is 00:06:51 you always have to do in any negotiation is just know your industry, like do your research. You cannot go into any negotiation, not knowing your industry and your research. And so listening to podcasts like this, getting into communities and spaces with other influencers who are getting brand deals and seeing like, okay, what are you asking for? You know, what did this brand give you for this? And so just really being knowledgeable on how the industry works and knowing what terms to kind of look for in those agreements. Yeah, absolutely. What are some of the categories that you can, you know, negotiate in? You mentioned usage. So you could go from

Starting point is 00:07:31 one level of collaboration or partnership, you know, at this cost to a higher cost with the usage rights and how long those are and things like that. Are there any other categories like that that you can negotiate as a creator when speaking to brands? You're saying in terms of being able to ask for a higher dollar amount? Correct. Yeah. Higher dollar. So usage for sure. Exclusivity is another big one. If a brand wants longer exclusivity or if they want to have it, you know, be a bit broader where you can't work with a larger category of, you know, other brands in that space. And that's definitely another area

Starting point is 00:08:16 where you can start to negotiate higher rates if you, you know, they're asking for broader exclusivity. Those are kind of the main ones that kind of come to mind in terms of being able to bring up that asking price. Yeah, absolutely. No, those are great. And I think it's something that's often ignored in the influencer and creator space

Starting point is 00:08:39 is negotiating that usage anyway. Like, you know, they just, a lot of influencers or creators will just accept whatever the brand, you know, outlines in the contract. And it's good to know that you have the power to negotiate a higher price for longer usage or different types of usage where they're maybe using your image on a billboard or something like that. And that's going to be up for a certain amount of time. So you need to consider all of that stuff when you are negotiating with brands. What are some of the most common red flags that you see in creator and influencer contracts and how can they kind of be

Starting point is 00:09:15 rectified? So one of the biggest ones I see, and it's so interesting because what I was like back in like 2016, 2017, you didn't see this much. But over time, I've been seeing more work for hire terms inside of brand deals. And for our listeners, work for hire. So this all ties back to intellectual property. But work for hire is essentially stating that as an influencer, whatever you create for this campaign, the brand will own. And so that is automatically going to be a red flag because especially when you have like the work for hire language, and then there's also usage terms because now the contract is, it's contradictory.

Starting point is 00:09:58 So because usage is, is dealing with, okay, how can the brand use your IP? So it's like, okay, in one section, you're saying that you're going brand use your IP? So it's like, okay, in one section, you're saying that you're going to own the IP with the work for hire, but then we also have usage terms over here. And so that is a big one that I always tell creators, make sure if you do see work for hire language in that agreement, that you negotiate that out, like altogether, like, you know, that's kind of like a full stop I would say um because that's going to hinder your earning abilities like significantly right because now you're not even able to um so like the example you were giving so say usage if they want to use it on

Starting point is 00:10:37 a billboard or some other type of space outside of you know the digital media space you're not even able to negotiate those types of terms if it's work for hire because the brand owns everything. And just kind of like on this point, something I just want to kind of point out, like if you do see that and you're kind of like, you know, why is that happening? It's interesting because a lot of brands, because the influencer marketing space is still relatively new, a lot of brands are using contract terms that fit in other kind of traditional advertising spaces. So say like commercials, for instance, if you do a commercial, like it's, they're going to own that content,

Starting point is 00:11:18 right? And so the influencer marketing space is actually very unique in that the influencer creator, you actually get to own your work. And so I think this kind of goes back a little bit to just understanding the value that you do have as a creator, the fact that you're actually able to own your intellectual property, you're actually able to own this content that you create and monetize off of it in various ways. It's extremely important to make sure actually retaining those ownership rights so that you do have that negotiating power inside of contracts. So I can talk about IP things all day, but that is, for me, that's definitely one of the like

Starting point is 00:11:59 big red flags. And when I first started seeing it come up, I was like, you know, I'm asking around communities and I'm just like, why is this happening? Like, what, what is this about? Right. But I would say that's probably, probably one of the really big ones. I think another one that comes up for creators, when you start talking about compensation, looking at net payment terms, you know, anything past like net 30 is getting pretty excessive right so that would be something that you want to make sure you're negotiating that down as well so that you're getting paid um you know you're getting paid on time um I'm trying to think I mean I feel like there's so many it's so interesting because I feel like brand deals, every contract, while they all have the same overall components, there's so many different things in every agreement. Right. And there's it's just an interesting space.

Starting point is 00:12:55 And I think because so much of it is still evolving is why you kind of see the inconsistencies in contracts, which, you know, can make it a little trickier for creators to navigate. Yeah, absolutely. I've seen it happen to even in like, photographers shooting for brands and trying to negotiate those terms. And I remember one of my close friends as a photographer, and she was shooting for a brand and she did retain the IP for her content or for her photos that she was shooting. But then they used that on like in-store signage and all over the place on there, like merch and all over these, you know, like info cards about these different products. And she had to like go back and say, you know, this isn't right. You know, we need to be on the same page. You need to compensate me for this, which is a big, you know, it's a scary thing, but it's, it's right. It's, it's what's right. So I've definitely seen that happen before. So good that you called that out.

Starting point is 00:13:56 Yeah. And it's kind of like on the same line, I would say, you know, make sure that you're looking throughout the entire agreement for those various IP terms. So I like to search things like licensing, because that's really what usage is. It's really, it's a license. So what I mean by that, so I'll step back a little bit. So what I mean by that is if you are creating intellectual property, so say your content, photographs, like your photographer friend you're talking about, and you're retaining ownership rights of that, and you want to give another party permission to use your property, then that's what we call licensing. And that's all that usage is. But a lot of times in brand deals that can be sprinkled throughout the contract. So don't just

Starting point is 00:14:40 go to the section that says usage. You know, a lot of times there'll be like a cover page on the contract and it'll have like, you know, here are the usage terms. But then later in the contract, you know, the part that's in like 10 point font, there's like all these licensing terms in there that are now conflicting with the usage term. So just making sure that you are actually reviewing all of those terms, like looking at what the actual licensing terms are because in your friend's case it could have been you know I don't know obviously but right you know it's something I see happen where there were a lot of times creators will rule excuse me rely on the usage terms that are kind of in that main like cover sheet and they're like okay I'm okay with that you know

Starting point is 00:15:22 usage will just be for I don't't know, three months. It'll only be on social media. But then like later in the contract, there's something else that talks about, you know, licensing beyond just social media. And like now you run into those types of situations where the brand legally can use the content in these other spaces because you agreed to it, but you didn't realize that you agreed to it. Oh my gosh, absolutely. So definitely do your due diligence when looking through the contracts and reading everything and really understanding what you're signing up for. I think on the converse side too, we have a lot of listeners that are working at brands

Starting point is 00:15:56 and working on these influencer or creator deals with talent out there. And they don't necessarily know what they need to include in their contracts to, you know, ensure a seamless partnership. What can brands do to make sure that they're protected and their talent is protected and that it's a great symbiotic relationship? Yeah, so one thing I like to say when it comes to really the crafting of contracts, you want to make sure that it's balanced. Right. And what I mean by balance is that the terms are really fair to both sides. You know, you have to think about if I were the creator, would I sign this? Like, would I agree to these terms? And I think that's one thing that brands can do. So I would say brands can really guide the negotiations from the outset by just having agreements that are balanced, that do consider what things the creator is going to be concerned about. So for instance, an example, something that comes up all the time is like late payments,

Starting point is 00:17:01 right? So having some terminology in your contract that actually addresses, you know, what things will be in place to ensure that that doesn't happen, or having some sort of options for creators and making sure that they're getting paid on time. And so I would say making sure at the outset that the contracts that you're using are actually, you know, very balanced in that they've already considered what's going to be necessary for the influencer, because it really just cuts down on negotiations. It's like, if the contract is generally already fair across the board, then there's not a whole lot for us to have to go back and forth with, right? So making sure that you don't have something like a work for

Starting point is 00:17:42 hire clause in your contract, because the creator's going to have to come back and take that out or making sure that things are just clear and considering what sort of things the creator is going to need for that campaign. Yeah, absolutely. And I think it's good to take that into consideration when negotiating with creators because then it indicates to them that you value them and you understand what you're doing on the brand side. And it, you know, it could even develop into a longer term, you know, relationship because you understand this creator,

Starting point is 00:18:18 you're doing everything that you can to make it a good relationship. So I definitely always encourage brands to do anything that they can to create those long lasting relationships. And I think one of those ways is to make sure your contracts and everything are beneficial for both parties. I'd love to kind of chat through, we have some listeners who are entrepreneurs and they work with clients and they work with brands on their own. What should entrepreneurs include when creating contracts to ensure that they're protected in their dealings with clients? I don't know if you have seen anything like that before or

Starting point is 00:18:55 just like negotiated on behalf of an entrepreneur before. But if you have any advice there, we would just love to hear it. Yeah, absolutely. So a big part of what I do is working with online business owners where, you know, influencer brand deals may be a portion of their business, but it's not necessarily their entire business. So I work with a lot of, you know, course creators and coaches. And so there are a lot of contracts that come into play in, you know, working with clients. So, and I love this question because it's a common question I get in terms of, and it's typically phrased a little bit more like what contracts do I actually need for my online business? It's kind of like you have, you know, creators who realize like, okay, you know,

Starting point is 00:19:40 I want to have other revenue streams besides my influencer brand deals. And how do I actually make this a business? Like I'm having other offerings and things. And so I would say the first kind of thing is really understanding like what contracts you need. So if you are working with one client, you definitely need a contract, you know, for whatever services that you're providing for those clients. If you are doing some sort of coaching program, you need a contract for the people who are joining your coaching program. If you have a membership, you need terms and conditions for that. So you really just want to make sure you have actual written contracts in place for the

Starting point is 00:20:19 various things that you're offering in your online business, whatever that looks like for you. But if there's something a bit more specific that you're kind of looking for in terms of, you know, what should be in those contracts, you know, I want to make sure I'm answering your question all the way here. Yeah, absolutely. I'm just thinking through like, how can people stay protected? You know, if you're an entrepreneur or a solopreneur, and you don't have like a big brand that has this whole legal team and they, you know, do negotiations or do contracts on behalf of you, how can you stay protected as a person? Yeah, no, 100%, 100%. Yeah, so there are a lot of resources out there.

Starting point is 00:21:01 I actually have a contract template shop that I created. It's been several years now called Boss Contract Society, where I actually offer contract templates for online businesses and online creators. And I did that for that very reason, you know, understanding that everyone can't afford to hire my firm to come in and draft custom contracts for everything that they need. And quite frankly, a lot of the contracts that creators need, especially when you're starting out, you really don't even need, you really don't need a custom agreement that you're spending thousands of dollars on. You need a pretty, you know, standard agreement that you can kind of go in and edit to fit

Starting point is 00:21:39 your specific needs. And so there are resources out there. I think I might've shared that link with you. If not, I'll make sure that I share that link with you for Boss Contract Society. But yeah, we have a variety of templates for all types of offers. So I mentioned like coaching, memberships, one-on-one services, website terms, privacy policies. There's quite a few, when you really start to look at what you're doing in business, there are quite a few contracts that you will need, but we offer all of those there at Boss Contracts Society. Oh, that's so helpful. And we will

Starting point is 00:22:09 definitely link that in the show notes so everybody can find it. Another thing that I wanted to chat through too, you do have a resource called Discover the 10 Most Important Terms to Look For in Every Brand Deal. Could you just walk through that resource a little bit? And then we'll also include the link in the show notes for people to go ahead and grab that. Yeah, for sure. So this is a free resource where it's a checklist as well as a private podcast. And the checklist just goes through kind of the key terms that you should be looking for

Starting point is 00:22:38 in every brand deal. And if you don't see it in that contract, you need to add it and include it in the contract. So it goes over things like, you know, your deliverables and your compensation terms, you know, do you require deposits? Do you, you know, so breaking those types of things down, intellectual property, like we've talked about usage, exclusivity, FTC, FTC disclosures. We didn't talk a lot about that here, but so that checklist just goes through all the things that you'll need to make sure is in every brand deal and that you'll see inside of brand deals. And it provides you guidance on what those things actually mean and what you should be considering as the creator when you're going into those negotiations. And the private

Starting point is 00:23:21 podcast just goes a bit further into explaining, you into explaining the most negotiated terms and contracts. I talk more about IP and usage there and also breaking down what the actual negotiation process looks like. One thing that I know, kind of one of the most common mistakes that I see creators make in negotiations is relying on the brand to edit their contracts for them. And a lot of it is simply because they just don't feel comfortable making the edits themselves. They're like, I don't really know like what language to use and what things to include in my contract. So in that private podcast, we talk more about what's known as redlining, which is just editing a contract. It's just simply going in and making changes.

Starting point is 00:24:08 So talking through kind of the process of what it means and what it looks like to redline contracts so that you can effectively close deals that actually protect your rights and make sure you're not leaving money on the table. Because there's a lot of room for human error in negotiations. The things that you talk about in emails don't always make it to the actual contract. So as a creator, you have to do your due diligence and making sure that what you've negotiated with the brands and emails actually makes it to your contract. And so that private podcast is a four-part episode where I dive into more of the actual negotiation process.

Starting point is 00:24:44 Oh my gosh, that is such a great resource. And I love that you have that because I know a lot of creators personally who could really, really use that. So I will be passing that link along, but we'll also link it out in the show notes for everybody listening. But we love to close out with a question that we always ask our guests as well. And that is, what do you know now that you wish you knew a little earlier on in your career? What do I know now? Hmm. I would say that go with your gut and your purpose always finds you, you know, for your listeners who are entrepreneurs or who are looking to kind of forge that path of entrepreneurship, you really have to trust yourself in that process. I've been an entrepreneur now for, you know, over 10 years.

Starting point is 00:25:32 And so it is a, it is, I always like to say entrepreneurship is the biggest like road of self-discovery, therapy, like all of the things. And so I would say, you know, trust the process, trust your gut and know that, you know, the work that you're doing is impactful and that your purpose always finds you. Oh my gosh. I love that. And I couldn't agree more. Well, Casey, this has been so good. We'd love to just let everyone know where they can find you and follow along with what you're up to and find, you know, future resources to come. So where are you online? I am contract Casey, really everywhere. Instagram, LinkedIn, I'm actually really active on LinkedIn. I love LinkedIn. And you can find me over there just at my name. So Casey Handy Smith.

Starting point is 00:26:19 But I'm contract Casey really everywhere else. And yeah, I think the website, we already, Boss Contract Society, we'll make sure that's in the show notes. But you can connect with me on social media at Contract Casey. Fantastic. Well, thank you so much for joining me today. This has been, like I said, just an amazing conversation. I think people will really get a lot of value from it. Yeah, thank you so much for having me.

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Marketing Happy Hour - How to Protect Your Content + Negotiate Collaboration Contracts | Casey Handy-Smith, Intellectual Property Lawyer

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