As a content creator, there’s a bunch of milestones.
The first blog post you publish is huge. The first time you place ads on your site? Amazing. Finally going full time as a content creator…WOW.
Then, there’s the first time you land your dream sponsored content gig! Congratulations!!
In this session from the Mediavine Influencers Conference in Austin back in 2019, attorney Jamie Lieberman of Hashtag Legal LLC gives tips to negotiate the best deal you can get, the terms of the contract you should include and what you should look out for when reading a contract.
Jamie’s a treasure trove on knowledge being in the business for over 15 years: you don’t want to miss it!
- Hashtag Legal
- Negotiating Contracts
- The Art of Negotiating | Mediavine Summer of Live
- Getting Legit with Legal | Designed for the Creative Mind
MUSIC PLAYING: I just feel so good, good good. Just feel so good, good, good. Just feel so good.
JAMIE LIEBERMAN: Y’all just had drinks. Come on. I think it’s suspect that the lawyer has to talk after the drinks. I get it, it’s not as exciting. We’re going to do our best.
So, today, we’re going to talk about covering your assets. And we’re specifically going to talk about sponsored content. And I’m going to talk about it from start to finish. So let me tell you about me. So I am Jamie Lieberman. I’ve been a lawyer for about 15 years.
I run #Legal, which is, like they said, a full-service law firm. We are dedicated to making legal accessible. We work with entrepreneurs. We work with influencer marketing professionals. We work with creatives, content creators. The thread that sort of binds all of our clients is there aren’t a lot of lawyers out there who speak that language. And so that is really our goal.
There we go. So we’re going to talk about contracts. And pretty much instantly, everyone went to sleep, right? We’re going to make this as interesting as I possibly can. There’s going to be some technical stuff that we talk about. I’m going to leave space for questions, because in a really weird turn of events, people always have questions for the lawyer.
So if you do have questions, I will happily take them and answer them as best as I can. Although, famously, I like to answer questions with, it depends, if anyone has ever heard me speak. So I will do my best not to use that answer, but I might. You’ll have to forgive me.
So I want to talk about contracts from start to finish. I want to talk about the sponsored content deal. So the last time I stood on a Mediavine stage, I talked all about negotiation. And this is a really powerful topic, one that I love more than anything. I love to negotiate.
And so I definitely say– I know all the talks are up on YouTube. I’m not going to spend a lot of time talking about negotiation, but I feel like it’s something worth touching on. If you want to go in-depth about negotiation, go to the Mediavine YouTube channel. My whole talk is up there. I have a whole framework. And I am going to offer you guys a chance to download my negotiation framework so you can see it. But a couple points I want to touch on before we get to the actual contract part of this talk.
So the most important part of negotiation, and this will help you in your contracts, is research. So the thing that you have to pay the most attention to before you literally do anything– I mean, before you make a phone call, because we’re all going to be making phone calls after this. I know. It’s OK. You’re going to do it. It’s going to– yes, you are. Yes, you are. Now I know you, and now I’m going to find you. We’re going to make some phone calls.
So research is our first thing that we want to do. And that can be done in so many different ways. One, you all know each other. We kind of live on the internet, right? So talk to your friends. See what they’ve done. See how they’ve approached certain situations for sponsored content, whatever that looks like. And that can look like– I guess we should really define what that looks like, right, before we even start talking.
So what I’m really thinking about is you entering into an arrangement with a brand who wants you to talk about them in some way, and they’re going to compensate you. And you can be compensated in a lot of ways. You can be compensated through straight up dollars, which we like dollars. And they could be just flat-fee payments. It could be something like an affiliate relationship, because those can be very lucrative. We leave so much on the table without spending time on affiliate relationships, and those can be and are like-sponsored content.
We’re also going to talk about shares, social shares, things like that. But anytime you’re entering into a financial relationship with a company or brand or person or whoever who wants you to talk about their products, that’s really what we’re talking about.
So for a lot of people who’ve done it before, it may be that it sort of just fell in your lap, which was kind of cool. Or maybe you went through an amazing agency, or maybe you had a friend who referred you. Maybe some of you pitch. But the most important thing for all of those arrangements is research. Know your market. Spend time talking to each other, and find your crew. Find the people that you can trust. Find the people who are going to tell you, this is what I did here.
And I understand, talking about money, that makes us all feel a little squirmy, much like legal talks make people feel a little squirmy. But if you find the right people, you can have those conversations. And sometimes you just talk about it generally. It may not be the actual dollars, but there’s lots of other currencies that you can use to negotiate. And so just take your time, do your research.
A big part of the research is not just about what other people have done. Because frankly, all that really matters is the deal that you want to strike. So that’s a really important thing. But the other thing to know is, who am I talking to? Who is the person that I’m going to get on the phone with? Who is the person I’m going to get on the phone with, or who am I emailing back and forth with? Do they make the decisions? Are they passing my information along to someone else?
You need all of this information before you start this negotiation process so that you are sort of not behind. It enables you to sort of have a much easier, streamlined negotiation. Because most people think of negotiation as just the bargaining, right? You go to a car dealership, and you’re like, I would like this Buick. And they say, it will be 10,000. You say, I will be pay you 5,000, and then you pay 8,000.
That’s not negotiation. Negotiation is a very long relationship that you formed. And frankly, if you do the work upfront, you’re going to do very little of the back and forth. So do your research. Talk to your people. Use Google. Use LinkedIn. Use social media. It’s what we do. And figure out who you’re talking to, what you’re looking for, what your best-case scenario is, and also know when you’re going to walk away.
And then the pieces that you can’t fill in, ask those questions. So get the information. Because what you’re essentially looking to figure out is what are all the important things to the brand, and what are all the important things to me, and how can we make them align? And so you’re going to ask a lot of questions, and you’re going to do a lot of active listening. Meaning you are going to be asking these questions so you can find out information so you know which currencies that you want to negotiate.
Some of those currencies we’re going to talk about in the sponsored content contract. And we’re going to talk about what a lot of those pieces are going to look like. Currencies are not just money. It’s so many different things. It’s exclusivity. It’s use of your intellectual property. It’s payment terms. It’s all negotiable. And so knowing what everybody’s position is– if you don’t know what it is, you ask those questions.
And my last piece of advice for everybody is reach really high. There’s too much self-editing that happens. There’s too much. second-guessing yourself. You know your number. And this is why I don’t know that necessarily talking money with everybody makes a lot of sense, because your number is very different than somebody else’s number. Your processes are very different than somebody else’s.
The numbers on your website are not the only factor that should go into that. It should go into time. It should go into how well it fits into your site, into your brand, all of those things. So reach really high. Because the most important thing to remember is just because you make an offer and it doesn’t get accepted doesn’t mean the deal is completely going to go away.
No doesn’t necessarily mean I’m never going to talk to you again. It just means we have to keep working through this deal. So stop being afraid of hearing no. No is a really comfortable place to be in. It’s perfectly OK. It doesn’t mean that the relationship is ending. It doesn’t mean that it’s all going away. Just means you still have to keep working on it.
So when you’re afraid of hearing no, when you’re trying to anticipate what the other side is going to say, that’s when negotiations fall apart and when you end up cutting yourself to low. So let’s talk about contracts. We’re going to hang on this slide for a while, so get really comfortable with it.
So everybody should know how to read a contract. I got it, it is not the most exciting thing. Sometimes you get these contracts, and it’s just like this massive wall of text. And then you fall asleep, and then you make a deal with yourself like, I’m going to get through this. I can read it. But you can absolutely read a contract, I promise you. Or at least have a bare-bones understanding of when you get a contract that feels wrong or off.
And so that’s the most important thing. As small business owners, you need to know some of the lingo and what it means. So I’m going to start and we’re going to walk through each of these.
So representations and warranties. You’ve all seen them, right? They’re in your contract. Who here reads their contracts? Let me start. Do you guys, really? I should go. No, you’d be shocked. So many people just sign. They don’t read. And who negotiates their contracts? Who red-lines their contracts and goes back? I love you guys. You’re like my people. We’re going to have a group hug at the end. I see you, Phil. I know you do.
It’s important. So I want to actually start with that. I want to back up a little bit. Contracts are meant to be red-lined. This is not just the lawyer who’s trying to make billable hours. They are negotiable. You do not have to accept those terms immediately. Frankly, there’s probably about 30 terms in that contract you never talked about. And so it’s really important. You are not going to blow a deal if you red-line a contract and send it back.
You’re also not going to blow a deal if you ask a question. So these are really important, to understand how to know what you’re looking at and to know when you do need a little bit of extra help. Because sometimes you get a contract that feels wrong. You’re not quite sure how to change it. You may not know what something means. So it’s important to know when those situations come up.
What is a representation and warranty? So a rep and warranty is almost like the bones of a contract. It isn’t the thing that you are promising. If you break a representation and warranty, you have most likely materially breached your contract. Nobody wants to do that.
So reps and warranties are the thing you put out there saying, I’m 18 years old, and I’m allowed to enter into this contract. You say nothing is conflicting with me entering into this contract. All of the content that I’m going to create is mine, and I own it. That’s a huge one. And so if you are hiring someone to create content for you or someone is hiring you, that should always be a representation, that they’re not stealing content. And you should feel comfortable repping that to whoever is hiring you to create content for them.
Another really important one– and this is one that often gets overlooked in sponsored content– your client, as a brand, should be repping and warranting that all of the claims that they’re making– this is advertising dollars– they can back up. So what if you post about– I think we all heard about the energy drink that blew up, Monster and the other one, right? That is going to hinge on the reps and warranties of that contract. Because it’s really important that if a company comes to you and wants you to create content about it, that the claims they’re making about their product are true and they know them to be true.
And so that’s a rep and warranty that I probably add in about 80% of all contracts I review on the side of an influencer. And so it’s important to know that. Because what if something goes badly? You need to be covered. Because how on earth are you going to check and see if that energy drink actually does what it says it does? You’re relying on their representation and warranty.
So those reps and warranties that most people glaze over are actually very important. And they are often the thing that will be the easiest to show if someone has breached a contract. And when we say breach, that means that they violated the contract. And we’re going to get to term and termination, but oftentimes, in many contracts, you can only terminate in the event of a breach, in the event of a violation. And I’m going to talk a little bit more about that later, but this is really important.
So representations and warranties are actually really important and should be read. And you should know what you are repping and warranting to, and you should also know what your client is, as well. So bear that in mind.
Another really good example of this is I’ve had clients who’ve created subscription boxes. For a little while, that was a bit of bucket list item. Everybody wanted to create a subscription box. And so what would happen is companies were coming to bloggers and saying, we’re going to create the subscription box for you, and we’re going to curate it for you. And you’re going to just sell it on your site.
And the most important thing, I’m like, what if someone gets poisoned by eating the food that’s in the subscription box? That is a representation and warranty that’s really important to have. And so nobody wants to think about what if, what if, what if. My brain was trained that way 15 years ago when I graduated law school. And so these are the things that we think about. So reps and warranties are important.
And sometimes they may ask you to rep and warrant something you can’t, because you don’t know. So read them and pull them out if they’re not appropriate.
Deliverables– so the deliverables are really the way that you protect yourself from scope, from the scope creep. It’s the way that when your client’s like, I just need one small video. And then two months later, it’s six videos, and you’ve redone it 50 times. You’ve been paid $500 for something that you should have been paid $5,000, and you are frustrated, and you want to quit. So the deliverables are where you avoid that.
So there’s a few really great ways that you can do that. Number one, if you don’t know your exact deliverables when you enter into a contract, that is OK, all right? So I’m not saying that you can’t enter into an agreement if you don’t know what they are. But make sure you agree to them later. So you can have this handy little clause that you put in that said, to be decided later, and you have to mutually agree upon it by mutual agreement of the parties.
And to do that, timelines are a great example, right? You ever have a client come to you and they’re like, all right, I need this. But I just don’t know when it’s going to be due, and we want to get you on board so you’re ready to go. We’ll agree to the timeline later. I assume many of you have pretty extensive editorial calendars, so sliding someone in can sometimes be really hard. So you’re sort of juggling that act of I want this money and I want this relationship and I want this to go forward, but I’ve got to make sure that I can actually do it.
So if you put a line in there that says mutual agreement of the parties and the parties can’t mutually agree, you can get out of it. And so if you’re unable to put in these important topics, make sure that not only do you say you’re going to agree to them later, but you actually have to agree to them later. So press the client and say, hey, I’m going to need that schedule from you, and I’m going to need to approve it, and I’m going to need it by this date.
And those things are movable. And you can do all these movements by email as long as you have an agreement. So I’m not saying every single time you have to amend a contract, you’re going to need a brand-new contract. You can create these amendments, so long as both parties agree that these emails amend it. And so that’s a really important thing.
Define your deliverables well. Go over and above. Be as specific as you possibly can. And within those deliverables, drafts are really important. Does your client want to read drafts? And what are they allowed to read the drafts for? And if they send a draft, what kinds of revisions are they allowed to give you? And after the post is live, are they allowed to ask for revisions? And are they allowed to ask you to pull it down?
So these are a lot of things that I frequently see missing in a lot of these contracts, because nobody really has thought about that or wants to think about that. And so it’s really important that you define what a draft looks like, how long your client has to respond to a draft. So if you give your client a draft, you can say they must give us a reasonable response within three business days or else the post goes live.
So make sure there’s an or else so that you have something you can do other than sit there and email your client and say, hey, I haven’t heard back from you. This needs to go in. This needs to go in. And then, very last minute, they’re like, it looks great, but we need you to change five paragraphs of it. So that’s really important. And so give yourself that space and put that into your contract, as well.
And so revision– drafts. That’s drafts. Revisions– so what I like to do in revisions, in a specific paragraph that says revisions in the deliverable section, is I like to include a clause that said the revisions are only permitted as it relates to copy or messaging relating to the product, or whatever it is that you are creating. So you specifically say, this is my style and tone, and it cannot and will not be changed. Because they’re hiring you for your style and tone.
If they’ve done their legwork and they’ve done their research, they know what your videos look like or what your posts look like, what your tone looks like, and so they shouldn’t get to change that. And if they want to change that, they should pay to change that. And so that’s another important thing.
If your client comes back to you and says, this revision’s not OK. We want to be able to change everything and all the things. You say, great. That’s an extra x number of dollars. And then you will get the extra x number of dollars or they’ll say, actually, it’s not that important. And you can go ahead and leave it that way. And so deliverables are really important to be specific.
In your deliverables should also be your timelines. And include timelines for revisions and drafts, and include timeline for when posts go live. And so make sure it’s clear. Make sure number of words for a post. Make sure the dates that you get, the marketing materials.
Because a client will often send you marketing materials, say we want you to just get the messaging or here’s some images for you to use or something like that. Make sure you have that date set so that if they don’t send it by that date, you have the ability to move the post to when it’s more convenient for you. And that’s the language that you would actually use. So deliverables are what you sort of live and die by in your contract, the one that makes sure that you are not in that situation where you feel intensely frustrated because you’re constantly getting things changed on you all the time.
Payment terms so this is a really important one. And it’s not just when you get paid, but it’s also how you get paid. It’s whether or not you get paid via PayPal, ACH, check. All of those things should be listed and what your payment terms are. In payment terms, you’re going to see net something. Most of you who read contracts probably know that. That means the number of days they have to pay you after you’ve sent an invoice.
And when do you send the invoice? Do you send the invoice the minute that you sign the contract, or do you send the invoice after you’ve put up your deliverables? That’s more and more time. So build that in. If you want money upfront, make sure that it’s upon execution of this agreement. So it’s simultaneous.
If they come to you and they’re like, well, it takes us 60 days to pay someone, that is not upon execution of the contract. And so make sure, when you’re having– and this is what I’m talking about currencies. This one’s huge. Because if you have something that’s net 60 after you’ve posted something, which may have been 30 days before that you put up, that’s 90 days before you’re getting your money. That’s a negotiation piece for you.
And so you say to them, well, I’m actually net 30. And so since I need to get this done, I’m going to send you the invoice now, upon execution, and then it will be executed before that time. And then you guys can process it, so I can get paid much faster. And these are negotiation points that you can put in place. And so those are important. So knowing payment terms.
We’re going to talk a little later about what to do when your client doesn’t pay, because that is a very common question. Another beautiful thing to put into your payment terms is that in the event you do have to chase a client, all of your fees are going to be paid for. Everybody likes to put the interest in. You can put it in. It’s never going to get paid, even if they’re late. I mean, very rarely. If it’s a very large amount and you’ve gone to court over it, you may get interest. But to try to get somebody to actually pay that is extremely challenging outside of court.
I’m not saying take it out of your contract. I’m just saying know that it’s in there, and it’s probably in there as a placeholder in the event that you have to go to court, which no one ever wants to do. But put a clause in there that says, in the event that you have to deal with collections, in the event that you have to get an attorney to get paid, make all those fees payable to your client. And that’s a clause I often see that’s not there.
So term and termination. So the term is how long is this live. How long does this contract actually apply to me? And so the important thing about a term of a contract is not only when it starts, which is usually upon execution. Sometimes it’s not, though, so you should note that. But when does it end? Is it when you do your deliverables? Is it six months later? Is it when the parties decide to terminate the relationship?
So it’s sort of important to know, because you have certain obligations, under that contract, that are going to actually go beyond termination. One of those, which we’re going to talk about, is confidentiality. And so you may have confidentiality requirements for 10 years after you’ve entered into this contract. So it’s actually really important to know how long your contracts go and if you actually need to terminate them.
People ask me this question a lot. They’re like, I’m not going to work with this person anymore, and so do I need to actually terminate the contract? Yes. You must terminate your contracts. So if you decide you don’t want to work with someone anymore, don’t just stop working with them, but actually let them know. Yes, that is uncomfortable. Nobody wants to do that.
But there might be some obligation in there you don’t even realize, like an exclusivity provision or something about a non-compete or a non-solicitation, something like that. Those are actually really important. And so you want to make sure that you actually terminate that contract so those provisions actually terminate, too.
There is a clause in contracts called survival, which always makes me laugh, because it makes me feel like I’m actually trying to survive reading this contract, because they’re usually at the end. But survival essentially means there are certain clauses that last forever, right? They’ll keep going. Intellectual property, confidentiality, certain other– non-solicitation, non-compete. Some of them survive termination of the contract. You need to know what your obligations are.
I’m going to talk about confidentiality, but I’m in your groups. I hear people talking. I’ve read many of those contracts, and I watch people violate confidentiality left and right. And so it’s really important to understand your confidentiality requirements in your contracts and when they expire. So know that.
Also know how you terminate. And there’s two provisions in a contract that are going to talk about termination. One, it may be it just may self-terminate, right? This agreement terminates upon the posting of the deliverables. And I like those that way, because then they’re done. You don’t have to worry about it.
It may say this agreement may terminate upon agreement by the parties. It also may say this agreement may terminate upon a breach of one of the parties. So what does a breach look like? A breach doesn’t mean that somebody is one day late on an email to you. So a breach, in lawyer terms, like I said, is a violation. And a breach is actually what we call a material breach. It matters to the guts of the contract.
Without that piece, you’ve lost the guts, like what the contract stands for. And so a material breach isn’t if someone’s late by a day. That is not the way that you get out of a contract. It isn’t if you don’t like what someone said to you. It isn’t if someone performed, but not amazing up to your standards. That’s really variable. It really depends.
And if there’s a clause that talks about sub-par work in your contract, that might be. But if there’s not and they’ve actually completed the deliverables, it’s a little bit harder. It becomes a little bit grayer. So understanding how you can terminate. If you have a contract that you can only terminate for a breach, you’re likely not going to get out of that contract without a bit of a fight and also without somebody doing something pretty bad.
That could be like missing of a payment, like a full missing of a payment. It could be if you completely blow your deadline and you just don’t upload the deliverables. Or it could be if they never send you the marketing material, so you actually can’t complete the post. And it would have to be a certain amount of time. You’d want a certain amount of reminders.
How you terminate is also important. There is a provision in a contract that are called notice provisions. This is something no one has ever read. They’re always just blown right by. There are, in most contracts, they don’t let you terminate by email. You have to terminate by overnight delivery in an actual letter.
And so knowing how you properly terminate– and if you think you’ve terminated and you just send somebody an email and you say, I’m terminating this contract. And they never answer you, and you go along your way. And then, all of a sudden, you find yourself in a situation where you think you’ve terminated. The first thing we’re going to look at is the notice provision. How do you provide notice under this contract? That’s what that means.
And so it’s important to know how am I supposed to provide official notice under this contract. This is also the same way with a breach. And so if somebody breaches, if your client doesn’t pay you, you may only be able to tell them that via an actual physical letter that you mail via overnight delivery, and you have to show proof that they received it. Many contracts do not allow for official notice through email. And so know how you have to have that communication with the other parties so you know that you’re properly giving them the notice that they need.
And so understand both your term, how long it lasts, and how you terminate, how it terminates, what happens when it terminates. Sometimes when it terminates, you’ve got to give them all their materials back. And so it’s important to know whether you have to do that. Or give them some proof that you’ve destroyed their materials. So that’s an important thing to understand, as well.
Exclusivity– this is another one. Sometimes you’ll see it, sometimes you won’t. And what does exclusivity mean? It usually means that you cannot form a relationship with another sort of group or party while you’re in this relationship with your client. And so you typically see it in the context of– I’m going to use breakfast for example, right? So you get an amazing sponsorship, and we’re going to say it is with Kellogg’s.
And so Kellogg’s comes to you and is like, we want to work with you for the next year. We love working with you. And we’re going to have this huge, amazing deal, and it’s like you’re in heaven. They say, but we don’t want you working with any other breakfast food companies.
What is a breakfast food? I will eat pizza for breakfast. So does that mean I can’t have pizza? Because that’s not right if I can’t talk about pizza on my site. And so a clear definition of what breakfast means is smart. Narrow those exclusivity clauses. This is another currency. This is a big currency, because exclusivity clauses are dollars out of your pocket, right?
If Kellogg’s says to you, you cannot work with another breakfast company, and you have another company that comes to you that’s maybe– I’m trying to think of what would be– like eggs. That’s a lot of money, right, if an egg company comes like, we want you to create all this stuff, that now you can’t do because Kellogg’s has you locked into breakfast. What does that mean? And so now those exclusivity clauses is really important.
I like to ask for specific competitors. So I like to make them have a list and say, OK, you can’t work with companies one through five. And then, that way, if a smaller company or something else comes along– and another great thing is if you have a good relationship and you’re not sure, ask. I had a situation where many, many, many years ago, I used to work for a blogging conference company who also had a blogging network. This was a really long time ago.
And they entered into a very long relationship. We put together this year long campaign. And it was for a certain– it wasn’t a medicine, but it was sort of an over-the-counter kind of thing that we were talking about. And it had a pretty strict exclusivity provision in it. And one of the bloggers wrote about something that nobody would ever think would be a competitor. It was just another company that sort of was kind of– it was not even close, but it was included in that exclusivity provision. And that blogger didn’t know, and she had committed to two different contracts that she had a really difficult time with.
And so it’s just important to understand. And if you’re in doubt, you need to talk to the existing client that you have to ask them. Because the last thing that you want to– or talk to a lawyer and get an opinion, if you feel like that makes you a little bit nervous. But at least know whether or not that could potentially be a part of that exclusivity clause, because it can cost a lot if you violate an exclusivity clause. And brands don’t take that lightly. That’s one of those things that they will actually be pretty upset about, and that’s the last thing that you want.
So understand your exclusivity. Understand how long exclusivity lasts. So some people– this is another currency– it could just last during the time of the campaign. So if you’re working with the brand and you say, OK, I’m posting for the next month. My exclusivity lasts for a month. Brands are going to want it longer– two weeks after, three weeks after. Sometimes they want it four or five months after.
If they want that, that’s more money, because that’s money that you’re giving up potentially for something else. And honestly, it may not even be money. It may just be content for your site. So if you can’t talk about breakfast foods for the next four months and you’re a food blog, that’s kind of a big deal. Because that’s one of the meals of the day, and my favorite, in fact.
So you want to make sure that you are making up for what they’re asking for, you’re being paid for. So that’s really important with exclusivity, as well. So not only what the category is, but how long it lasts.
Intellectual property– so intellectual property is the big one. Who owns the content, and what does it mean? So when you create something as a contractor– which most of you are, right? Is anybody here an employee that does this in their business? Most people are contractors. If you’re an employee, this is different, because that falls under the work for hire doctrine, and I’m going to explain what that is.
So, as a contractor, by default, what you create is yours. You own it. And so if you create a blog post, you are the owner of the copyright of that blog post. That means you own all the rights to it. And you could do whatever you want with those rights, right? You can give it away. You can ask somebody to pay for it. You can keep them all for yourself. And so what you see when you read an intellectual property clause is you are seeing one of two things.
You’re going to see the words work for hire. If you see that, it means you don’t own your content at all. Your client owns your content. So if you see those words, that means– I’m going to say it again– you can do nothing with it. They own it completely. They could turn it into a billboard in Times Square. They can make it into a cookbook. They could do whatever they want with it.
If you maintain ownership of your content, they’re, then, your client, going to want a license to do something with it. And there’s a lot of things you can do. You can display something. You can perform something. You can publish something. And you can create a derivative work. And so this is the important other buzzword that I want you guys to look out for.
A derivative work is when you take one work and turn it into something else. So the Harry Potter movies are derivative work of the Harry Potter books. JK Rowling got paid many dollars for Sony to let her make those movies. And so derivative works have huge value. And so in your license, I can almost guarantee it, the brand is going to want to be able to create derivative works with what you’ve created. They’re going to want that license.
That means they can put it wherever they want it. They can put it in a billboard in Times Square if you take a beautiful photo. They can splash it all over the internet in Facebook ads, including your face. All of those things. And so it’s really important that you understand what you’re giving away or selling, frankly, because that’s what you’re doing. You’re selling. And so understand how to read that license.
So if you see– typically, I think the most restrictive is what the use is. So you typically should allow your client to display the deliverables for the purposes of promotion on their social channels or their website. That is a really solid license, where you own everything. You’re not going to see it going everywhere and all of a sudden wonder what happened. And so understand what you’re allowing the client to do.
So if you start seeing use, display, perform, public, all those things, knock them out. They’re not necessary. They’re giving them a lot more rights. Unless you’re being paid for it. And if you’re being paid for it, if your client wants a work for hire, make them a work for hire. Just make sure you’re getting paid for a work for hire.
Because you can’t do anything else with it. And they are going to– it’s called exploit, which is just such a terrible word. But they’re going to exploit your content, and that means they’re going to use it and do it in a lot of ways. And they may not, but they have the right to do it, and you no longer do. And so that’s a really important thing to remember.
Along the lines of the intellectual property is likeness. I just got a call from a client who said, I just saw my face on a Facebook ad for this client I did work for, and I don’t remember giving them permission. So I went and I looked at her contract, and sure enough, likeness and biographical release. That means, and depending on how it’s written– and the thing you want to do when you read an intellectual property provision and a likeness provision is understand what they can use.
Likeness is usually your face. It could be your voice. It could be your signature. I’ve seen signature. I’m like, why would you want someone’s– I’ve taken it out. Or your biographical information– your name, where you live. If you have children that you post about, your children. You’ve got to be careful of that, right? The last thing you want, if you post about your kids, is your kids appearing somewhere without you having control over that.
And so understand what portions of your likeness and what portions of your biographical information the client is permitted to use and how they can use it. Not just anywhere in any media at anytime. Have you ever seen that one before? That’s my favorite. I was like, where am I going to end up? But what you want to make sure is how they can use it.
And in this one, in particular, it was in connection with marketing promotion of their goods. So her face was on a Facebook ad, driving people to a post that ended up, at some point, going to her post, but far down the line. And that contract allowed for it. So know what your likeness and know where your biographical information is going, as well.
Confidentiality– this one’s really important. Those confidentiality clauses, they’re like this long, right? They’re huge. And so know what has to be kept confidential. It’s really important that you maintain and understand what the definition of confidential information. If you read nothing else, read that. And make sure that whatever you’re talking about is not included. Sometimes the very terms of the contract are considered confidential. So that is a really important point, as well.
The last point I want to touch on before I leave contracts is non-solicitation and non-competes. Most people have a common misconception that non-competes are actually not enforceable. That’s not true in all states. If you write a non-compete– there are some states they’re not enforceable, and it’s a very state-by-state thing. However, if you write a non-compete correctly, it can be. And if you write a non-solicitation clause, those are typically enforceable.
A non-compete typically means if you do work for one person– it’s very similar to an exclusivity clause– you can’t you work for a whole bunch of people afterwards. They don’t come up as much, but they may come up in other contracts that you read, like a contractor, like if someone works for you or you’re going to go work for somebody else. But a non-solicitation clause, that means you can’t solicit somebody’s clients. And so if you are working with someone and that’s in there, just make sure you understand what that looks like and what that means and how it applies to you.
We’re done with contracts, everyone. Phew. FTC. I told the Mediavine folks about this. There was an FTC update that literally just happened, like, a day ago. The FTC put something up. There’s nothing new, by the way, because why would the government do anything new?
And I think, one, I will happily answer questions about FTC. But I think the most important thing to bear in mind is when in doubt, just disclose. And I’m going to go to the bottom. But lots of people don’t disclose. Why should I? Because at some point in time, the FTC is going to care. And also, it’s the right thing to do.
Transparency is right. It’s the same thing with privacy. It is good for people to know when you have a relationship with someone. Because frankly, it keeps your credibility going. So it really just is the right thing to do. I am very inclined and very excited to click on sponsored links, because I know I’m supporting somebody who creates content for free. And I’m supporting them and making their living and able to give me the amazing content I read for free.
And so it’s just the right way to go. It’s the right thing to do. But I do actually really believe the FTC is taking this very seriously, and they are starting to crack down more and more. And you just don’t want to be a part of it at all, so disclose.
The disclosure has to be clear and conspicuous. #ad always works. You don’t have to use it. You can use plain language. Another thing I want to point out is Amazon Affiliates just changed that language. I will drop that in, as well. So I’m going to see everybody writing this one down, because no one knew about that. Amazon Affiliates just changed the language that you have to use in order to disclose as affiliate links, and they are very strict. If anyone’s ever been banned from Amazon Affiliates, it’s hard to get back. So it’s important that you use the right language.
Clear and conspicuous means my mom, who has a flip phone, understands that that is sponsored content. And so we use the Mom Test. She’s in her 70s. She does not understand what I do it all. But she has to understand that your post is sponsored. That means it’s before the clickable link. Plain language has to be truly plain language. It can’t just be “thanks.” That doesn’t work. People don’t know what ambassadors are.
That FTC language, it’s really good. It’s very helpful. There’s one or two things that it made me pause for a second, but for the most part, I think it’s really helpful and worth looking at.
Late-paying clients– this is, honestly, the biggest challenge, right? So, at some point, this is the cost of doing business as a service professional if you don’t get paid upfront. There are going to be clients that don’t pay. There are going to be clients you can’t collect on, period, end of story. If you’re going to be in business, you just got to get used to it. It sucks, and it hurts, and it’s emotional.
But when you take the emotion out of it, my biggest piece of advice is think about the dollars. If you have a $300 invoice, which I’m not saying is a small amount of money, that might be one that if you can’t get anywhere, there’s not a lot you can do about it. Because chasing that, at some point, the time value of that money just sort of goes away. So look at the amounts.
You can send someone to collections. You can have a lawyer send a letter. I will tell you, if someone gets a letter from me, they’re a lot more inclined to act quickly. And so that works. But you have to make sure that it makes economic sense. I turn clients away all the time who come to me with a dollar amount, and I was like, you’re just going to pay it all to me, and I’d rather you not do that, because that sucks. That’s not right. And so evaluate the amounts.
And lastly, if it is a large enough amount, it may be worth considering going to court over. It really is. Because if you have that amazing fee shifting clause that I talked about– I brought it full circle– you could get your attorney’s fees back. And while that’s frustrating and it’s out of pocket and it’s not great, sometimes it’s just the way you have to go for a large enough dollar amount. But talk to a lawyer about that if you do have a late-paying client about what makes sense.
Don’t do public shaming. That doesn’t work ever. That always backfires. It’s frustrating. I get it. It’s emotional. But it also is business, and it happens. It even happens to lawyers, as frustrating as that can be.
So I wanted to leave a little bit of time for questions. And this is my negotiation work site. We have a whole framework that we do on negotiation. This is me. I would love to hear from you all, and I will happily take questions, if anybody has them. And thank you for listening to the contract talk. [APPLAUSE]
AUDIENCE: Thank you. I just had a quick question, because–
JAMIE LIEBERMAN: Sure.
AUDIENCE: –it seems like, oftentimes, it goes in waves with a lot of the networks or a lot of brands, where they will actually start adding in this derivative– like now this is like a trend, with brands adding in this derivative, as well as the kind of taking your likeness.
Now, in your negotiation, it may be here or may be something you can– how do you push back and/or is there a, well, that’s going to be x dollars times two? How do you push back to that? Because some of these people, I don’t even think they realize what they’re ask–
JAMIE LIEBERMAN: It’s true.
AUDIENCE: It’s just a– you know. How do you push back to that?
JAMIE LIEBERMAN: So you could do it in a couple of different ways. You can red-line the contract and just cross it out, honestly. Just take it out. And when they push back on that, you could say, oh, yeah, I mean, that’s just, that’s not what– my fee didn’t include that. And if you want to talk about that, I’m happy to. And so that, I think, is really effective.
9 times out of 10, when I pull it out, they don’t put it back in. If they want it back in, then we have that conversation. But I would make it so matter of fact, like this is just– you didn’t ask me for this when we talked about dollars, and that’s not sort of the standard contract. So I think that’s the best approach. I don’t want to scare you.
JAMIE LIEBERMAN: Hi.
AUDIENCE: Sorry. Would you recommend collecting a retainer or advances to help with clients who don’t pay or do not pay?
JAMIE LIEBERMAN: I think those are really great tools. Another really great tool that I find is you don’t– if you’re creating for someone, say a work for hire, you don’t release the intellectual property until you have full payment. So they’re not able to exploit what you’ve done without having that full payment. So that’s another way to do that. But yes, work upfront, even if it’s just like a good faith deposit, is always great. And there’s no reason not to ask for it.
I will tell you, most of my clients do. At least, a lot of them ask for at least half upfront.
JAMIE LIEBERMAN: Hi.
AUDIENCE: I haven’t done any sponsored posts directly with brands, so I’ve only worked through activators, so I haven’t seen a contract like these yet. Is it usually the companies that make the contracts, or are we making the contracts?
JAMIE LIEBERMAN: I get to say it depends. It depends, honestly. Some companies that are sort of dipping their toes in, they don’t have contracts. And sometimes they come back with hilarious contracts, where you’re like, I’m not sure what this is for. So a lot of bloggers or creators have their own so that they have it. Frankly, when you have your own, it’s kind of on your terms, so it’s going to be skewed a little bit more towards you. And so you don’t worry about knocking out the derivative works, because you’re never going to put it in there to begin with. So it’s good to have one.
Many huge brands will never look at your contract. So it really is a conversation and a question to be had. And also, if, in your negotiations, you find out that the brand doesn’t have one, you’re likely going to have to pay to get one. Because I wouldn’t advise trying to sort of piece one together yourself. So, in some capacity, build that in, because that’s a cost. And so it’s something to think about in your negotiations, as well.
AUDIENCE: Do you guys do that?
JAMIE LIEBERMAN: We do, yeah. Any other? Wow. Ah, you guys love me.
JAMIE LIEBERMAN: Where’s–
AUDIENCE: I’m right here.
JAMIE LIEBERMAN: Oh, there you are. Hi.
AUDIENCE: Two questions. The first one, with those new FTC guidelines that just came out that aren’t new, but one thing I noticed that they clarified is they said likes and pins.
JAMIE LIEBERMAN: That was my head scratch.
AUDIENCE: OK, because like you can’t disclose a like.
JAMIE LIEBERMAN: No.
AUDIENCE: And if I worked with Jamaica and then Kirsten wrote a post and I pinned her post about Jamaica, because I’ve had a previous relationship with Jamaica, am I supposed to disclose on her pin?
JAMIE LIEBERMAN: Yeah. I honestly was like, I don’t know how a human does this, other than you don’t do the pin is the problem. Because you can’t disclose a like, right?
JAMIE LIEBERMAN: I think if you were to just, in passing, give someone a like, I’m less worried about that. But it is very clearly written there. So I will tell you, I honestly don’t have– there’s going to be a lot of questions and pushback on that. So I feel like we may get some clarity on that, hopefully. But that one was the one that was like, I don’t know how that’s going to happen. Yeah, it’s a strange one.
I mean, I think, at the end of the day, what they’re really trying to say is if you do have a relationship, don’t do anything that is in furtherance of that relationship without people knowing about it. So I know a lot of people are like, well, I have a relationship with Jamaica, but they didn’t pay me for that. But you still have that relationship, and you may not have liked it if you didn’t have that relationship. And so it just may make people pause a little bit more on that. But I think that one would be probably a harder one to enforce.
AUDIENCE: And then the second question was, with travel situations, have you noticed– because I’m in a travel writer’s group, and they were just talking about how magazine writers, editors, newspapers, none of them could care less about disclosing. Their writers go on trips all the time, and there’s nothing said about it. So why is it the FTC is identifying this one level, but not realizing that there is a whole other level of publishers that aren’t disclosing?
JAMIE LIEBERMAN: So that the answer to that, as given by the FTC, is people know that that happens. And frankly, in true journalists, it’s not supposed to. And so I think the issue was, and continues to be, if you look at my mom under the Mom Test, my mom doesn’t know when someone goes on a trip that they’ve probably been given a trip. But if my mom sees something written about in a magazine, she’d probably think they might have been.
And so that’s really– it’s consumer perception, because that’s what the FTC is about. They’re all about protecting consumers. That’s their whole point. That’s why. It’s because social media and the way that this world has grown so much, this whole market has grown so much, we are living in it. But the majority– like how many of you have friends who are like, you do what? Still. I’m married to a lawyer, and he’s like, you do what? They just don’t get it. And so that’s honestly the reason why. 10 years from now, it might be different.
AUDIENCE: We’ve got time for one more quick question.
AUDIENCE: Got it, right here.
JAMIE LIEBERMAN: Oh. Hi.
AUDIENCE: Hey as far as for a work for hire in a contract, say you entered into work for hire with a spaghetti sauce brand and you developed a spaghetti sauce. Does that mean you can never write about spaghetti sauce again? Where are those parameters for work for hire that you don’t want to cross?
JAMIE LIEBERMAN: So those are two different things. Work for hire just means who owns what you created. Exclusivity is who you can and can’t work with. So if you create a work for hire, like if you create– let’s say for the spaghetti sauce company, you’ve created a blog post for them, and it’s work for hire. They own that blog post. They own everything about it– the copy, the picture, whatever you’ve written. That’s different than exclusivity.
AUDIENCE: If you wrote a different type of spaghetti sauce with different ingredients, then you’re fine?
JAMIE LIEBERMAN: Yeah, as long as there’s no exclusivity provision. Like if you have something saying you can’t work with another spaghetti sauce company for six months, then don’t do it over that six month period. Cool. Thanks, guys.
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