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Get the free “No Lame Names” ebook by entering your email address at the right (Middle column, just under the video over there…). It’ll automatically redirect your browser to the PDF or start a download.

Have a great weekend.

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Here’s a little video on the Alchemy of Ideas.  Hopefully this will shed some light on why Intellectual Property law does not care about your idea – only what you’ve DONE with your idea to bring it into the word and share it with the rest of us.

Granted, I still have a lot of improvement to make on the video technical – lighting, sound, visuals, etc.  Stick with me.  I hope to polish up the technical as quickly as I can.

Comments Welcome.

Nor are we talking about helping a bud roll one.

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We’re talking about when at least two people work together on a creative project.

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Unfortunately, “inadvertent” joint authorship happens all the time.

Here’s the analysis:

1.  A work is “jointly authored” automatically upon its creation if:

1) two or more authors contributed material to the work; and

2) each of the authors prepared his or her contribution with the intention that it would be combined with the contributions of the other authors as part of a single unitary work.

2. Intent AT THE TIME THE WORK IS CREATED is the controlling factor.

3. The contributions do NOT have to be equal.

4. IN the ABSENCE of a Collaboration Agreement or agreement otherwise:

• Joint authors have undivided interest in the ENTIRE WORK.  (that means even-Stephen for all the authors, even if they didn’t contribute equally.)
• Each joint author has the right to exploit the copyright, without the other’s consent.
• Each joint author has the right to license the joint work, without the other’s consent.
• Each joint author has the right to transfer their share of the ownership without the other’s consent.
• The ownership interest does NOT revert to the joint author upon one author’s death, it goes with the estate.
• Both authors have a duty to account for profits – each joint author has to pay the other the appropriate share of profits.

So, what this means to you is that before entering into any collaborative creative project, you should create a “Collaboration Agreement” that irons out the details of the project and relationship.

A collaboration agreement should include at least:

1. Description of the project
2. What each person will contribute
3. Ownership %
4. Authorship credit
5. Control of use – decision making

There are a bunch of other things your lawyer will help you with, but the things listed above are the key relationship issues to keep in mind and bring to the meeting with your attorney.

Please understand that I’m not saying “don’t collaborate” because collaborations can be incredibly powerful.  I’m saying get the deal in writing before you begin the work, even if you’re sure everything will be swell.

Things happen.

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I’ll be leading a Webinar with my friend, marketing partner on this project, client, and internet marketing Guru, Joel Comm next Monday, November 9^th at 6:00pm MOUNTAIN time. The Webinar is free, but space is limited. You can sign up HERE.

Again: sign up for the free Webniar Here.  Do it now.  Space will fill up quickly.

The new rules go into effect December 1, 2009.  Yes, in only a few weeks.  So are you ready?

Do you even know where to begin?

No?

I didn’t think so.

Well, don’t feel like the Lone Ranger. Most people don’t – and it’s not your fault because the new guidelines were just released a few weeks ago and they are subject to some different interpretations.

Joel and I will be discussing many of the implications of the new rules and introducing the project, product, and system that I’ve been working on almost non-stop ever since the new rules came out. Really, I’ve been dreaming about this stuff. Just ask my wife and friends – they’re sick of listening to me talk about this. Of course as a co-author of this product I’m hugely invested and probably a bit biased, but I’m convinced this is really going to help a lot of people quickly figure out what they need to do.

The product is a guide to the new rules we’re calling the FTC Toolkit. It is a thorough guide to the new rules including analysis, self-assessment checklists, sample disclosures, sample agreements, and sample policies. Incredible stuff here because I’ve not been working on this alone. I’ve assembled a team of lawyers, marketers, and communications professionals with over 75 years of combined experience in the relative material to develop the Toolkit.

We haven’t stopped there, because the FTC isn’t stopping there. These rules are going to evolve as the FTC starts enforcing the rules against people who don’t comply. So, people who purchase the FTC Toolkit will be able to join the Site Compliant(tm) program and receive ongoing updates to the Toolkit content and other timely information as the FTC begins enforcement.

And, we didn’t stop there. Members of the Site Compliant(tm) program will also be able to apply for and be able to use what we believe is the Internet’s first compliance “Trust Seal” that they will be able to proudly display on their site as a signal to consumers and to the FTC that they, as a member of the program, are taking a proactive and affirmative approach to being and remaining compliant.

This has taken a lot of work by a bunch of people over the last few weeks. If you were going to invest in this content from a lawyer on your own you would be need to budget at least $50,000 in legal fees, because my team has at least that much otherwise-billable time invested in this product.

Join us on the free Webinar to learn more. Again, that’s THIS MONDAY, November 9th at 6:00pm Mountain. Sign up HERE.

Remember to sign up NOW because space on the Webinar is limited.

… Then Vladeck (speaking of David Vladeck, Director of the Federal Trade Commission Bureau of Consumer Protection) turned to the new FTC Endorsement Guides.  Everyone held their breath.

Before I go further it is important to remember that Vladeck comes from a consumer protection background.   He led the Public Citizen Litigation Group for 20+ years.

On the endorsement guides Vladeck’s message was clear:

1. Disclaimers like “results not typical” are useless and will be attacked by FTC.

2. Advertisers who make claims “will be held responsible for their claims.”

3. If your promotion relies only on testimonials “you will have a problem with us.”

Vladeck described this area for the FTC as a “target rich enviornment” in which they intend to pursue violators using all the resources at their disposal.  And when the 1000+ enforcement personnel at the FTC run out, FTC plans to call on the state attorneys’ general.  When the AG’s are too busy, Vladeck says that they will do as the FDA does and publish warning letters on the internet in order to “bully companies into compliance.”

Despite the backpeddling FTC has done in the media recently, Vladeck made it clear that he will enforce Section 5 of the Federal Trade Commission Act and the endorsement guides.  It was as if Vladeck was drawing imaginary targets on foreheads around the room…

I spoke to several attorneys and CEOs at the reception that evening about the regulatory problem the enforcement guides present and everyone agreed that the problem is very serious.  One observed, candidly, that the problem was that “you never know what marketing is doing until it is too late.”

After all, lawyers and regulatory execs are considered “sales killers.”  We are never consulted by marketing in advance of a promotion for fear we will put the kibosh on the latest profitable social media marketing strategy.

So what’s next from the FTC?  Who knows.  After all, it’s a “target rich environment.”

For the full article. Visit Joel’s blog HERE.

Joel and I are working together on a new product and program to help companies of all sizes and in all niches become and remain compliant with the new rules. I should have more news about that to share with you on Thursday or Friday of this week.  If you are interested in helping promote this product, email me.

Here are the links:

Trademark & Branding

Copyright

Feel free to forward these links to any of your friends who might need the information.

If you would like me to do a similar session tailored to your group – give me a call at 970-493-1070 or drop me an email and we’ll work something out.

My goal here is plant a few seeds in the back of your mind about social media content you create. I won’t be able to cover every possible way you can get yourself in trouble, but I’ll hit the highlights.

Of course, each situation is unique to you, your state, the people on the other side of any discussion, and a bunch of other factors, so don’t simply take my word for it. If you find yourself in trouble, consult your own attorney — everybody should own one.

The most probable ways you can find yourself in hot water are:

Defamation: damaging someone’s reputation.

Privacy: disclosing someone else’s secrets.

Interference with Business Relations.

Negligence: being a dork and harming someone.

Contract: ending up in an enforceable agreement.

Trademark: confusing consumers about a brand.

Copyright: sharing something that’s not yours.

Defamation

In today’s world, we lump harms to someone’s reputation arising from a written statement (libel) or from a spoken statement (slander) under the common term “defamation.” Here’s what we look for:

1.              Defamatory language on the part of the person being accused, which could be you or someone else online. Note that the language does not have to be direct, it can also be innuendo, satire, etc.

2.              That language must be “of or concerning” the person claiming to be harmed by the language.

3.              The language must be “published,” which is just assumed in the context of our discussion of a troubling tweet or other social media content.

4.              The language has to damage the reputation of the person making the complaint. Note that even a statement of opinion might be trouble, for instance: “I don’t think Sylvia can be trusted with the key to the store” would be actionable because you’re implying a personal knowledge and accusation of dishonesty that would harm Sylvia’s reputation.

If the language refers to a “public figure” or involves a “matter of public concern,” then we have to also prove:

1.              Falsity of the language; and

2.              Fault on the part of the accused person.

Remember that you can get in trouble with statements that target an individual, company, association, or anyone that has a reputation to be damaged. And, it could cost you big-time, especially if you are referring to a few special cases such as a statement that goes to a business or professional reputation, says someone has a “loathsome disease,” has committed a “crime involving moral turpitude,” or imputes “unchaste behavior to a woman.”

Even a truthful statement can get you into trouble if sharing that bit of truth damages someone’s reputation.

Privacy

This one is touchy. If you disclose something that a “reasonable person” would not want disclosed, then you could wind up in trouble, even if the disclosures are truthful. An example would be disclosing the real name and location of someone in witness protection. Another example would be attributing to someone views he doesn’t hold, or saying someone did something they did not do. Exposing someone’s extramarital activities inadvertently by posting a photo showing person X with date Y when the date is not X’s spouse could land you in hot water.

Note that this right is personal. Companies cannot claim a right of privacy, although they have other avenues to pursue similar situations, such as “Intentional Misrepresentation,” otherwise known as “fraud” or “deceit.”

Interference with a Business Relationship

This one is pretty well explained by the title. To get in trouble here you have to know about a valid contractual relationship, or a valid expectation that someone will be entering a valid relationship, then you have to intentionally mess it up. Enough said.

Negligence

Think about a car accident. Now think about a car accident online and you’ll be heading down the road to understanding this potential problem.

When you drive a car, you have a duty to conform to a specific standard of conduct, which was breached in the accident and caused actual damage to someone. The same can happen online. Do you have some duty of care?

A good example would be an attorney or doctor who has a duty to keep client information confidential. You also signed, but probably didn’t read, a “terms of use” agreement for each social media site when you signed up. Those agreements generally define your duty relative to the content you post on the site.

Did you breach that duty? And, did your breach cause damage? All four elements have to be in place to get you in trouble for negligence.

Contract

All it takes to fall into a contract is an offer, an acceptance, and a promise to pay, known as “consideration.” That’s it.

You might think you’re joking around during an online exchange, but just a single post and response could bind you into some contractual action. Watch out that you don’t agree to something you really don’t want just because you don’t think social media exchanges count as contractual language.

Heck, you could also get in trouble here by making an offer for business services that are seen as an open offer for everyone. The possibilities are endless.

Trademark

Trademark law is all about protecting someone’s investment in their brand — personal or business. It’s about consumer confusion.

The test for trademark infringement is if an appreciable number of consumers would be confused about the source of some goods or services, thinking those goods or services come from, are affiliated with, or endorsed or sponsored by the person making the complaint. The affiliation and endorsement factors will get you in trouble.

So, don’t use someone else’s brand name for your online name, and avoid inferring that you are associated with people or brands with which you really have no affiliation or sponsorship.

Copyright

I admit it will be hard to get yourself into a copyright infringement situation from a single 140-character tweet, but you might be tempted to post a few tweets in a row to share a short poem or song lyrics. Don’t do that.

It’s easier to get in trouble on Facebook, LinkedIn, or MySpace because there you might be tempted to post a photo or piece of music that will land you squarely in a copyright infringement situation. Just because it’s online and easily copied, doesn’t mean you have the right to make and post other people’s creative work. You don’t.

Trust your instincts — if you had worked hard to create something, would you want it posted by someone else? Probably not.

I’m sure there is some form of legal trouble that you could get yourself into that goes beyond this list. But I’m going to assume that you’re not a criminal mastermind and that you’re not going to use your online accounts to harass people or solicit young boys or girls to meet you at the mall for a date.

Use your account only for good, to make friends and help people. It’s a jungle out there, so be careful and play nice.

I’m calling this a “Creative Manifesto”

1. The purpose of life is to create – or at least co-create with God and our fellow humans.

2. In order to fulfill this purpose we need:

• Some freedom from worry about the hand-to-mouth burdons of living – some material weath. We can’t be expected to be creative and fulfill our full potential when we’re starving or homeless.
• Time to be creative (which is maybe part of the above discussion).
• Confidence and the Self-esteem/image to share our creations in the face of potential criticism.
• Knowledge (personal or through a team) to enable us to have the freedom and prosperity that provides that time and confidence to create and share our creations.

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This is what many lawyers do – provide the space, time, and confidence for people to find and fulfill their creative potential.

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Check out the Art Biz Blog

My friend Alyson Stanfield (the best business coach for artists), is having a great discussion on her blog about using other people’s photos as inspiration/reference for their artwork.

If you’re an artist, you should definitely know about Alyson and buy her book.