The first question I get from my one-person business owner clients is usually about business entity.

Can they keep running their business as a sole proprietorship, or do they need to form an LLC or S-Corporation? 

So here’s an infographic I just created (using Piktochart), if you’re thinking about staying a sole proprietor, to give you an idea of what to consider when you’re making that decision.

Btw … occasionally, it is the right thing to do.

The post Should You Run Your One-Person Business as a Sole Proprietorship? appeared first on EPW Small Business Law PC.

Over the years, I’ve created tons of free stuff (53+ different classes, videos, audio interviews, and pdf’s) where you get them only after you sign up for my email newsletter.

It’s a classic internet marketing strategy to build a list, and I’ve used it to get thousands of people. And yep, I’m still using it today.

But for my latest giveaway, I did something different.

I gave away my pdf “Legal Checklist to Setup & Run Your One-Person Business” without requiring anything from people. No opt in. Just click and directly download from a link or a button on my website.

It’s so interesting … no opt-in shocks people.

People have thanked me *solely for the fact* that I didn’t require an opt-in, or told me that I *should* require an opt-in when I give away something of value.

The reason I didn’t do opt-in with this one, is that I’m not using it to build my list. I have other things in mind.

Here’s what I mean.

There’s a few different strategies behind giving away good stuff.

Reason #1: Build the List.

I typically do this with free classes or webinars. It makes sense to have people sign up for them, so they can get the reminders of the live class, and follow-ups with the recording. You need to have that communication so they will show up live to the class, so the required opt-in seems like less of an arbitrary-withholding-move. It makes sense.

I’ve also done this successfully with a long series of interviews that was distributed in a one-interview-per-day system, via email (The Live Your Truth Project).

Reason #2: The Free Sample

It depends upon your business model, but for someone like me, it’s extra important to give people a free sample of who I am and how I work, so they can “try” me before they sign up.

I don’t have a low-priced offer or give away free legal advice, and people need to get to know me, and believe I know what they need, before they sign up for an entire year. Some people get this from the blog and others from interactions with me on Twitter or Facebook – but others need something take-home and implementable.

Reason #3: Help People Differentiate Themselves

Some people will take your free tool and use it to solve The Problem themselves. Great! Yay for them!

They were never going to hire you anyway. They are Do It Yourselfers.

But some people will take your free tool and will be like OMG I see what this is and why it’s important but I’m overwhelmed and totally don’t want to do it by myself. Please let me pay you money so you can do it for me!!

(And btw, those DIY people will *love* you for giving them the tool that helped them solve your problem. They will pass on your Share-Worthy tool to their friends and colleagues and it will be lovely.)

Reason #4: Create Something Share-Worthy

How many times have you read a Free Special Report or watched some 35 minute Secret Video and it’s just a freaking long form sales letter!?!?!?

Ack. It’s annoying because it’s not what you bargained for.

Hey, I have a long form sales letter on my site – that’s not the issue. When people go to my Services page they *expect* that kind of information. They aren’t bargaining for it when they get a Free Tool Thingie.

Of course, there’s nothing wrong with having a call to action, description of your work, or something upselling them to for-money services. This isn’t a freaking non-profit. But the Free Tool Thingie you create needs to have actual value (not just bullshit “$97 value!” value).

Here’s the thing.

You want the person who reads or listens to or watches your Free Tool Thingie to think it’s freaking amazing useful and *want* to share it with everyone. They are willing and even joyful to spend their reputation, their social capital on sharing your Free Tool Thingie because it’s totally Share-Worthy.

So make it good.

Reason #5: Make It Easily Pass-On-Able

People are more excited to share a blog post, You Tube video, Pinterest infographic, free Amazon.com Kindle book, or downloadable pdf, than something behind a opt-in wall.

Why?

For two reasons.

Reason One: It’s easy.

All they have to do is hit Share or RePin or whatever, and it’s shared with their people.

And in my case, I licensed the checklist under Creative Commons Share Alike – so people have another option than just sharing the link – they can take the pdf and upload it to their own site, print it out, including it in an upcoming book (true story), or use it however they want, as long as they don’t change it.

Reason Two: It’s actually free.

Don’t mistake. The thing behind the opt-in wall isn’t free.

Yeah, it doesn’t cost cash money … but it does cost contact information. Space. Energy. Access.

And many people are not willing to share something that insists on a payment before the first date.

This no-opt-in checklist is an experiment.

To see if this tool attracts new clients (Free Sample & Differentiate), to see if people find it Share-Worth and Pass-On-Able, and to see if licensing a creative work really helps to spread it wider than tightly controlling the copyright.

Now, I don’t have a cool punch line re how many times it’s been downloaded, because I didn’t realize you could set up Google Analytics to track pdf downloads. (Oops! Now I know how, and will set that up.)

But hopefully I’ll update this post soon with some great results. Or, at least, it will be a great learning experience.

–

Do you give away stuff behind a opt-in wall, or can people just download it off your website? Or do you pass on your stuff in some other awesome way?

I’d love to hear from you below!

The post No Opt-In Required: 5 Reasons to Give Away Your Best Stuff appeared first on EPW Small Business Law PC.

Recently I read a blog post about someone who doesn’t sign any contracts – with business partners, joint venture partners, employees, or contractors.

They just “shake hands” – as if that is somehow more spiritual or honorable than drafting a (scary? icky? overly-formal? long? non-soulful?) contract.

This is a *huge* pet peeve for me.

But … not for the reasons you think.

Yeah, I can tell you all kinds of legal, tax, and liability reasons you need a written contract.

But that’s not the most important reason to write things down.

The point of a written contract is to manage expectations, so we can protect our relationship.

The thing is, most people who enter into agreements have a pre-existing relationship.

We are best friends. Lovers. Business partners. Colleagues. Neighbors. Family. Our kids go to school together. We go to the same church or club or coffee shop.

Contracts are there to make sure that this thing-we-are-doing does not mess up our relationship.

The idea is that we write down what I expect you will do, and what you expect I will do. We write down what happens if this goes well, and what if one or both of us wants out. We set expectations and agree to stuff now, when we are all romantic and optimistic and still care about each other. Before anyone gets upset, bitter, passive-aggressive, bored, frustrated, or disappointed.

The contract doesn’t need to be legalese. It doesn’t need to be scary or even expensive. It doesn’t need to take you out of your spiritual, soulful place.

Contracts can be created out of love.

Love for our business, for our clients, for our purpose, for ourselves, and for each other.

From a commitment that *people* are more important than things. People are more important than money. People are more important than being all superior about how we don’t do icky scary formal legal things.

So for all of your business relationships, I recommend that you write things down.

Not to win the lawsuit.

But to keep your friend.

The post Is it more “spiritual” to shake hands, than to sign a contract? appeared first on EPW Small Business Law PC.

On the EPW Small Business Law PC Facebook Page, Liz asked: “What about posting/using all those snazzy quotes with images that you see shared by friend on Facebook? Some will have an originating website (and I wonder if they own the images, many use quotes and attribute the quote author but not the image creator) and I wonder if the “design” is copyrighted by that site, or perhaps they don’t have the rights to one or the other. Or if we save those quote/images to share later, and do not have the original copyright owners.”

There’s more than one potential legal issue here. Let’s start with the photo.

In the United States, when a photo is taken, the photographer immediately has a copyright on that photo.

That copyright gives the photographer the right to restrict the use of that photo.

So if you copy it, print it out, use it on your website, or upload it to Facebook – you are violating their copyright and are subject to statutory damages of $750 to $30,000, even if the photographer was not actually harmed by your use.

Crediting them, linking to them, or otherwise acknowledging them doesn’t fix it. You are still violating their copyright, even if you include their watermark/name/website.

The only way you can use a photo is to have a permission, aka a license.

There are a couple ways that a photographer may grant a license.

Direct License: You go to the photographer and pay them money to use their photo, or they just give you a license for free. This happens a lot when we hire photographers to take pictures of an event or if we personally know a photographer who casually gives us permission to use a photo.

Stock Photo License: Some photographers make money by licensing their photos through a mass stock photo site such as iStockPhoto or Corbis Images. There, the photographer uploads their work to be licensed via their service, and we contract with them to use images per the terms of the stock photo site’s license from the photographer (paying $49 per photo to use for three months, for example).

Creative Commons License: Photographers may license the entire world to use a photo, according to certain terms. Creative Commons has a set of attorney-drafted licenses that people can opt-into, so their creative works can be used and spread to the world. For example, a photographer may state that their photo can be used per the Attribution-NonCommercial-NoDerivs license, which means that anyone can download and share the photo, as long as they are credited, and it is not changed or used for commercial purposes. One great place to get Creative Commons photos is through Flickr.

Terms of Service: When a photographer uploads a photo to Twitter, Facebook, or Pinterest, for example, they are giving that service a license to use that photo according to that website’s Terms of Service. This does NOT mean that you can just download their picture and use it on another site or for another use, as AFP, Getty and the Washington Post recently learned (lawyers readers can read more at Agence France Presse v. Morel, 2013 U.S. Dist. LEXIS 5636 (S.D.N.Y. 2013)). But it does mean that you can RT, Share, or Re-Pin the post *within the same site* and it is still a licensed use via that site’s Terms of Service.

But what if *someone else* uploads the photo to the social media site?

Let’s say that someone takes a photo off the photographer’s website or Twitter account, and posts it to Facebook, without the photographer’s permission.

Perhaps they credit the photographer, or perhaps they claim it as their own. Whatever.

And then you hit the Share button, because you want to share this cool picture with your Facebook friends.

Are you liable for copyright infringement?

Hum.

Here’s the thing.

When someone took that photo without permission, they were stealing it.

Even though they didn’t charge money for it, even though they just thought it was cool and wanted to share it with people, and even if they credit the photographer’s name and link to the photographer’s website.

It’s still taking something that belongs to someone else and using for their own purposes, without permission/license.

Posting it to Facebook didn’t change that fact.

When they posted that picture to a social media site, under the site’s Terms and Conditions they are promising that they own it or have a license to it. They also promise to indemnify the site (be accountable to them for damages/attorneys’ fees if the site gets in trouble for posting the unlicensed photo).

When you come along and unknowingly hit the Share button on that unlicensed photo, Facebook has protection (because they are indemnified by that person who posted it), but you don’t.

Perhaps you’d be able to argue that you are a third party beneficiary of Facebook’s Terms of Service, as far as it goes to Sharing the photo on Facebook itself, and should also be indemnified by the original poster for your actions. There are some interesting arguments that haven’t been fully litigated yet, and it’s not terribly likely that individuals will be sued.

But yes, technically, you are on the line.

But what about the Fair Use Doctrine?

Under copyright law in the United States, certain uses of a copyrighted work are allowed as fair use, such as for “criticism, comment, news reporting, teaching, scholarship, and research,” according to a four-factor test that is applied by the courts. But this is a really messy doctrine that is never a clear case. It’s not enough that you are reporting the news or not charging for the photo. Typically, it only applies to uses that are non-commercial, that use only a small portion of the work, and that don’t diminish the ability of the creator to sell the work.

Short Answer: posting an unlicensed photo to your business Facebook Page is not going to qualify as fair use.

There are also other legal issues involved, including whether the photographer had a model release from the subject(s) of the photo (giving permission for their likeness to be used, especially if it seems they are endorsing something), and whether the use of the quote or inspirational words is fair use or an infringement of a copyright on the quote (or even possibly trademark infringement).

Here are best practices for using photos online:

Only use licensed photos. Take the photos yourself, use photos licensed through Creative Commons on Flickr, or buy licenses to photos on a stock photo site. There are tons of photos available online at no or minimal cost, with just a bit of search.

Don’t pull photos from one site to use on another site. If you’re going to Share, Retweet, or Re-pin a photo within that social media service, that’s one thing. But never take a photo from one social media site (or blog, or website), and put it on another site, unless you took the photo yourself.

Always keep watermarks, attributions, and links. Don’t ever launder a photo for your own purposes. If the photographer put their logo or name in the corner, don’t crop around it. If you need a non-watermarked version of the photo (to use as your profile picture, for example), you need permission. Btw, this is true even if you are the person appearing in the photo.

Check snopes/google before you share “amazing” viral photos. Just because something is on the internet, doesn’t make it true. Always take 20 seconds to verify authenticity before you pass on something (that may be crap) to your people.

Never steal photos. Photographers deserved to be compensated for their work, just like you do. If you see a photo you like, ask permission to use it. If you need a photo for your blog, buy a license to a photo or take a photo yourself.

(Btw, I took the above photo myself. As such, I can use it here. Taadaa! ) 

The post Can You Get Sued for Sharing that Viral Photo on Facebook? appeared first on EPW Small Business Law PC.

On LinkedIn today I received a message about my profile picture.

Someone I didn’t know stated that since I was going back to practicing law, I should get a more formal, professional profile picture.

Just sayin’ 

After considering the source (aka checking out his “web 2.0 expert” profile), snarking to my BFF, and asking Facebook people how to unConnect with someone on LinkedIn, I followed my own advice, and did not engage.

I’ve written about criticism and trolls before, and we can also refer to Scott Stratten’s pithy advice: “You’re not the jackass whisperer.”

But, of course, it’s not always that simple.

I always wonder – is this person right?

Is this good feedback that I should take into consideration? Do I actually need a profile picture of me in a lawyer-suit for potential clients to take me seriously?

But unsolicited criticism like this is fundamentally different than valuable feedback.

When you get feedback from a coach, a best friend, a trusted colleague, a client, someone you respect – especially when you solicited it – then that feedback should be considered. You still don’t have to let it in, because that person may not understand where you are coming from, or you may realize that it’s not something you’re able or willing to change right now. This person you respect is trying to help you, even if their feedback is not something you’re going to implement right now or ever.

Unsolicited criticism, especially from someone you don’t know, isn’t about giving you feedback.

It’s not about helping you.

Unsolicited criticism about cutting you down to their size.

You see, in all of your power, you are scary. Threatening.

Perhaps because you are making them consider what they could do. How they could be powerful. How they could make different choices to live their truth and change the world and do what they really desire. That even though it’s possible for them too, they don’t have the guts to make that choice.

So the criticism is a self-defense mechanism, emasculating your power to make you less scary.

If this ickyness is coming from someone for whom I take responsibility, I can try to build them up so they don’t find me scary. Through complementing them, appreciating them for how they are contributing, or whatever love language tool works to make them think and feel greater. Then, the icky criticism may dissipate.

But if it is from someone that is outside of my jurisdiction, the best option is to walk away.

Yes, perhaps that person is still criticizing or even abusing me to my back. But there is nothing I could possibily say or do to change their mind or convience them of anything. They are not interested in reasons, and they are not in learning anything.

They are interested in avoiding fear. Avoiding change. Living in a world that satisfies their preconceived notions of how it should look.

And I need to spend my energy on the people, projects, and joys in my jurisdiction.

The funny thing is that I was actually happy to receive his critical message, because it meant that my marketing works.

Are there people who will not hire me because my profile picture isn’t a lawyer-traditional woman-in-a-suit?

Yes. Thank the Lord. 

Because someone who needs a conservative, traditional looking lawyer would make a terrible client for me!

Here’s the thing.

My marketing – on social media, email, website, videos – is expressly designed to differentiate people as early as possible.

So people who need something I don’t provide (including lawyer-in-a-suit) learn asap that they need to go somewhere else. There’s no reason to waste any more of our time.

So yes, unsolicited LinkedIn critic, my profile picture does not meet your standard of “lawyers should wear suits and appear in pictures before navy blue backgrounds because that is how I think lawyers should look.”

Hell Yes.

Thank you for noticing.

Now go find yourself another attorney, and have a nice day.

The post On Trolls, Unsolicited Criticism, and Being “Unprofessional” appeared first on EPW Small Business Law PC.

Now that we all have email, websites, Paypal, Skype and e-books, it’s easy to find yourself selling your products and services outside not only your local state/province, but also outside your country.

Not only does this make it logistically more complicated (merchant accounts tend to freak out) – but there are major legal complexities you inherent just because you are doing business in a country different than your own.

Recently on the EPW Small Business Law page on Facebook, Sharon Ffrench McMillian asked about what laws affect Canadians who are doing business inside the United States. Instead of just addressing Canadians in the U.S., I’m sharing the general issues that apply to all of us, regardless of country of origin.

Here’s an overview of the legal complexities you need to be aware of when you start doing business or selling products/services outside your own country – so you know the potential issues and when you need to get help.

1. When you do business in another country, you are subject to that country’s laws.

Obvious, but easy to forget –> if you do business in another country, you have to obey their rules.

Which means that you first need to *know* about their rules.

Keeping up with with the rules of each country is a freaking extravaganza. Not only because you need to research and/or hire an attorney in each country, but also because the laws of other countries may be fundamentally different than yours. Even simple things like whether a contract offer can be taken back before it is accepted is radically different in the U.S. versus much of Europe, for example.

Since we obviously can’t cover every area of law, here’s a sample of the kinds of issues you run into:

Custom Requirements. When you send your products via mail/shipping into another country, you are subject to their customs, taxes, fees, and other importation requirements. Back when I shipped products overseas, I used a fulfillment house who knew the rules, because I had no desire to keep track of the different paperwork and fees required for Canada versus South Africa versus Portugal versus India etc. If you are shipping physical products out of your country, either hire a fulfillment house or make sure you have researched or obtained advice on how to set up compliance with the various paperwork, taxes, and other requirements of each country.

Copyrights & Trademarks. Just because you have a copyright on your book and a trademark on your tag line in *your* country, doesn’t mean you have any protections against infringement in every other country.

Now don’t freak out yet.

Most countries have agreed per the Berne Convention (and other treaties) that if you have copyright protection in your country, other countries will respect that copyright as if it had been obtained per their requirements. Most countries have signed onto these treaties, but a few have not — so if you have a large presence in a particular country, you may want to check the list.

Trademarks, however, are different. First, a bit of background. As I discussed on the Facebook page recently, trademarks are not a “right” arising because you created or invented something (like copyrights and patents). Trademarks are a consumer protection law, to protect consumers from the “likelihood of confusion” – so they don’t think they are buying a Pepsi but are actually getting a counterfeit Pepsie.

Here in the U.S., you can get a trademark in two ways – a common law (mostly local-only) trademark just by using your word/logo/phrase in the connection of the sale of goods/services, or you can formally register for your trademark with the United State Patent and Trademark Office for use in particular industry areas. Getting dibs on a trademark is about who is “first to use” that trademark in commerce.

That’s different than some other countries. In some places (like the European Union), who gets the trademark is based upon the “first to file” for the trademark registration, not who uses it first. Some countries have agreed to a common international trademark registration processes, but it has not been standardized across all countries. (For more info, see these Toolkits.)

And, don’t forget – when you are in another country (such as when your website is accessible from that country), you may get cease-and-desist letters from trademark holders in that country. I once got such a letter from someone in Canada for allegedly infringing her Canadian trademark on the word “mompreneur” – I emailed back re the generic status of that mark and also that I wasn’t in Canada (at the time, I didn’t yet have clients there). After a few more emails, she went away – but she theoretically could have pursued an action to enforce her trademark.

Industry/Profession Specific Rules. As an attorney, for example, I need to make sure that my website states that I’m licensed to practice in the United States (California and the USPTO, to be exact) and which state/country’s law I’m referring to when I write a blog post. Similarly, if you’re a licensed counselor, you may not be allowed to offer your services to someone in another country without being licensed there. There are also professions and industries that may not be regulated at all in one country, but in other countries, you are required to be registered or licensed to practice or to sell those types of products. Make sure you check what rules apply to your line of work.

“Working” in Other Countries. Are you traveling to an international conference for a speaking gig? Going to meet a potential client at a Starbucks to talk a potential business deal? Getting a table at the trade show to display your wares?

You may need a business visa, a work permit, a business registration, or another formal documentation to legally do business while you’re traveling in another country.

For example, if a citizen of another country travels to the U.S. for a speaking gig, they may need a B-1 business visitor visa. And, that visa is only applicable if they don’t receive a salary or other income from the gig – and are compensated via only expense reimbursement and in some cases, an honorarium (with restrictions). At a certain point, that speaker may need a work permit. In Canada, a U.S. citizen speaker doesn’t need a work permit if they are speaking at an event that is no longer than five days.

Under the North American Free Trade Agreement (NAFTA), business visitors between U.S., Mexico, and Canada can go to the other member countries to sell goods or negotiate contracts for the sale of goods, but they are not allowed to deliver the goods or provide services on the same trip without going through additional requirements. And, of course, NAFTA does not apply outside of North America.

If you decide to do business on an ongoing basis in another country, you may need to register as a foreign business in that country/provence/state, pay taxes or other fees, and associate with a local agent (for service of legal documents or complaints). It’s difficult to know where you cross that line when you’re doing business online – but if you are going there in person, you definitely need to address these issues.

Privacy Policies, Disclaimers, and Spam. If you have a website, people from other countries can access it, give you their contact information, and potentially buy your products and services. As such, you need to comply with the rules for websites and emails by those other countries (especially if you are also doing business there).

For example, if you send mass emails to U.S. email addresses, you need to comply with the CAN-SPAM Act – including such requirements as having a real physical address in each email, requiring people to opt-in before you email them, having opt-out instructions in each email, and other advertising disclosure requirements. If your website targets children under age 13, you also need to comply with the U.S. Children’s Online Privacy Protection Act (COPPA).

This isn’t just about U.S. federal law – if you have Californians going to your website and signing up for your email list, you need to comply with the privacy policy rules of the Online Privacy Protection Act (OPPA) of the state of California. Yep – even if you aren’t located in California.

Employment Law. Do you have a virtual assistant or other staff in another country – and is that person an employee (per *their* rules)? Are you complying with the local employment laws, regulations, taxes, paperwork requirements?

It is common for us to have vendors and assistants who are virtual, or even local to an in-person event (a conference, for example) – but are not at our regular place of business. In your country that person may be a contractor, but in another place, that person may be considered an employee. In some places you are not allowed to have unpaid “volunteers” or interns. You may be required to comply with payroll tax, benefit, workplace safety, and other employment regulations – even if you are not physically located in that other country.

2. Pre-determine what law would apply to your business deals, and where any disputes would be resolved.

In your contracts, you can elect Choice of Law and Choice of Forum. Choice of law mean you decide which law applies, by inserting a clause in your contract (or website terms of service). Which law applies is governed per the conflict of law rules of where ever your lawsuit is located. Choice of forum means a clause in your contract/terms which states where any dispute will be resolved – private arbitration, mediation, an international court or arbitrator, the court of the country of one of the parties, or the court of the country of where the transaction/dispute/damages occurred.

And, just because you file a lawsuit about your business deal in state court in California, for example, doesn’t mean that California state law would apply and that the lawsuit would stay in that court. It could be removed to federal court, it could be dismissed so you could refile in another state/country, or it could stay in California but the court may apply the law of a different state, a federal law, or law of an international agreement, such as the UN Convention on Contracts for the International Sale of Goods (CISG) or NAFTA.

Not only does this matter because of convenience and expense, it also matters because the law may be radically different. For example, in some places, the loser pays the attorney fees of the winner of a lawsuit – but that’s not true in the United States except in particular circumstances. The laws themselves may be different – in one place you may have a contract – while in another country, the contract didn’t yet exist.

Obviously, the more this can be determined ahead of time, the better.

3. Review miscellaneous legal and logistical details of your transactions.

What currency are you using for this transaction, and what day are you calculating the exchange rate? Are there taxes owed on the transaction – and who pays those taxes? Who is responsible for the legal compliance?

Will your merchant account accept out-of-country addresses or credit cards, for your online transactions? Do you accept Paypal in those countries? Do you need an alternative merchant account for those transactions?

4. Does any of this matter if you’re not located in that country?

Yep, this is complicated. Obviously we can’t all learn the rules of over 100 countries.

So at what point is it worth it?

Here’s what can happen. Let’s say a foreign corporation gets sued in the United States by a U.S. company. Instead of hiring a local attorney, the foreign corporation just ignores it, thinking that since they are not located in the U.S., it doesn’t matter.

Are they right? Well … it depends.

The U.S. company gets a default judgment against them. They prove up damages and get a judgment against the foreign corporation. And then, they go to try to enforce the judgment. That means going after assets the other company has in the United States (bank account, inventory) or an associated company (insurance policy, subsidiary), or going to the foreign corporation’s country to enforce the judgment there (which is a very complicated process). It may be halting the foreign company’s ability to import those goods into the U.S. Perhaps they also wait until the CEO or other owner/officer is in town, and then serve them personally. Depending upon the circumstances, in some countries this could theoretically involve detainment and/or not being allowed to do business and/or even travel to that country.

So, if you only sell a few products/services in a country, have no assets there, and never travel there – perhaps the risk is low enough where you’re willing to not worry about the rules. That’s a judgment call.

But if you travel in person to that country, have assets there, and really need to continue to do business in that country – you need to know their laws and regulations so you can make an intelligent decision about which rule you will ignore – and which rules you’ll comply. 

The post Do You Sell Products or Services in Another Country? Welcome to the Legal Morass of International Business appeared first on EPW Small Business Law PC.

It’s going around again.

Those chain-mail Facebook posts about how you lose rights to your content unless you post some alleged disclosure warning to the government, citing a random UCC section (btw, those crappy Facebook privacy notices are a total myth).

But it raises an important point.

Who owns your content when you post it to a social media website (or any online software system)?

The general rule, is that as soon as you write a post, take a photo, or record a video, under U.S. law you have a copyright on it, and in most cases no one can use it without your permission.

For those of us who make a living off of our work – either by directly selling those creative works or by using our content to drive traffic to websites where we sell products and services – we especially can’t afford someone using our creative works without compensating us.

So how much control are we giving away when we post a video to Facebook, share a picture on Instagram, or upload a file to Dropbox?

To find that answer, you have to get into the Terms & Conditions of each service – which is for the most part, written in legalese.

Let’s use Facebook’s Terms as an example.

“You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.”

Unlike what many people say, you still own your content. You still have a copyright on it. Facebook doesn’t “own” it. However, that’s not the whole story.

“For content that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License).”

When you post content on Facebook, you are giving Facebook a license to use your content. They have to have this license to post it on your Profile or Page, and to share it with your friends or fans.

This license is:

• “non-exclusive” – you could license that content to other people. You probably do, when you post that same picture on Instagram or upload that same video to YouTube.
• “transferable” – this means that if Facebook got bought by someone or decided to sell their license on your content to some other company, the new company would have the license without needing additional permission from you. This could be especially weird if/when Facebook goes under and goes into bankruptcy … but what could happen to your content when a company goes bankrupt is an entire other blog post.
• “sub-licensable” – Facebook can give another company permission to use your content, without needing additional permission from you. They need this so they can share your content with Apps you approve and other such services.
• “royalty-free” – Facebook doesn’t have to pay you money for each use.
• “worldwide” – applies everywhere, even outside of the country in which you are located. Logistically, Facebook needs this to function, since it’s all over.

“This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it. When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. However, you understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).”

There was a huge broohaha about this a while ago. If you don’t want Facebook to have this license anymore, you can either delete the content or delete your account. However, if someone shared your content on their own Profile/Page, for example, it might not be deleted from that person’s account. Also, nothing is immediately deleted, since it takes a while to propagate through all the servers of Facebook, and to be overwritten on all the hard drives.

Twitter’s Terms are very similar.

“You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).”

Plus Twitter includes a bunch more language about how they can change your content so they can distribute it over other networks or services. Since 140 characters probably doesn’t require much change, this language may be more about the photos you post.

Twitter has no deletion policy that I’m aware of – probably due to a combination of logistical issues and the fact that people aren’t posting as much non-public content, like they do on Facebook. It’s interesting though that I haven’t heard much complaints about this issue.

LinkedIn seemed to feel the need to use even more commas.

“You own the information you provide LinkedIn under this Agreement, and may request its deletion at any time, unless you have shared information or content with others and they have not deleted it, or it was copied or stored by other users. Additionally, you grant LinkedIn a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any information you provide, directly or indirectly to LinkedIn, including, but not limited to, any user generated content, ideas, concepts, techniques or data to the services, you submit to LinkedIn, without any further consent, notice and/or compensation to you or to any third parties.”

Like Facebook, LinkedIn includes deletion rights, and the typical license clauses.

However, LinkedIn has a bunch of language about how they can use your content including your “ideas, concepts, techniques or data” which is interesting – as if they are going to use your business ideas to create their own products and services? Unlike Twitter’s language which seems to limit derivative works (derivative works are somewhat-new creative works that are based on your work) to the natural working of Twitter and its’ partners, LinkedIn seems to go further.

Instagram (now owned by Facebook) has a similar clause.

“Instagram does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the Instagram Services. By displaying or publishing (“posting”) any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly (“private”) will not be distributed outside the Instagram Services.”

Curious how their clause includes reference to video and musical works – perhaps those are future projects of Instagram? Instagram also includes language about how they can “publicly display” your work – so they could put your picture up on a billboard in Times Square, without additional compensation to you, or your permission.

Also interesting is some language in Instagram’s advertising clause:

“Some of the Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.”

Here, Instagram could put advertising *on* your picture, without your permission. Ick. Hope they don’t implement that idea.

But I didn’t want to just look at some social media sites – most of us also upload our copyrighted content to other sites – for backup, collaboration, and cloud data purposes.

Google Services Terms

“When you upload or otherwise submit content to our Services, you give Google (and those we work with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. This license continues even if you stop using our Services (for example, for a business listing you have added to Google Maps). Some Services may offer you ways to access and remove content that has been provided to that Service. Also, in some of our Services, there are terms or settings that narrow the scope of our use of the content submitted in those Services.”

Oy. I say oy because except for Google+ and a few other social media type services, content you’ve uploaded to Google isn’t for public display. It’s for private and collaborative use, such as Gmail, Google documents/drive, and Google apps. So while I do want Google to be able to display my content in ways I have specified, these “publicly perform, publicly display” terms make me nervous.

Also, apparently deleting means nothing to Google. They retain your information and retain the license. I looked in Gmail and Google drive and couldn’t find any additional terms specifically for those applications. So be aware – once your content is uploaded to Google Drive, for example, it may be there forever. Even if you delete the content and your account.

Basecamp Terms of Service 

“We claim no intellectual property rights over the material you provide to the Service. Your profile and materials uploaded remain yours.”

Love. Btw, I use Basecamp for the project management of my legal client accounts.

Dropbox Terms of Service 

“By using our Services you provide us with information, files, and folders that you submit to Dropbox (together, “your stuff”). You retain full ownership to your stuff. We don’t claim any ownership to any of it. These Terms do not grant us any rights to your stuff or intellectual property except for the limited rights that are needed to run the Services, as explained below.”

“We may need your permission to do things you ask us to do with your stuff, for example, hosting your files, or sharing them at your direction. This includes product features visible to you, for example, image thumbnails or document previews. It also includes design choices we make to technically administer our Services, for example, how we redundantly backup data to keep it safe. You give us the permissions we need to do those things solely to provide the Services. This permission also extends to trusted third parties we work with to provide the Services, for example Amazon, which provides our storage space (again, only to provide the Services).”

Love. I especially enjoy how they use the word “stuff” in their legal writing. Btw, I use Dropbox as offsite electronic storage of my documents.

iCloud Terms and Conditions 

“Except for material we may license to you, Apple does not claim ownership of the materials and/or Content you submit or make available on the Service. However, by submitting or posting such Content on areas of the Service that are accessible by the public or other users with whom you consent to share such Content, you grant Apple a worldwide, royalty-free, non-exclusive license to use, distribute, reproduce, modify, adapt, publish, translate, publicly perform and publicly display such Content on the Service solely for the purpose for which such Content was submitted or made available, without any compensation or obligation to you. You agree that any Content submitted or posted by you shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. By submitting or posting such Content on areas of the Service that are accessible by the public or other users, you are representing that you are the owner of such material and/or have all necessary rights, licenses, and authorization to distribute it.”

At first this comma-happy license scared me, but that license section only applies to content that you post to services that are “accessible by the public or other users with whom you consent to share such Content” – so it should not apply to your iCloud private documents/backups. Still kind of weirds me out, though.

What’s the bottom line?

You own your content.

You still have a copyright on your creative works that have been memorialized in a writing, audio, photograph, or video.

But be aware, when you upload your content to a social media, cloud-data, or other service, you are typically giving them a license to use it in some way.

Be aware of what they can do with it, if you can delete the content (or get back the license), and who you are trusting to fulfill their part of the bargain.

And my last tip: if you’ve uploaded content to a site that’s going under, get your stuff the frak off of that site as soon as possible, before the bankruptcy court gets jurisdiction over it.

Any questions?

The post Who Owns Your Content? What You Give Away When You Post Your Stuff Online. appeared first on EPW Small Business Law PC.

This week was a turning point – letting stuff go, and focusing more on what is my work, moving forward. Also, I go on a rant about the b.s. of “passive” revenue and the benefits of leaving money on the table.

The post EveryDay41: A good week, and "passive" revenue is a bunch of crap. appeared first on EPW Small Business Law PC.

Yes, I know, you and your virtual assistant (V.A.) have a contract stating that they are an independent contractor.

They gave you an EIN number. They have a website and a business card.

They even showed you a document saying that they have a d/b/a (“doing business as”) registration.

Sorry, dude, but that V.A. could *still* be your employee.

Because under the law of the United States, what it says in that contract is pretty much irrelevant.

Why does it matter if your Virtual Assistant is actually your employee?

Because if they are an employee, you could be liable for:

• Payroll withholding, FICA (social security & medicare), and federal unemployment tax
• Minimum wage, overtime, and record keeping requirements of FLSA (Fair Labor Standards Act)
• OSHA and other health and safety regulations
• ERISA (retirement benefits)
• Federal Medical Leave Act, worker’s compensation, unemployment insurance liability
• Employee benefit requirements of your jurisdiction (such as medical insurance coverage)
• Contract and tort liability for your employee’s actions with third parties
• Other rules, taxes, and regulations of your local government and/or state

The wild thing is that for some of those, you are *personally* liable – even if you are incorporated. Oy.

I wish I could tell you – “here are three easy steps to make sure your V.A. is an independent contractor” – but the law in this area is squishy. No simple bright-line rules. Sigh.

But before I explain those rules and what you can do about it, let me take a step back to explain why your contract isn’t enough.

Think back to the 1920s and 1930s.

Back then, employers would require people to work in factories for 60 or 80 hours a week, pay them almost nothing, employ young children, bar the doors during work hours (no fire escapes!), and allow horribly unsafe conditions.

People still took those jobs.

Because they were desperate. Because they didn’t have the power to do anything about their situation.

So starting during the Great Depression, laws were passed to require minimum pay, overtime pay, safer working conditions, payroll tax withholding, unemployment insurance, and eventually, non-discriminatory practices and benefit rules.

These are paternalistic laws.

This is not about people having the freedom to work as they choose. This is about the public interest purpose of protecting workers and encouraging the employment of more people.

That’s why you cannot contract around these rules – it would defeat this public interest purpose. If a simple contract would allow anyone to be an independent contractor instead of an employee (and thereby not subject the employer to these laws), every employer would do that.

Alas, so you’re having to deal with the mess of these rules because of the employers who have treated people like crap.

So what is the rule? How do you know if your V.A. is an independent contractor or an employee? 

That’s the hard part. There isn’t one statute, or one court case, that specifies one set of rules. The IRS has a standard, the U.S. Department of Labor has a standard, the EEOC has a standard, various court cases have cited standards, your state has a standard – and the state where your VA is located may have even another standard (different examples: California, New York, and Minnesota).

And in some places, like California, there is a presumption that the worker is an employee – so it is up to you to prove that they are actually a contractor.

The rules themselves are pretty murky, multi-part tests. It’s about the “economic reality” of your situation – in other words, it’s a case by case basis of the daily reality of how you work with this person – not about a contract or what you say you are going to do.

Yep. It’s a bit of a mess.

Here are the most important factors of whether someone is an independent contractor or an employee, usually considered by the various courts and agencies involved:

Do you have the “right to control” the worker?

Here I’m not just talking about whether you have the right to control the output, or the results. Because usually you will have some kind of standard of results for any employee or contractor.

This is about whether you have the right to control *how* the work is done.

Are you setting the hours, giving steps or methods, providing a checklist or script or process for how you want the work done? Do you provide required equipment or software? Do you give them projects, or daily tasks? Is the assistant allowed to hire others (subcontract) to do the work? Do you dictate or even provide which supplies or resources they use?

The more control you have over *how* the work is done, the more likely this person is your employee.

Is the worker in business for themselves?

Do they have a website, business cards, incorporation, a d/b/a? Have they invested in their marketing, administration, training? Are they holding themselves out to do work for the public? Do they have other clients? Watch out for if you are your V.A.’s only client and/or if they are working for you for a majority of their time.

Is this a project-based relationship, or is it permanent and ongoing?

Many V.A.’s work for you indefinitely, even for years. The longer and more open-ended the relationship, the more likely they are an employee.

Is this at-will or is there a penalty for letting the worker go?

Most employment relationships are at-will (you can fire an employee at any time), but for an independent contractor, per the contract, you still have to pay a deposit, the full fee, or a penalty, if you terminate it early. In some jurisdictions like Minnesota, this penalty is very important evidence of a contractor relationship.

Are you supervising the worker? Are they working on-site or remotely?

The more supervision (which really is a part of control), the more likely someone is an employee.

Is this person an integral part of your operation?

This goes to whether this person is replacing what would normally be the role of an employee. Here, many virtual assistants are doing just that – replacing what would normally be the job of an employee receptionist or secretary, providing day-to-day assistance. That’s the whole point of a V.A. – and makes it more likely they are an employee.

Do you train them how to do the job?

Watch out if you’re training your V.A. how to do their job, as opposed to them providing their own training or coming in with already-acquired expertise.

Does the worker have an opportunity to either make a profit or a loss on this job, depending upon their business management skill?

For example, I bill my clients an flat-fee annual retainer. For some clients, I will make a profit because I can get all the work done efficiently. However, for other clients, I may end up losing money, because the work takes me too long or I have to hire it out at high rates. For that and many other reasons, it’s pretty clear that I’m an independent contractor for my legal clients.

If you’re paying someone by the hour, there is less opportunity for profit/loss (and it’s more likely they are an employee), versus someone who charges by the project or via a monthly retainer.

Bottom line:

Be very careful in how you design your relationship with your virtual assistant, to try to make it as hands-off as possible and yet still meet your goals, if you want it to be characterized as an independent contractor relationship.

In your contract, include specifics of how the relationship will work (using the guidelines of the laws that apply to you), and also *abide* by what you are say you are going to do, in how you two work together.

There are no guarantees here, especially considering that the law is evolving and your relationships with your V.A. will likely evolve also.

And, of course, the best bet is to have the contract and the relationship reviewed by an attorney.

But you knew I was going to say that.

The post Is Your Virtual Assistant an Independent Contractor, or an Employee? Status: It’s Complicated. appeared first on EPW Small Business Law PC.

Tonight I left a facebook group that I had founded, administrated, and nurtured for most of this year.

Broken hearted and crushed by the circumstances that forced me to throw an impermeable boundary for protection from people that I cared about.

Protection from further energy depletion and nauseating wounds, so I could continue to be myself for my daughter, for this life’s work, for all of you.

The thing is, I am just not a soldier of conflict.

I don’t understand persistent intentional meanness.

I don’t understand continuing to be offended at every misunderstanding without even trying to understand.

Perhaps I am naive to have faith in humanity, that people can learn to accept themselves and each other, that people can learn to work together in peace for the advantage of all.

Now, don’t get me wrong. I’m not a complete fool.

I know that we need soldiers around to keep the peace, because there are still those who will attack any boundaries, who will attempt to break any serenity.

But tonight I was forced to admit that I’m not a soldier. That is not my job.

So this is my thought for you tonight.

Know who you aren’t.

And know who you are.

I am acceptance.

And acceptance’s job isn’t to fight conflict.

Acceptance’s job is to hold a space for peace.

And sometimes the way she holds a space for peace is to turn and walk out of the room.

Love, Elizabeth

The post This broken heart and knowing what is not my job. appeared first on EPW Small Business Law PC.