What You Need To Know About IP Law To Grow Your Biz And Not Get Sued with Autumn Witt Boyd

“We look at legal protections proportionally, both to the size of your business and to the risk” – Autumn Witt Boyd.


In this episode of The Widest Net Podcast, Pam is joined by Autumn Witt Boyd, a legal powerhouse who shifted from battling copyright and business issues in courtrooms to founding The AWB Firm in 2015, whose mission is to empower entrepreneurs to build, protect, and scale their businesses without the legal headache. 

With her extensive legal expertise, Autumn simplifies complex legal jargon and provides actionable advice to help entrepreneurs navigate the intricacies of copyrights, trademarks, and licensing. Autumn’s straightforward approach in this episode and wealth of knowledge make legal protection accessible, ensuring that entrepreneurs can safeguard their businesses with confidence.

Here are the Show Notes.

Welcome to another episode of The Widest Net Podcast. I’m your host, Pamela Slim, and I am joined today by my guest, Autumn Witt Boyd. After spending the first ten years of her career battling over copyrights and business issues in courtrooms across the United States, Autumn left big law behind to start The AWB Firm in 2015 so she could spend her days helping entrepreneurs build, protect, and scale their businesses the right way instead of fighting with other lawyers. Autumn, welcome to the podcast. Thank you so much for having me.        


I’m excited to chat with you. Well, first, I just want to say thank you for being such a good peanut butter and jelly partner to me. So you. I learned that phrase from you, and I love it. I’ve sent a lot of clients your way for good reason, because you take such good care of them.        


And that’s one quality of PB and J partners that I talk about a lot with my clients, that when you are sending your beloved clients to, to others outside your field of expertise, it’s really important to know that they’re going to be taken care of in the same way that you care about them. And that’s really consistently been the case. So I just want to tell you how much I appreciate that. Well, they have all been just a delight to work with, so thank you for keeping us in mind when they need help. I love it.        


So I want to set the ground, I think at first, as we start to just go into ways that business owners can understand, in particular, legal issues around IP, things like copyright, trademark licensing, those kinds of things, as well as just some foundational legal practices that keep us from getting sued or going to jail, and also that keep us from growing our business when things really go well. So I’m wondering if you could just define a few of the terms for people who may not understand, like what’s the difference between copyright, trademark, and licensing, for example? Sure. Well, first, I will give my standard disclaimer, which is, I am a lawyer. I am not your lawyer, if you’re listening.        


So this is all information, not advice. And I am located in Tennessee. This is all based on US intellectual property laws, which are mostly the same across the nation. So I’ll kind of be talking at a high level. So, copyright protects what we think of as creative works, so if you’ve written a book, you take in a photo, you create music or a painting.        


Those are kind of the core things that we think of when we think about copyright protection, but it also extends to things you might not think about. Like if you’ve written an online course, it might cover your videos or the different pieces of a curriculum, if you have worksheets or guides or templates that you’re providing to your students. So kind of all the parts and pieces, if you’re listening and you may teach something, all of the parts and pieces of that are likely protected under copyright law as long as you created them. They’re your own work or a team member’s work, and they’re original. That’s the requirement under copyright law.        


Trademark is going to protect what we think of as your brand. So the name of the business could be the name of a podcast, whatever. When someone’s looking for you, the things that they use to make sure they’re finding you and not a competitor. So some of the classic brands, you know, Nike, Coca Cola, McDonald’s, when we’re thinking more of like the education and consulting, it is more things like the name of your course. If you have a core concept that you use a lot that’s become really associated with your brand, that might be protected by trademark.        


And if you run a certification program, it could be the name of that certification. There’s different kinds of trademarks for those programs. When we talk about licensing, a license is just a fancy word for giving someone permission to use your intellectual property. So that could be a copyright and or a trademark, and it could be even other things like permission to use a badge on your website to identify that you are associated with a brand that could be a part of a license. That’s really helpful.        


So I know you may not think it should be as an attorney, but investing for a lot of business owners in legal protection is often seen as discretionary spending. When you’re trying to figure out, oh my gosh, do I get a va, do I pay my taxes? Do I pay myself? Do I invest in a trademark? And so what is your approach, I guess, to helping people sort through and think about in the examples maybe that we gave what is really essential protection that you will be truly at risk if you don’t invest in, and then what maybe can be things that you can add once things are rolling a little bit more?        


Yeah, well, I love the way you phrase that because the way we here at my law firm, there’s several lawyers, but we all take the same approach. We look at it proportionally, both to the size of your business or the stage of business and to the risk. So what are the chances that something could go terribly wrong? And if it does, what could be that outcome? So when you are newer in business, you’re probably just testing things out.        


You may be offering different services or different types of consulting or programs. You may be testing lots of things. The nice thing about that is when your revenues are fairly low, you don’t have a lot of risk if something goes wrong and you are typically testing out things that you might not keep doing. And so I usually recommend in those early stages you’re doing a lot of iterating. Not to worry too much about those registrations.        


You will get some kind of default protections under both copyright and trademark law, just automatic protections. They’re not as strong as if you actually register the works both on the copyright and trademark side. But you do have some protection just by using either by using a brand in your business or on the copyright side just by creating it, getting it out of your head and onto paper or a digital document. Now that changes as your business grows, as maybe you add a team, maybe you were side hustling in the beginning and now it’s your full time income that you and your family are depending on. So again, your reliance on the business changes, your potential risk changes.        


If something goes wrong, it could have much bigger implications. So I typically just kind of back of the napkin. Don’t worry a lot about these kinds of IP protections until we’re at maybe two or 300,000 even 500,000 annual revenue. That’s again just back of the napkin because usually when a business owner gets to that point they’re kind of cooking with gas. They’ve probably got one or two things that they are doing on repeat.        


They’ve figured out what works, what their audience likes, maybe they have a signature program or process. And so then we start to look at what are the key elements of the business, what’s making you money? And I typically want to protect those things first. Even $100 million business does not have unlimited legal funds, so we’re always prioritizing and so that’s how I tend to look at those things. One thing I know is confusing for a lot of my author clients is around copyright of books that are traditionally published or even with a hybrid publisher like page two or ideapress.        


What’s the deal about that? What do you own? What do you not own? What could you use? What can’t you use?        


Yeah, so under US copyright law, the default rule is that if you. If I write a book, I am the author. Under an author is a defined term in our copyright law, I am the author. I’m the owner, the initial owner of all the copyrights in that book. The trick is you can change that with a contract.        


So if you have a traditional publishing deal, that contract is going to govern who owns what. Now, we’ve reviewed a lot of book deals for our clients. Typically what we have seen. Now, this may change, trends change in the publishing industry, but typically, the author is going to retain the copyright. So they will own the copyright, but they are usually giving the publisher basically exclusive rights to print copies, make digital things from it, often even exploit other rights, like merchandising or tv rights, movie rights, all of those kinds of ancillary things.        


So you retain ownership, but you can’t do much with it. If that makes sense. It does. And I think especially a use for a lot of authors is doing something like creating an online course, or I know I’ve done a retreat based on my last book, the widest net. So is it different for every different contract?        


You just have to look specifically. Can there be publishing companies that say that you cannot create an online course based on the material in the book that they publish? Yes. This is an area we’re seeing evolving, I would say, even over the last five years, as we’ve been working on book deals, because online courses have become so much of a bigger deal since the pandemic. So, of course, the publishers are going to try and grab all the rights that they can if they see an opportunity to monetize.        


What I have seen, we’re recording this in April of 2024. What I have seen to date, at least with most of my clients who are in the education space, is that the traditional publishers don’t want to make online courses, but what they do maybe want to do is, like a workbook or a journal or something, you know, using prompts from. We’re talking about nonfiction, and so we will sometimes try and negotiate around that. I will tell you, I have been somewhat frustrated by some of the agents in traditional publishing. The agent is really driving the negotiation, not the lawyer.        


So we usually come in and just give it a last look. And that is always one thing that I’m looking for, is making sure we have carved out, especially if they had an existing online course or curriculum, making sure that they can keep doing what they’re doing to make the real money, because the book deal is not usually the real money. So we typically will want a really strong carve out. And sometimes the publishers fight about that a little bit and say, well, we’re not going to do that, just trust us. And as a lawyer, I always want it in writing so that they had some back and forth.        


But then I had a client that we, I mean, we went on for weeks and weeks negotiating this exact point, and we finally got it. What made everyone kind of happy. And then she got ready to do the book launch and she wanted to do, you know, a mini course and an ebook and all of these things that you do to promote. And we had to go back to the contract and there was a little bit of an argument about what was originally intended. And I didn’t want to say, like, I told you so.        


So it is something, especially if you are working with a hybrid publisher. So you’re more, you may have more or less flexibility, but that you definitely want to read the contract carefully. If you do have any negotiating power, see if you can get that carve out, because that is really important. I think it’s really helpful because I think talking to publishers, I think you’re right that their main business is books. They would rather stay in that business.        


There are some interesting new imprints that are, as you said, looking into other areas to help authors and on one hand, make it easy to have other things that they can sell, but also to make more money for the publishers, you know, given what’s happening with books. But I will say overall, and this is, this is me, I know some people might have an eye to detail, but I, my eyes cross at sentence number two of any contract. And so my long time friend Kyle Durand, who’s been my tax attorney and always eyes things over time, you know, is like, do not sign anything before. Yes. Before I get a chance to look at it, because we can just have that behavior.        


I think that actually, interestingly, is shaped by our interfacing with so many apps and software where you’re like, yeah, yeah, yes. Move, swipe, swipe, swipe, click the box and sign it. And that is really important to pay attention to those details. Yes. Because it can make a significant impact on the living.        


Somebody can make, you know, from the courses related to a book. Okay, that’s really, that’s really helpful. And again, it’s the point taken to involve an IP attorney maybe early on in conversation, even with an agent, to really be shaping the overall vision of what it is that that author wants to do. Yeah, I think that’s helpful. And also to let the agent know kind of from the outset, like, this is going to be something I care about because from what I’ve seen, the agents kind of have their standard language.        


They usually like to negotiate these certain things that they care about. And so it’s kind of asking them to do something maybe outside their wheelhouse, unless they’ve worked with a lot of clients who are authors who also sell courses and other things. So just kind of making it clear upfront that that’s a priority. That’s really helpful. So, you know, on the certification side of the house in our agency that we try to help them think through when we’re doing the design, all the different use cases often level of risk that they’re willing to take, because what we find is that people have very different points of view about how they want to be really overseeing their IP.        


Some people wanna have totally tight control and be searching for it and sending out cease and desist. Other people have a little bit of a lighter way where they might have more trust. They might not want to be following up or investing so much in legal fees to be chasing after their IP. But I find overall that we just try to look at who’s the audience to get as specific as possible about the way in which they’re designing it so that their certified folks can be using the materials. And especially when you might look at something like, let’s say a company that has a train the trainer program where they have access to train others in the method and then share the license materials, you have to be kind of thoughtful about your vision of that because unfortunately, really big companies can sometimes be the worst abusers of IP.        


They might just share things willingly. Everybody kind of looks the other way. What are some of the things that you first ask your certification clients when they come to you in order to have the information you need to draw up a licensing agreement. Yeah, we always start, and I love to start early, but sometimes we don’t get involved this early. But I always want to make sure that the IP is registered.        


So, you know, we talked about maybe it’s not so important earlier in your business, when you get to the point of your business where you are allowing other people to use your IP, you’re stamping them with your stamp of approval. It’s really important that, that IP is locked down. Um, because as you said, it is more of a risk if one of your, um, you know, licensees, one of your certified students maybe misbehaves, doesn’t follow your rules for whatever reason, you want to cut off their license, their certification, you know, they have to stop using your materials. Ideally, you want to have a way to enforce that if they don’t do that willingly. So for copyright law, you have to have it registered to be able to file a lawsuit.        


You have, you have automatic rights, but you can’t do anything with them until it’s registered with the copyright office. So we usually want to register all the materials that are involved in a certification and then also the trademark we want to have registered, because again, you don’t have to have a registered trademark, but it makes it a lot easier to enforce if it is registered. So again, if someone won’t take that badge off their website or they keep holding themselves out, as I’m XYZ certified coach and you really want them to stop, it gives you a lot more leverage when you are trying to enforce your rights. So that’s where I always start. The other thing that I will look at is to make sure that we have really clear ownership of every, all the parts and pieces of the program.        


Because often, especially if this is your life’s work, you know, maybe you’ve developed it over five or ten years, you’ve had contractors come and go, or you’ve had team members, employees. And under our laws, the work that is contributed by those two people, by contractors and employees, it’s treated differently under copyright law. So the business will automatically own anything that is created by an employee, as long as it’s part of their regular job duties. You don’t have to put anything in writing. It’s just automatic.        


It’s called work for hire. A lot of businesses will go the extra step and have the employee sign an agreement, which is great. I love to see it in writing. But if you hire an independent contractor, the default rule is the opposite. They own the rights and everything.        


Even though you’re telling them what to do, you’re giving them background and materials and, you know, asking them to create to your specifications. And so before we are giving other people permission to use our content, we want to make sure that we have clear ownership rights to that, because the last thing you want is some contractor coming out of the woodwork and saying, hey, I own that. And I never wanted it to be used in a certification program. I just thought it was going to be a social media post. So we want to make sure that’s all documented.        


And then the last thing is just to make sure that whatever certification documents, usually it’s a certification agreement that covers kind of the training piece and then a license that covers giving them permission to use your ip, we want to make sure that that really clearly defines what’s included. How are they allowed to use it and how are they not? So if there’s any things you are absolutely not okay with them doing with your iPad that it’s very clearly spelled out, that’s really helpful. Is there a, would there be a step for contractors who are coming in to do work where you could proactively have an agreement with them that just designates that work that they’re doing, maybe toward creating content for you that you might use other ways that, like there’s a blanket permission or does it, do you have to have it all created and then specifically ask permission as you go to register write that material?        


That’s a great point. No, it’s absolutely best practice to do it on the front end and you can make it forward looking so it can cover things that are not yet created, but will be created as they work with you. Yeah, it’s such a difficult area. It was one of the areas, actually, one of the next questions to dive into that. I think it’s related to this specifically for certifications, but other things I know that a lot of folks can get into the equivalent of a situationship with partnerships.        


I used to call it, let’s put on a show where you might meet somebody at a conference and you get excited about doing something. Before you know it, you’re doing a webinar together or writing an ebook or even a book without having all of the right documentation in terms of the ownership of that IP. And it’s challenging, again, no, no judgment, because I know I’ve been there too, being a highly relational person. So what are the kinds of things that we should get in place, even with long time trusted, good friends and colleagues, before we actually start to create anything together? I mean, I’m a lawyer, so I love to get it in writing, but I know in reality, you know, you’re vibing with someone and you’re in your creative moment, you are not going to be thinking about a contract.        


So again, thinking about it proportionally, if this is just an idea, a webinar, you know, something that you are not monetizing yet, that you are just kind of starting to come up with ideas together, I would not be super concerned there. I would say once it starts to gel, once it’s clear, like, oh, we’ve got something going here. Then again, you don’t even necessarily have to work with a lawyer. But I would love to see could be as simple as a Google Doc that you print and sign that just has bullet points, you know, covering the very basics like who owns what, if, you know, if we decide to split. Because I know we hate to think about it this way, but I always think about the divorce before we’re getting business married.        


You know, if somebody either gets, gosh, hit by a bus or wins the lottery, sometimes we call that the lottery bus here at our firm. Could be good or bad and decides they want to part ways, something’s got to happen to that thing that you created. So is it possible to. To piece apart, you know, each of your contributions? Sometimes yes, sometimes no.        


Um, but just to think about that, you know, would, uh. Can one side buy the other out? Um, that can look like a lot of different things, but I think, um, when you start monetizing, it’s important to at least think about that. And it. That may not be how it plays out in reality, but at least you have kind of.        


I think it makes you both. Makes both partners or collaborators take it a little more seriously, which is good. And then if, you know, once you start really generating some significant revenue, which I would even say, you know, maybe $50 or $100,000 from a collaboration, if you have significant other businesses, it’s time to go to a lawyer and say, okay, is this an agreement between us personally? Is this an agreement between our businesses? Are we forming a new business and just kind of hash that out?        


And it doesn’t have. Again, it doesn’t have to be super complicated, but just to have an outsider, you know, maybe help you play out some scenarios, this is upside. This is a downside, because lawyers look at the downside mostly, and I know that is not anyone else’s kind of the way that they start looking at things. So I think it’s helpful to have that perspective as you’re starting to get moving. Well, and it thank goodness, because it is often the part that we don’t think about, but it probably causes the most heartburn.        


And I know it can end up impacting relationships and friendships when you don’t have a really clear way to unwind it. That’s one of the other things my longtime friend Kyle and lawyer would say is in order to preserve friendships. Like, when you have things really clear, you can very clearly spell out in the case that anyone for any reason, would be backing out. Here’s the exact path. And it just is interesting seeing at this intersection, for a lot of people, between the creative process, maybe their affective characteristics of how it is that they’re used to working with people, but also just an experience.        


If you’ve ever had a negative experience where things really started out really well and then ended up not going well is often where it can be difficult. Or again, yes. Even if, for whatever reason, somebody decides they want to go a different direction. I know, you know, my team and I have just talked about that a lot. We just had a good conversation as we were doing longer term planning, of making sure we’re always looking at it through the lens of equity and contribution and looking at what everybody wants.        


Some people don’t want to necessarily have all the responsibility. Right, right. All the ownership of things, but they want credit and a good, you know, financial peace even after they leave. So a good attorney could give some of the options. Is that.        


Yes. Yeah, that’s always confusing to me. I’m like, do you have a bunch of options you could lay out for people? Because it’s often easier to say, I want a, b, or c and just choose one, rather than them saying, well, what do you want? And that’s where I found myself.        


And everybody else is like, well, I don’t know. If I knew, I wouldn’t be talking to you. Isn’t that your job? Yeah. And, you know, the nice thing about a lot of this when it comes to these sorts of relationships and arrangements is there is a lot of flexibility legally.        


There aren’t a lot of laws or rules around this. But then, to your point, that can make it more difficult when it’s like, well, if I could do anything, how do I know what I want to do? So, yes, we definitely, and I think the longer, you know, for something like this, you want to work with an attorney who’s been doing it for a minute because they’ll have experiences they can draw on. I mean, as you were talking, I was thinking of five or six situations recently where we’ve helped partner is either amicably or not so amicably split up. Whether that’s because one, whether that’s a death, whether that’s someone has another opportunity they want to pursue, or we just had a breakdown and one side isn’t pulling their load.        


Yeah, that’s really helpful. So as much as possible, create some kind of an agreement and have it in place. I think it’s always really helpful to have a lawyer look at it, because sooner or later, a lawyer will get involved, and I think it can create a peace of mind. It brings me to another thought, and this is a practice that I have learned to have out of respect to lawyers and the profession that you have, but also from an IP perspective, and also from a practice, as a lot of people might just say, hey, do you have an example of a licensing agreement that I could use? And my answer usually is, first of all, I always refer my clients to IP attorneys because, because I am not one and I advise maybe what could be included in it. But then it’s completed by the attorney and it’s not a wise practice to be using somebody else’s because there could be things that are missed and it’s not very respectful to the attorney who created it.        


Now you throw AI in the mix, and I know that it gets even more complicated. What is your answer to that? I know you have a really cool service offering, for example, on your website where you have a reasonably priced, vetted, standard agreements as a template that people can use. But what do you tell people who are like, yeah, I just borrowed my friend’s sister’s copy that they used, or I just googled something and grabbed it off the Internet. I always cringe a little bit.        


My first answer is usually, I’m glad you know something is better than nothing. So if the choice is I’m going to borrow my sister’s friends off the Internet contract, that’s better than nothing. But as you said, it is probably either going to have stuff in there that doesn’t make sense for, for you, or it will be missing things because that person made some choices or their lawyer made some choices when they were drafting. So we do sell templates, but what I have found is.        

What I have found is for certifications and licensing is that templates are really not a great idea. And I love templates, but the relationship and the type of work that’s being licensed and all of those different parts and pieces are highly individual.        


I have found, and now a good lawyer can research. I mean, I will tell you, no lawyer writes a contract from scratch, but if we’ve got a form internally that we use kind of as a starting point, we probably looked at 15 other contracts to pull parts and pieces. Oh, this makes sense here. Oh, I don’t like that. Let me get this from over here to get our starting point.        


And then a client might throw a curveball at us, you know, oh well, I don’t want them to do XYZ. So then we’ll maybe research or look at how we can add that or take away. Like you said, some people are more want a tighter grip on their ip and their program than others. And so, you know, we had a client recently, I think our standard license is 15 to 20 pages and they said they wanted it to be five. So that is going to require a lot of edits and a lot of condensing to figure out what is the, you know, the absolutely key parts of that.        


But we know from experience, you know, where do we typically see the most problems? Like if I’ve got to cut some of this, what is the lesser important of that? And anytime you are borrowing something off the Internet, it’s a little bit worrisome. What is the experience that you’re having with AI now? Is it really impacting your industry?        


How are you finding that people are using it or are you excited by it? Are you a little scared? If you’re anything like the rest of us in service businesses? Yeah. I am not seeing it directly impact our practice yet.        


We are starting to get questions from our clients. We had an issue we researched recently about is there a way to stop the AI from scraping your website to learn on? So we were looking into that issue. I am not seeing many of our clients and I think this is partly because they trust us and they’re wonderful and we focus on relationships as you often talk about. And so I don’t think that they are tempted to use AI instead of a lawyer.        


I think that there’s incredible opportunity and I can’t predict what will happen. We’re using it for marketing. I think it’s great for marketing. And I do think some of the research tools that we use are starting to incorporate it kind of behind the scenes to do some predictive searching to hopefully give better results. But I haven’t seen a direct impact yet.        


What about you? Yeah, I mean, I’m seeing a lot of impact just with tools that people can use now of taking IP, for example, taking the information from a book and just automatically creating a course and things like that. But it’s like you said, there’s often discernment, there’s a bigger picture of how it is that you’re making choice and why for content. But I will say it can be a very useful tool. One thing that I learned recently that I appreciated from Lucas Petty, who’s at AI Daddy.        


I met him speaking at a conference here last week. He’s actually here in Arizona, is. I wasn’t, I was always would never put any client information in, just the regular ChatGPT because of not wanting to feed the machine, because of the protecting that information. But I did learn you can have that private GPS, you kind of put. A wall around it.        


That’s right. To put a wall around it because it is such a useful, like a search tool on steroids in order to maybe go through a great amount of information and to begin to pull certain threads or to get ideas, I find it can be really useful. I’m creating and experimenting with my own ip, like putting my own courses and books. I have a Mount Everest of stuff I didn’t even remember creating. I’m like, oh my gosh, I created a six month class that has 37 different modules.        


I totally forgot in 2010 or something. That’s usually pretty relevant. So I’m excited in the way I think that it can help us actually leverage our own IP or to be more strategic of putting our energy in the places that are going to be the most value for clients. Because I do care about great design. There are cool ways that you can be using, having some specific uses, given different kinds of learners, to be creative of creating a dynamic learning experience.        


And I think the biggest challenge often for most people is actually selling it, building long term relationships, especially as people are selling certifications programs. B2B. There’s usually a lot of things that are involved beyond only the design, just the content. Yes. So I’ve had my moments of waking up at three, like, oh my gosh, we’re all going to be completely replaced.        


But like you, I find over time that having a context, having a big picture of understanding that is still necessary when using a lot of tools. I just did a team off site with Darren and Josiah and we did say and look at each other very clearly, we need to be practicing every day, very aware of keeping up to date. Yeah. Because I think any service business who does not is definitely putting yourself at risk. That said, I know I’ve gotten feedback from some folks in my own audience.        


There are people who, for philosophical ethical considerations, don’t want anything to do with it, which I respect and totally understand. So somebody could make a choice in their business to decide not to use any of it at all. But I find for most people that I work with, it’s something that plays a part. So just using it responsibly. Sure.        


There is one question, like an agreement with having a contract with a client. Would that be an example of something to say? Are people developing now AI policies saying, for example, that we only used a closed private GPT? Yep, absolutely. Yeah.        


There’s privacy concerns that we’re starting to see for sure, and then just the copyright ability of AI. So if you use AI to create a course that is a machine created work. So that is not considered, at least right now. Now there’s like a working group with the copyright Office working on this right now that is not considered a copyrightable work because it has to have human input. So if you’re using, even if you’re training it on your own materials right now, if you’re creating an ebook or a course or whatever, and you’re just using what AI spits out, which I don’t think many people are doing, but that’s not copyrightable.        


So to take that to the logical conclusion, if you want to certify people and use that as part of your certification, that’s not something that you can protect. So that is one way we are advising our clients just to be careful. You can certainly use it as a starting point. We talk about it to avoid that, the crappy first draft, the blank page staring at you. But then, you know, I heard, I listened to Ezra Klein’s podcast and I heard him talk.        


He had an AI episode and he was talking about how it is turning people into editors more than writers. And I thought that was really interesting because that’s a totally different skill set to take what, you know, the AI spits out and make it better rather than creating something from whole cloth. That’s right. So knowing that the law is emerging, but in the case where somebody might say, hey, what are three different ways to the instructions for this exercise that you could take that as a starting place? If you then fleshed it out, added changes, then it would be copyrightable because you’re not, as you said, just directly doing a straight AI play.        


Yeah, but I guarantee we will see court cases where someone is sued for copyright infringement and their defense is, well, it was created by AI, so I get off scot free. Like I just, it’s going to be an interesting time while this all plays out. That is so true. Well, as a final question, and this is one again, a lot of our certification clients find is the line between franchising and licensing, especially when you have a certification. What is that difference?        


I’ve heard things like the modern myths, for example, let’s say you have a certification program on how to be an IP attorney. We know that would never happen. But for purpose of examples, and then let’s see, I included with it an entire toolkit of how it is that you could market your IP business. And then maybe I would say, I’m also an IP attorney and I’m going to give you leads. Like, does that go more into franchise territory?        


What are the things we need to be aware of? In general, I’ve heard people saying stay away, if you can, from a franchise because it’s more expensive and a bigger deal to put together. But how do you sort through that with clients? Well, first of all, I don’t know how you saw inside my brain, Pam, I’m just kidding. I have no interest in certifying other attorneys.        


So I actually, we’ve been dealing with this a lot with our clients lately. You are absolutely correct. Operating a franchise in the United States is layers upon layers of regulation. So there’s federal regulations and every state has its own regulations because you’re offering a business opportunity to someone else. So it is highly regulated, it is very expensive to comply with those laws.        


So there’s nothing wrong with it. You just, if you want to run a franchise, know that there’s going to be a lot of compliance costs. So most people who are doing certifications want to stay away from that because they don’t want to have to hire all these lawyers and fill out all these forms. So a franchise is defined usually by three elements. So we’ve got, you’ve got a grant of rights to use a trademark.        


Typically trademark is kind of the key, a franchise. So to use someone else’s trademark to sell or distribute goods or services. The second one is that the franchisor, the business, gives significant assistance or control over the licensees business. And that is really the element that we have found is kind of where the rubber meets the road of certification or license versus franchise. And then the third element is that there has to be a payment of some fee.        


So typically we can’t avoid number one. And number three, any kind of certification is going to be a grant of rights and is going almost always going to require a fee. So we usually focus on that second element. And it’s a bit of a gray area of how much control takes you from certification into franchise. But we look at things, I mean, think about like a McDonald’s franchise.        


You know, they control everything. They are in charge of the uniforms, what the stores look like, where the stores can be located. They have extensive operating manuals. The franchisee really does not have a lot of flexibility. So the more that you’re on that side with a lot of control and offering a lot of resources, the McDonald’s corporate is providing those manuals.        


They’re not expecting the franchisees to come up with that. So the more control and the more resources you offer, that is going to put you further into the franchise territory. And this is an area, I hate to say this. But if you are working on a certification program and you do want to have a high level of control or you do want to have, you know, a really strict compliance program, you only want people to teach it your way. They can’t change it at all.        


You know, I would recommend consulting with an attorney who’s familiar with that line because it is going to be very case by case. There is not a black and white, you know, if you do this, you’re fine. If you do that, you’re not. To make sure you want to be on the right size. They have what’s called an accidental franchise, which is you didn’t think you were a franchise, but now you are being treated as one.        


And there’s all kinds of fines and penalties that you do not want to have to be dealing with. That’s really helpful because I think it can come up sometimes where you might have an annual, like, renewal for a license. Is that a very typical part of a certification where people might have to pay annual fees to maintain it? So, yes, that’s very normal. That’s normal when done well.        


So does it depend on, like, the kinds of activities that somebody might have access to in their renewal that might put it into that accidental franchise arena? Correct? Yeah. I mean, you might think of even things like, does the business grant certain territories? Like, do you have an exclusive territory?        


That is one of the factors that might come into play, or, you know, do you have a really detailed, either operations manual or know, some sort of guidance that you have to follow, like, to the letter? Another thing is like, design requirements, like, you can only use the logo in this way, or like, your marketing has to look this way or everything has to be approved before it can be put out. You know, all of those, just the more involvement there is between kind of the parent and the franchisee or the licensor and the licensee, we start to get more into that franchise territory. That’s really helpful. And I think it’s just good overall to, you know, there’s nothing wrong with wanting to be people, to be a good steward of the materials.        


That’s essentially what we say in layman’s terms, what you’re doing when you’re creating a certification program. But to really be thoughtful about it, because as you said, it can end up. It’s actually, it’s very hard to manage as well when you’re really trying to have total control. And that’s the balance between impact and. And control.        


I find that people trade off. It’s very, very hard to have both really broad impact where the materials can be out there in the world and having really, really tight control. So that’s an individual business owner, right? Well, and I often tell folks that most contracts are like this, but a certification contract for sure is, it is a living document. You will learn things in every round or in every year that you run.        


And I find sometimes people start with wanting really tight control and then when they see what that looks like in practice and the resources it requires, and they gain a level of trust that their certification program is doing what it’s supposed to do in kind of putting those guardrails up that they don’t have to be so involved. That’s wonderful. Well, I so appreciate you spending time with us, and there’s a goodie that we’re going to link to in our show notes from you, which is the 2024 Online Business Legal Report, what business owners need to know to stay compliant and protected. I love a checklist. As a Virgo and exactly as a.        


Business coach, it’s a checkup. Yes. Go through and see. These are the legal issues that we are seeing with our seven and eight figure clients. What is kind of the new and trending topics so you can get ahead of the game?        


I really, I really appreciate that because it is something I think like going to the doctor and the dentist every year. Doing your colonoscopy when you get to a certain age is, it’s really good just to work these into the ways that you do business and it just means you’re not going to be hitting hit with something that is really distressing or has a huge price tag associated with it. So as much as possible, just begin to get familiar with working with lawyers, get certain things in place, and then hopefully over time, as you said, as you grow, I find just accounting for the legal expense, much like people don’t account for marketing expense, like marketing just happens when it doesn’t. It needs to be a budget line item. Yes, a big budget line item sometimes.        


And the same thing for legal and financial protections. Yeah, absolutely. Well, where’s the best way for people to connect with you? Yes. So everything is AWB Firm.        


So you can find us on social media. I hang out most on Instagram and Facebook, and then our website is just awbfirm.com. That’s where you can find the templates that we mentioned. And also if you are looking for one on one support, that’s how you can inquire to work with us. That is great.        


Well, highly recommended. I really appreciate you and thanks for sharing time with us today. This was a treat. Thanks, Pam. For those of you listening, you can get the show notes at pamelaslim.com comma clicking on the podcast button.        


I want to thank my 31 Marketplace production team, La’Vista Jones, Tanika Lothery, Jose Arboleda and our award winning narrator, Andia Winslow. Until next time, be sure to subscribe to the show, rate us and continue getting inspiration to help grow your world changing work at scale.

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