Episode #9 Legal & Trademark Advice for Graphic Designers: Copyright Laws Decoded

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So today we’re going to be talking about some legal topics surrounding being a designer, including how to avoid legal issues around logo creation, copyright questions, how to stay legally protected, and more. So I’m super excited to be joined by Brittany Rattel. She is a small business attorney who helps modern entrepreneurs get legally legit.

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And she’s helped hundreds of founders protect and grow their brands without getting overwhelmed or bored, which we know happens with legal terms. And she’s worked with such clients as the BucketList family, HopeScope, Blogilates, Sharon Says So, Glowatonmo, and many more, which I will have in the show notes for this. And Brittany lives with her hunky husband and four kiddos in her beautiful hometown of Coradolene, Idaho, which is in the Pacific Northwest, close to where I am.

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But she supports and educates creatives and creators all over the US with a mix of fun and accessible legal resources. So I am so excited to be joined today by you, Brittany. Come on here.

We’re going to get right into some exciting questions. Thank you, Lauren. I’m so excited to be here.

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Thank you. Awesome. So now you obviously are, you’re such a you have such a fun vibe and everything.

I’m so amazed and admiring the fact that you are an attorney and you understand the legal side of things. And so coming from a standpoint, obviously, my listeners are designers, mainly freelance designers. So they’re looking to start their business.

They’re already in the trenches. So what are some common legal type mistakes that are made by designers or creatives that you’ve run into, and how you can avoid them when starting a business setting up those contracts and such? Yeah, such a great question. So I love working with, you know, creative freelancers, and I think that they’re so talented, and they have so much to offer.

And I always want to make sure that they are matching all that skill and passion with the right type of business boundaries, right? I’m a business boundary queen. I’m a big fan of them, because I think they really allow you to use your the strengths of your expertise and what you want to deliver. And, you know, most of us, we really want good outcomes for our clients, just like a client wants to be served well, you want to serve well.

And we want to make sure we can do that by setting up expectations and doing a good job. So like you said, probably the most important thing for freelancers is contracts. I recommend you know, I say in turn, really, the most important things to start out are usually setting up your LLC and contracts.

So and I would even for freelancers, maybe even put contracts above LLC, if you had to pick one or the other in terms of order, although LLCs are usually not as hard as you think they are to set up and get your entity going. But if you have to, when push comes to shove, because contracts really allow you to set up clear expectations and put in boundaries, and make sure that you have been thoughtful and intentional about how you’re going to work with your clients and making sure that we you are all incentives are aligned. And you’ve thought through what is supposed to happen.

And then the unexpected Well, what happens if what we don’t expect happens? Right? What happens if the client goes to you? What happens if you get sick? What happens if the whole world shuts down? Right? We think of like COVID and how we all got an introduction into force majeure land. And so getting things in writing, I have kind of a legally legit framework of way of getting working through getting protected. And that G in legit for me stands for getting stuff in writing.

And so contracts are really your most important thing, because they’re going to protect your revenue stream. And they’re going to make sure that you can protect and against, you know, good clients. And then some of those clients who maybe are bad clients, right? Maybe there might be even vampire clients, that’s what I call them or people who there may be out there and they end up sucking your energy and your time and your love for the work and you want a way to be able to deliver and then get out of there without suffering to more and contracts are really the greatest tool to do that.

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Great. Okay, so like for contracts, what are some of those main things that you have to put in place to just get all your boundaries in place and in terms of protecting those vampire ones? I love that term. Because yeah, have I have I run into those and they seriously do suck everything out of you.

So they’re, they’re not they’re not sparkly. There is no there. We’re not talking about Twilight vampires here.

These are the real deal. So yeah, so let’s kind of start at the top of the contract. So most important is to make sure that you are entering into contracts on behalf of your business.

So make sure that the top first paragraph usually have a contract, you are entering it on behalf of your business entity and not you personally. This means if you’ve set up your LLC, your LLC name should be up there, right? If not, then that’s going to be your sole proprietorship name. And you don’t really have that legal protection, which is another reason to set up an LLC.

And then going to be the name of the client, or sometimes that’s a blank field or a smart field, or if you’re using like a Dubsado or HoneyBook, or maybe like a CRM or project management app, right to kind of help and fill that information in. And then the next thing is going to be the the what, okay? What are you doing for your client? What kind of services and the scope of work here should be very tight and very specific. Please resist the urge to keep this vague to keep this open ended to be like, Oh, you know, we’re just going to work together and we’re going to do a new website.

What kind of website? How many pages? How many wireframes? How many rounds of revision? What does the client need to do to get to you so that you can do your job? How much time do you need? What if the client is dragging their feet, right? What if they don’t produce good copy or good images? What if they get you stuff that’s riddled with mistakes and errors? How are you going to protect against that? So that scope of work should be really tight in terms of deliverables, especially if you are billing on a flat fee or a package basis, which usually most designers tend to move into that area and probably should be because you’re going to be priced on value based on just trading time for money. And then I always like to have some caveat protection there of maybe a billable rate, right? And that might include a change fee, right? Is how you might say any changes are going to be at this rate or rush fee or an error fixing fee or something, but some kind of cap or limit and protection for you that you can fall back on if you need to, right? And then the next thing after that is going to be the money, right? This is really important, obviously, because this is where people get upset. And this is who holds the leverage is usually who holds the money in a client relationship.

And so we want to be really clear how billing and billing timing is going to work. I highly recommend that freelancers use some sort of milestone payment system, which means that you should be getting some payment up front to secure work on your calendar, right? And secure, especially if you are turning other projects away, there’s an opportunity cost to that, right? There’s a real cost to your business, especially if you are having to invest in any materials or labor to get this project started. You want to make sure you’re not left holding the bag if someone gets cold feet.

And so and make sure that that first payment is characterized as an initial payment or a non-refundable payment. I don’t love the word deposit. A lot of people use that and they deposit in a different way than what the actual legal term of deposit is used in a lot of states, which means that’s a fee that you could get back of certain things happen, right? It’s a refundable fee.

Think of it like when we rent an apartment, right? We put a deposit in. Well, you could get the deposit back. Now, sometimes if you are like me and have four kids, we know we’re kissing that deposit goodbye.

We’re not seeing that back, right? Back when we were renting. But and most people usually try to explain the deposit that it is non-refundable, but it’s still just not a great choice of words. And so characterize that and call it an initial fee, a booking fee, a first payment or something.

But please don’t call it deposit. Let’s just X out, you know, red line that language. And then I like to have payment milestones.

And so maybe there’s another payment when a first draft is due or the first round of revisions or the first wireframe or design, whatever your process looks like. And then ideally, full payment should be in hand before you turn over the final files or deliverables. So there’s a Murphy’s law in freelancing that the bigger the check that someone needs to write, the more something goes wrong.

And so even if throughout the entire project, you’re like things have been going well, we’ve been vibing like the client seems really happy. There’s something weird that happens in clients mind when they get out that checkbook, right? To write that big check. And it’s a big number that they start to be like, maybe I wasn’t happy.

Maybe this wasn’t what I wanted or something went wrong. Or, you know, my business partner says, what is that? Or who knows life happens. And so don’t set yourself up for that kind of opportunity.

Make sure that you have payment along the way. And you are all incentivized to keep on working, keep on doing your homework. So the project ends on time on budget and everything else.

So that’s kind of payment. And then also on payment, make sure you have some language about late fees and collections, right? And that you can collect attorney’s fees. And that way, you’re giving you some protection and options in case you have to make good on those, right? In case those payments are late, make sure it’s, you know, net 15, net 30, like, you know, how, how we’re invoicing going to is going to work.

And there’s a clear expectation for that. So and then, you know, there’s other things that needs to go kind of the next bigger area is intellectual property, right? And that’s kind of the rights of what’s that breakdown going to be in a contract. And so that will really depend on the type of work that you’re doing and what the expectation of the client is, obviously.

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So if you’re doing branding and identity work, most of the time, the client’s expectation is they’re going to hire you and they want a full buyout of those rights, because those are things that are going to be very unique, exclusive work to them. And they are going to need to use that and license that and repeat and develop that because it’s part of their core branding. If, however, that’s not your case, and you’re maybe doing some designs or some designs for some purposes, but hey, if you use these for print, or if you use these in other ways, or if you make these into templates, you know, there could be other other licensing situations set up, then you could have language that explains that.

You want to make sure that’s really clear, I don’t really like gotcha legal language, meaning there’s language in your fine print that no one has really read and understand. And you haven’t pointed out to the client or really or explained it and they maybe didn’t read it, right, they just signed it and kind of glossed over it. Because those kinds of things tend to lead to bad customer service relationships, right.

And so even though it’s in your contract, and forcing that could be really painful, and could leave a bad taste in everyone’s mouth. And so you want to make sure what’s in your contract is really clear and your onboarding and your sales language and your discovery calls, all of that should really be, you know, whole and consistent, because you’re not trying to trick everyone, right, you’re just trying to be transparent about how the relationship is going to work. So those are kind of the main things.

And then there’s going to be some boilerplate stuff, like in my client service agreement that I sell on my template shop, you know, I address things like force majeure and liability and like, hey, any information that you give me client, I’m assuming you have the rights to use because I’m not doing checks on that, right. And so if there’s a problem, you know, not yo, I’ll solve it, right? We’re not vanilla ice ice baby, it’s actually your problem. It’s your stuff that you gave me that was kind of tainted.

And then some other language about like, you know, liability, this especially important for like my web designers, or anyone who’s doing more interactive pieces is, you know, we’re going to check on different browsers and different devices and operating systems, but things are updating all the time, you know, if it doesn’t work on one system, that we’re not responsible for that, you know, if things if photos look different, or text or whatnot, or if you’re doing stuff that maybe you’re working on a site, and maybe there’s some SEO implications, you want to make sure, look, we’re not promising any results or sales or rankings or whatnot. And so you want some language to kind of couch and make sure people have, you know, some realistic expectations of your work and what your work is supposed to do, and not do so. And then contracts overall, they can definitely be don’t let anyone force you into doing like printing and scanning and ink signatures.

We’re not in Harry Potter, we’re not waiting for a Hogwarts letter. So you don’t need to worry about getting those quills and letters out. He signatures are totally enforceable.

And so make it easy to have this part of your client process. So ideally, I say most people, when they maybe have like an initial booking form, like maybe a web form or something, or there’s an inquiry, and then you usually have a discovery call, that’s where you want to be getting all those questions, and then put together, you know, the proposal or the contract. And some people like to have it where the contract or kind of more standard terms and conditions.

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And then like the scope of work, right, that kind of Exhibit A is going to maybe have more of the specifics on the deliverables and the timeframe. And I need a first draft, or I need copy from you by this date, so I can get first draft. And that’s really normal to have that type of setup.

And that’s the options I give in my client service agreement, along with a client timeline, I think that that sometimes can be good, especially in design work, because a lot of people are visual learners, right? And that can kind of keep them everything aligned of like, okay, this needs to happen. And this is when this payment is due in this draft, or how many drafts and revisions, right? And then everyone knows what’s going on. And we don’t have any, we don’t have any question marks.

So great, great. Wow. Well, that’s, that’s a lot and very helpful.

And I like the way you framed it. And it brings up a few questions that I actually wanted to get into. Which is, the first one is, who would you advise to have an LLC versus a sole proprietorship? Because when I was diverse starting my business, I did the sole proprietorship and I later moved to an LLC.

And I’d love to hear your take on at what point to set up the LLC rather than the sole proprietorship. Yeah, and this is it’s a great question about timing. So um, so sole proprietorships are basically if you do nothing, your default is that you are a sole proprietorship.

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That’s what your state considers you. That’s what your the IRS does. So it’s you running a business and you haven’t set up any entity yet.

And the bummer thing about that, that a lot of people don’t understand or appreciate is that it doesn’t have any liability protection. So it means that all of your money is mixed together. It means that your business money is mixed in with your personal money.

There’s no separation, there’s no asset protection, which means that if you were to get sued, which you know, though, those are few and far between right in terms of a creative business, but not but not wild, it does happen, right? Someone could have potentially have access to all of your assets in a judgment, right? And they could collect against all of it. Once you’ve set up an LLC or limited liability company, there is now a fence in between your money. And when you run your business, the worst that can happen is something can get to your business money.

So picture this like you, you have like the Titanic ship, and you know, the iceberg comes, that’s a litigation, you know, scary judgment comes along, it scrapes open a hole in the side, well, those doors come down right on that flood room. And now the worst that can happen is that room floods, but that’s it, it doesn’t touch anything else. It doesn’t touch what you might with a spouse, your savings, your 401k, what’s in your home, your personal savings account, whatever, all off the table, your retirement, the worst that can happen is it gets to all the money in that business in that flood room.

But without those separations, everything’s on the table. And so it’s a really important step. So I would say to people, if you have started making money, if you plan on making money and continuing in your business, I would register an LLC as soon as possible.

The cost of it in most state is somewhere between 200 to $300. It’s not crazy. And so for the investment that you get and the ROI on it, that return, it’s kind of a no brainer, right? And what I love about it as well is that I’ve seen it has and kind of starts a very good cascade of like a good ripple effect in your business.

Once people set up their LLC, and this is the order I recommend on my legal checklist, which we’ll link in the show notes, but you set up your LLC, then you go get your EIN, right? And that should match your LLC. You go get a separate business bank account in the name of your LLC. You set up payment processing that goes into that account.

All money goes into that business account. All expenses should be paid out of that account. And now you’re kind of like churning along and you’re watching your numbers and you’re keeping track and you’re showing up with a different energy in your business because you’re an LLC.

You’re a real business now. And I’ve seen it too often to count it as like coincidence or woo woo, but like people show up differently once they’ve started their LLC and they’re like, I am drawing a line in the sand. I’m a real business owner.

I’m not just like, oh, I’m running a little shop or like I have a little hobby or like I design on the side. No, I’m running a business and I’m going to price it like I am. I’m going to contract like I am.

I’m going to pitch myself. And there’s just a swagger that comes with it that I think is really helpful, especially as creatives, right? Who we can sometimes get in our own head, in our own way and kind of get bogged down by a little of that resistance, right? That Steven Pressfield talks about that. And so having that as kind of your, a business milestone could be a really important thing to celebrate and to mark.

Ooh, I love that. I love that angle so much because that’s how I felt too. So you’re totally right.

That has that ripple effect. And I definitely will link to that, to the checklist so that people can have that for you in the show notes. And, and so when, now you mentioned something that about, you know, if, if something, some client were to sue you in a situation, have you seen like, what are, what would be some common reasons that a client would sue? Or like that we should like have that extra protection.

Obviously I haven’t had this happen to me in the eight years I’ve had my design business, but you know, you gotta be prepared for those situations. So do you have examples of what that would be? Yeah, definitely. Yeah.

So I would say the most common one that I’ve seen in the design field and freelancing is probably, you know, the, the kind of the relationships hours in terms of, it may be took too long and the client now wants to cancel or wasn’t happy with the result. And the designer is like, no, you still owe the money. We’re done here.

And then that deteriorates into, okay, well now we’re going to sue you. Right. And it’s usually because the client now either wants money back or doesn’t want to pay their final bill, whatever that looks like.

And the designer is like, no, we’re done. We delivered as we promised. Right.

Or whatever the result was. And so that’s, that’s usually what it is, is kind of, it comes to a debate. And so for that, you really have to come back to the contract because that’s going to govern the most protection that you have and be really clear of like, well, what was, what was contracted? Right.

What was the scope and where, you know, how long was it get to be? Were you clear about, was the designer supposed to do all this work? Was the designer free to subcontract? Was that okay? What was the timeline? Were they delayed or late on doing things? Was the client delayed and late? And if so, is that not the designer’s fault? And that’s why it went over time. Right. And so, you know, they missed a launch period and they’re really mad about that of like, oh, we were supposed to have the site ready for this big sale.

And we weren’t. And now we’re really mad about that. Well, it’s like the designer, of course, is going to come.

Yeah. Well, you didn’t get me what I needed to, you know, I’m a very expensive content creator and we didn’t agree for me to be having to, you know, write everything from scrap. You were supposed to provide me with the files.

And that’s generally where kind of the breakdown happens, as I’ve seen. And so, you know, there’s also sometimes some things about, you know, use of IP. Right.

But that’s, I would say, more rare in terms of like, oh, you know, you used a design that you weren’t supposed to, or the rights belong to someone else, or it was copied. Right. I’ve seen some of that.

And it’s usually, yeah, people going too fast or designers not being careful about influences on their work. And so I would say designers, it’s always a good idea to be just to be careful about your influences and making sure you’re treading that line of being inspired by other work and not copying it. I always recommend that anyone in the creative field try to go wide for your influences and not stay too narrowed in your niche.

Right. And so if you find yourself consuming too much of exactly what you’re creating of content, you know, close, close, Google image search down, close Pinterest down, right. You know, get out your notebook, go outside, go look at art or fashion or nature, or something outside of your niche for a little bit, and try to go from pull from a wider influence.

And that’s going to usually inform and have you create better art right in your head, versus something that starts to look too siloed and close to someone else closes work, right, which is going to be, you know, problematic. So. Oh, that’s great advice.

And you you have, I have so many questions popping up in my mind. I’m going to try and wrangle them in. So I’ll start with this one, just because I know that there’s designers listening to this right now that are like, Oh, man, so what happens with this? So what advice so there’s, but this is a lot of designers are brand identity.

So they’re creating the logos, they’re creating that that brand for clients. What, how do you avoid those legal issues or verify like, normally, the designers, not the one who’s going and getting the logo trademark, the client will do that later. So what preparation? Like you, you kind of touched on it.

But is there any other advice on this point? Yeah, I mean, I would say kind of, I think a two prong approach one is I would make sure that in your contract, you have clarified that you don’t give legal advice, and you’re not doing a trademark search, right? And that that’s part of your package. And that if something is comes back is not being available to use, like they don’t get another freebie version, like you don’t have to redo everything like that’s, that’s their problem, and not your problem. So I would say clarify just kind of the timing and role, because that will make sure that clients understand, you know, as a bit of education, that that is something they should be thinking about before they’re investing.

And so they should be reaching out earlier in that phase of ideation when they’re going around brand names. And, you know, and I’m selfishly saying this, because I am a trademark attorney, and I’ve helped a lot of brands. And it’s, it’s, you know, I’m always, you know, okay, I hope this works out.

But when someone gets to me, and they’re like, we’re rebranding, and here’s our new name, we’ve been working for a designer for months. And here it is. And I’m like, Well, I hope we can use it.

But like, I really wish I would have got pulled in on this conversation earlier, right? Like, that’s not quite the right order. You know, really, you should have a few names that you’re testing around, and you’re starting to go down that that’s the time when you should be contacting and working with a trademark attorney to do some searches or even triaging. This is what I do for clients sometimes where I’m like, this stuff is more green, and this stuff is more red light.

So I would go this area, right. And before we do like a final full search, because I get it can be expensive to be running full searches on everything. So just know that that maybe some of that education you can you can do to your client.

And as that process, right to avoid because they’re going to be frustrated, even though it’s not your fault at all, if they have to redo everything. So and then the second piece is kind of close to that is that is there a value add that you can add in that process to be able to recommend, hey, if you don’t have anyone you’re working with, I actually have an attorney I recommend or here’s something you can do or even you yourself, try to at least do an initial trademark search and learn how to use that database to just do knockout searches. And again, this is not to say that, like, you should pull that out as like a legal comprehensive search, because it’s incredibly difficult to do even for seasoned attorneys like myself, and I filed more than 300 trademarks.

But I tell clients still, this is an art rather than a science, because I’m trying to guess how another attorney, another human attorney on the other side of the trademark office is going to see is something being too close and what’s problematic. And the only reason I’m better at doing that than other people is because I’ve argued and litigated these cases, right and understand what’s probably too close to close too close. And so being able to do that and in searching yourself is still really hard as just a peasant is just a commoner.

But if you go on the trademark search system, and there’s a new one as of December 1, they did we have a whole new trademark search database. If you type in a name and you see something that is a live registered trademark for a similar category of goods and services right now, that that’s a red flag that probably that name is going to be problematic. And so that’s something that you should be able to know right away.

Hey, I don’t know if this is going to work, or you might want to think again for this name. And that’s going to save everyone a lot of a lot of heartache and grief, right of falling in love, which is what we do. We fall in love with our new business babies, our new brand babies.

And then it’s heartbreaking for someone to tell you, you’re not going to be able to use that there’s no way we’re going to be able to trademark that or move forward or launch with these goods or services because we are going to get a cease and desist as soon as we go live. So Wow, okay, that’s Yeah, that’s a very scary situation. I’ve had a client actually who had to change his name.

And I had to redo the logo. So in is this does the trademark include the actual mark like the logo itself? It can. So you can mark most you can trademark any kind of brand, indicia or assets, anything that marks it as a source indicator.

And so the most important ones are usually wordmarks. And that those are usually the first ones. And that’s just the name of the company.

And it doesn’t matter the font or the color or the style or anything else. It’s just like the word marks. You can also register logos, right.

And so this is the visual design. And those are those searching is a little bit harder, because you have to go and look up the design code for a trademark. So say, for example, you were going to do an ice logo for like an ice cream company.

And maybe you have a cool and this is like it’s I have a daughter who has like a little boutique ice cream company that she started because she’s a ski racer. And so it’s like a it’s like a piece of ice cream. And then there’s like a skier going down like the slope of the ice cream is what we made her logo look like.

Oh, cool. So for that, I would be searching for ice cream, waffle cone, and then skiing. And so those elements and so if you go in the design code on the US Patent and Trade Office on the trademark search, you can look up what those codes are.

And then you need to be searching to see, okay, is there anyone else who has a logo that incorporates some of these elements? And again, you’re looking to see, okay, how close is it? Is it live versus dead? Usually don’t have to worry about dead marks, because those are gone. But if it’s a live mark, and they’re selling what you’re close to selling, if they’re selling something completely unrelated, like think of dove and dove, dove chocolate, dove soap, both have trademarks, but no one confuses soap for chocolate. And so they’re both allowed to have their trademarks.

But if it’s like jewelry and sunglasses, even though those are technically different in different classes, a lot of companies sell jewelry and sunglasses. So they’re probably going to be too close. Right.

And so, and so yeah, and then after that, you can start trademarking, you can get into you know, further strategic development, you can trademark brand names, I mean, like course names, program names, product names, collections, slogans, you can even trademark colors, or like the sound actually was just in the trademark database the other day. And I saw BMW has like a sound one for the sound that’s featured in their cars that plays like this sound and it’s they use in their commercials. And so but those are usually harder to get, you have to show that you’ve been using those enough that they have like secondary meaning, right? When people see those, when they see that hot pink T-Mobile, oh, they think that that is a that’s a T-Mobile, right? Versus just any any other color you same with like UPS brown is the color that’s trademarked.

So if you’re going to start a shipping company, don’t use that color. Yeah. Wow, that’s so crazy.

Okay, I and and then in for the designers, with should they be doing the trademark them search themselves on the logo? Like that? Should they should we be learning this database inside out to be able to do it ourselves? Or is that something that you recommend having the client do and that being in the contract? Yeah, you definitely should have the client have the final say like the burden should be on them. But I’m saying it wouldn’t be a bad idea just to help as maybe an add on to try to start familiar, you know, familiarizing yourself with the website and maybe design code. And you could kind of do a first brush of those of doing like a reverse image search.

So maybe if you start having like your first version, right, send that, you know, do a draft of it, put it up into Google and do a reverse image search and see what comes up because you might be like, oh, there’s something exactly like that. And the thing with trademarks is that you don’t just have to worry about what’s a registered trademark. You also have to be concerned with what we call common law trademarks.

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So these are people using these marks in in common law, they’re using them out in the real world to sell stuff. And even if they haven’t registered it, if they have priority use, they have some rights. And if someone goes to trademark something, they can go and oppose their mark, they can cancel their mark and say, we’ve been here first.

And we’re actually going to start our trademark application now. Or even after you’ve gotten a registration in the first five years, they can be collaterally attacked by someone who said, you didn’t do a good enough search. We’ve been here way longer than you have, even though we haven’t registered our mark, and we’ve got a budget and proof that we’ve been using it.

And so cancel your mark, or we’re going to come after you and sue you. And so, and so that’s why searches are so important, right? And so when people tell me of like, oh, I looked it up, and I didn’t see anything, or I think I’m fine. I’m like, there, it’s a lot more than you think.

And there’s bigger risks than what you think, because you really need to have both parts common law search and a trademark search, which that’s what a comprehensive search with a trademark attorney would do. And that’s a package that’s going to use those and usually like searching on a private database that will look at things like LLC filings and state trademarks and social media handles and domain names and really dig into all that stuff to try to see is there anyone else using stuff that’s really close to this just out in the world that’s selling something though. Wow.

Okay. So there’s, there’s, this is why I guess in the contract, you really need to specify that you’re not, you’re not a trademark attorney, you know, as a designer, you that this is, you’ve done initial searches, but the responsibility, if this is, is fails in the end is not yours. It’s the clients.

And that really you need to have that framework there. And if they need to redo the logo, they’re going to need to repay. They’re going to need to do it.

Yeah. I fact, I don’t even think I would mention in the contract that you were going to do any searching. That’s just something I would do just to help yourself just to be like, yeah, just so you don’t waste your time, you know? But I would not take on that legal burden of even doing any searching unless it’s something you feel really comfortable with.

And you know, yeah, that you’ve done after a while. And there are some videos on the trademark website. I’d say they’re okay because they just redid the search database.

There’s not a lot of information about it. I’m starting to put out some resources on how to search and do your own search. And so, you know, follow me on my YouTube channel and that’s where I’ll be putting any resources I have about like, here’s how you do searches or how to use field tags and kind of get better at using this database.

Because there are a lot of people who’d like to use it and would just want to know, okay, what, how are you supposed to do this? Right. As a, as a non-attorney. So, yeah.

(32:15 – 35:14)
Totally. No, this is super helpful. I really appreciate that.

And I will link to your YouTube channel and the show notes too. So now I have a question that’s kind of aligned this, which a student of mine ran into recently where they were trying to come up with their business name and they found somebody that was similar. They were in New York, but they were going to be moving to Florida.

And in Florida, the name was, they was already there registered, but they couldn’t tell if they were still in business or not, but they had, they were in the creative field. So, so like, as an example, I’m not going to give their specific name because for privacy, but like for mine, so Principium studio. So let’s say in Washington state, if there was another company that was Principium creatives, like, and they both were design related, what advice would you have for the person who’s coming second? Yeah.

Yeah, probably. Safest course is pick a new name, especially if you’re like, Hey, you know, we’re, we’re moving, we’re resetting in terms of, especially if you’re earlier in your career and the risks are lower, right. In terms of your investment you’re that’s going to be the least drama.

That’s going to be the most drama free action. If you do some more digging and it doesn’t look like they’re active, you know I always like to check, you know, it’s not that, it’s not that hard to throw up a website. Right.

So that doesn’t mean as much anymore, but check their social media, like check to see, are they, have they posted recently? Like, does it look like they’re really having inquiry for work? You can check their LLC database and see, are they still active? Have they renewed, you know, their filing every year? That can be a good hint of whether they’re still an active company or not. And if they are, I would, I would steer clear because I don’t think the juice is worth the squeeze to have a similar name because eventually there’s likely to be some conflict and just for SEO purposes, right. And people finding you, we always need to remember that the, the name and the branding isn’t the thing.

And I know I’m talking to some people who are brand designers who are like, no, it is important. And that’s not the discount. It is incredibly important in terms of telling your story.

And, but you need to remember, it’s a symbol, it’s a flag to rally people to the thing that solves their problem, right? The product or service. But it’s not the thing itself. And so you don’t want to be setting yourself up by using branding that’s problematic or confusing, or that makes people think, is this who you were talking about? Because if someone mentions you to a friend and you get that nice word of mouth referral, you want someone to be able to type in and find you and know this is the company you were talking about.

And if that’s not happening, because there’s too many players, or it’s too common of name, then choose something more unique, right? So that that one touch point can immediately be, be solid and make sure people are having a consistent, you know, relationship with your with your website and your branding and your good work that you’re doing. Great. That’s excellent advice.

Thank you. Okay, so now I have a question about I’m going into the logo world. And this is a very, I don’t know how they get away with this.

(35:14 – 39:49)
And I’d love to hear your take, especially since you’re a trademark attorney, which gets me really excited. So platforms like Canva, and now Vistaprint is is being very, they’re advertising about how you just have to go on their site and you choose an icon and fonts and voila, you have a logo. How can how can they justify having like all the all these people coming there and then they’re using what could be the exact same icon for many different companies, right? In their terms of service saying you are responsible for all the content, you know, they have wide UGC language, basically, it’s like this is user generated content, we are just we’re just a printing service, we are just a, you know, a third party intermediary, and that they have their DMCA language, which says like, Hey, if you find there’s content on our website, that’s infringing your copyright, come and tell us and we’ll take it down.

And then someone can file a counter notice. And if they do that, they’re pretty safe. And they’re really pretty safe from infringement.

And they’re as much as that’s not that’s a bad idea, which is to do a logo without any searching and to see you know, for you to take the Starbucks logo and be like, Oh, I’m going to change some flourish in her hair and then run with that. No, that’s a bad idea would not would not recommend, just like I wouldn’t recommend doing Starbucks with the Z on the end. But if you go on the trademark search and search for Starbucks, at the end, it’ll come up with zero search results, right? So it’ll give you a false sense of confidence.

And sometimes these websites are the same thing, they give you a false sense of confidence, because they’ll let you print stuff, they’ll let you, you know, do merch, even like a lot of print on demand websites, right? Like Teespring and society six and bonfire, like they try, but they don’t have the manpower right to check to see if you’re printing stuff that’s licensed material from someone else. At the end of the day, that’s your responsibility as a brand owner, because if you start to use that, or sell things under that, you are at risk of committing infringement, and you can get that cease and desist right at any time. And those letters can range from knock it off, we’re mad at you and you have 30 days to rebrand, or knock it off, we want to see your sales receipts, we think that you’ve been stealing our sales.

And we think that you maybe even have done it willfully, and we’re asking for damages. And so you know, these can be very serious reports, right? To you know, you could get whole accounts have been shut down, right? Because you can imagine, especially if you’re on a platform, Instagram, and Facebook and Etsy, they are going to protect their own back, not you. And so if you are using that branding on there, and they get an infringement report, not only can they pull those off or pull those ads down, or what they can full on deactivate your account, they can shut it down.

And it doesn’t have to be fair, they don’t have to give you another chance to tell your story or to be like to prove it or whatever. They can just be like, no juice isn’t worth the squeeze. And we don’t have the manpower to like, you know, even to listen to your side of the story, you’re just done.

And so just know that there are there’s some serious risks to going that way. And to having branding that’s not going to be unique. And that’s certainly taking advantage and infringing on other people’s marks that they’re having to do.

So that’s just up to you as someone is a creative in the industry, to me making sure that you’re doing your due diligence and serving your clients well that you’re and you know, doing a little educating to which that can help in the process of like, hey, client, here’s a reason why you want to work with a real designer, because we are going to be looking and checking and again, not saying that you’re going to the legal level of trademark search. But you know, we really try to come with unique perspective and making sure that at least especially within your competitors that we’re not using things that are going to be too confusingly similar. And they’re going to put you at risk of infringing and going on their toes.

So great. Now, that’s excellent. And it’s a very like you said, it’s a really good selling point for professional designers, because that’s the point that I was like, this is like real insult here, you know, so they’re like, No, I went in Canva, my niece came up with something.

And you know what, if you have a client who insists that that’s the same, and why why should they hire you? Let them go honestly, you know, and I know that’s a privileged thing to say, if you have enough work, but like, if someone doesn’t realize the difference between a real designer who works in, you know, Adobe Creative Programs, who’s, who’s changing serifs and turns and, you know, in font between someone who’s on Canva, then they’re not going to understand and appreciate their value. And they’re always going to undercut you, they’re always going to be asking for more, or trying to commoditize you or get you a discount. And they’re going to be they’re one of those vampire clients, right? And they’re just not worth it.

(39:50 – 51:14)
Beautifully said, thank you. So I just have two more questions. I know I could just literally just pick your brain all day.

I love talking to you about this subject. But I wanted to ask, back to when we were talking about the contracts, and when something goes wrong, like, there was a situation where a client of mine, it was going really well. And then they just basically ghosted me for months.

And it took some intense emails, like threatening going to collections to get them to pay that final payment. Do you have any advice on what’s the right steps to take when something like that happens? And I’ve, I’ve seen that with other, other designers, where they’re just like, Oh, gosh, this client will not answer, they will not pay, I’ve delivered the final thing. It’s so frustrating.

Yeah, for sure. So and I do, I have a list of like eight types of vampire clients. And that’s one of them is the ghoster for sure.

And it’s like, it was disappear, right? Yeah. So some things you could do are, you know, a little bit review, we already talked about having payment milestones will protect you there. Also, not delivering, you know, not not sending over the final deliverables, at least in the final format, and a nice EPS, polished, full res file, until they paid, right, because that keeps them honest and incentivized, because they’ll, they’ll want to pay so that they can get what they need to.

So even if they like, start, you know, screeching at you or whatever, but you need to have that language in the contract that you can do that, right, that you that find delivery is predicated upon full payment, and making sure you have that. So the other thing, you can have some language in your contract that says, Hey, if I if we have this amount of time, and I don’t hear from you, or there’s no communication, that we assume that we’ve gone into kind of contract termination territory, right? And that full that, you know, expedites that full payment is done, and basically kind of gets us into this territory, right? Or that you can, that you can ask for full collection of fees. And so that can kind of help you go into that territory.

And you can remind the client of that of like, Hey, we’ve been having some hard time connecting over this, I just want to remind you that per our contract, right, so nice to be able to come. Again, it makes the contract the bad guy instead of you, you’re on you’re like, I wish I could be nicer, but this is the contract. And here’s the thing, you always can be nicer, right? Because it’s your business, and you’re the boss.

And that’s the great and, you know, challenging thing about working for yourself, right? But it’s so much better and more feasible to show up with that kind of energy to be nice to wave off a late fee or wave off, you know, a rush fee or something than to do the opposite way. If you’re if you come off nice as a people pleaser, and then try to enforce and put in boundaries, people will get very upset and very angry and feel like they’ve been cheated. And they will have a very different reaction.

And the will be very different in the relationship. And so it’s better to come off strong, here are clear boundaries. And then if you want to bibbidi bobbidi boo, you know, wave your business magic one, and back it off, and you can be easier, right with it.

So um, but I think like you said, you know, having a very firm but civil email, and discontinuing that communication, remind them, here’s what I need from you. This is what’s due, highlight the term of the contract or copy it or, you know, do a screenshot. And this is what we agreed to, this is the final payment.

It’s due by this timeline, give them a date of when you need to see this, or there will be a late fee of this, or we will start this or you know, we reserve the rights to go and enforce all of our legal rights, make sure they know what’s the penalty for not meeting that. And then if that doesn’t get you anywhere, then you can kind of explore maybe hiring attorney to do a more formal demand letter. You know, you can send those on your own.

But to speaking once from attorneys are usually taken more seriously, right? Sometimes all I have to be be done is just cc’d on those emails, right? And as soon as someone sees britney at retell law firm calm, like it’s amazing, but they find the check they they find that invoice and they pay it. And so you know, sometimes that that that little bit of heat can change right and can get people to find that money and finally close out the deal. So oh, that’s great tips.

Thank you. And and so the last thing I have a question on is what are your thoughts on AI in the creative world? That’s something I like to throw at guests and just get your take before we wrap up because it’s a hot topic. It is a hot topic, right? Yeah, I think it’s I mean, it’s super fascinating.

Obviously, we’ve had a lot of talks, you know, this last year about open AI and chat GPT and mid journey and just how it’s going to change. And is it coming for all of our jobs are going to replace us, you know, I’m, you know, kind of naturally pretty positive person. And so I’m a little bullish and hopeful.

And I think AI is going to do some cool things. And I think it could be used as a tool. I don’t think it’s coming from my job yet.

I think there will it will impact my job just like many other people who are in data and especially clerical and I think it honestly, and I’m using it as part of my practice because I do a lot of flat fee billing. And so I’m incentivized to use software and tools to do it faster and easier and more efficient for my clients, because I get to see that value, right? As opposed to a lot of traditional attorneys when they bill by the hour, one incentive, do they have to go any faster? They don’t, right? And so they don’t. And the job takes as long as it needs to.

So but in terms of in the creative field, specifically, I think, you know, there’s been some a lot of talk about whether you have to disclose whether you’re using AI, and there’s no legal requirement yet. However, I think, in terms of developing a good relationship, and to be transparent and to have trust with your audience, I don’t think it’s a bad idea to be transparent that you might be using AI or generative AI as part of a tool, you know, in creating or editing things. And so that can be something that’s in your that’s in your contract.

Actually, I have a I’m gonna I have a clause that I’m going to release soon of like, here’s the language you can add to like your website as part of your contract. So look for that. Make sure you’re following me on social media, because I was I had a big AI conversation with someone and we were like, Oh, we should release a little freebie on that.

So I’m going to release a freebie on that. So but that way, you know, people understand that that’s being used in the background. But I don’t think you know, there’s still any replacement for the creative human mind.

And I think that it’ll be really important as if we get cheaper and cheaper production through AI, then that means that we’re going to value the curation of that the editing of that of who takes all that, you know, crazy art, and then narrows it down or who draws from other influences, because the limit of AI is it can only be go from the data sets that it’s trained on, right? You know, if it’s only trained on existing art, then it’s limited by existing art, and it’s not going to be able to maybe do new things that you can see, right? It’s like kind of the same thing as copycats or people who rip you off. They can rip you off. And that really hurts as a creative, right? It’s a sucker punch.

But they can only do what you’ve already done. They can only live on your coattails on your fumes, right? They can’t see what you can see, because that’s not their gift, right? And so, in a way, that’s, I think, what we as creatives should really hone down on and making sure that we’re trying to be imaginative and owning our human creativity and what’s unique about that perspective. And that’s going to make it harder and more valuable in the future versus the cheaper side of content production.

So, you know, I think it’ll come for some parts of our jobs or maybe the crummy jobs that not a lot of people like, but there will still be opportunity for a creative mind. And on the legal side, it’ll be really interesting, because right now, if it’s created by AI, it is not eligible for copyright protection, which means you can’t license something, which means that’s the whole bedrock of the education and entertainment industry, right? And there was a case last year that someone created a whole graphic novel and with AI and they registered, they, you know, applied to register the copyright and it got registered. And then they were kind of gloating about it, like, oh, hey, all these pictures were created by, you know, AI.

And so the copyright office came and snatched it back. And they’re like, and they put it into their rules that say, hey, if it’s created by a non-human, it’s not eligible for copyright protection. So there’s actually a famous case where a gorilla accidentally got a photographer’s camera and took a picture of himself, a selfie, and it was not eligible for copyright protection because a photographer didn’t take that picture, the gorilla did, and that’s a non-human, right? And so it’s kind of a wild case.

And I think that the law will have to develop of like, well, what does it mean then if we use AI, but it’s not all AI, right? We use that to take out the blur or to adjust the lighting or, you know, I read the MPA, the Motion Picture Association, which is kind of like the lobby group for the Hollywood. And they wrote a really interesting letter saying like, hey, we need to be careful because we’re going to be using AI for a lot of our post-production stuff. And this does not mean that this was created by AI.

We’re just using it, like we’re using it to age characters or to change eye color or hair color or to, you know, do some cool filters and effects. And that’s more normal of the type of things that we’re used to doing in movies. And that doesn’t change anything about their legal rights and standing.

So I think we’re going to have to see some law of like, well, is there a substantiality test or is there almost like a fair use test of how much AI can you do? And then what data sets can AI use on? If they do, do they have to compensate, right? Do they have to get a license to use all of Getty Images or to use all of the books? And that’s what like the Directors Writers Guild and a couple other trade industry groups are suing on, right? Even the New York Times now, because they’re like, hey, you’re using all of our information. The only reason AI is so good is because they’re using all of our work for free and they’re not compensating us or any of the work and the artists and the creatives who went into it. So interesting stuff, for sure.

Wow, this perspective is wonderful. I haven’t ever gone that deep from that standpoint of illegal aspects and those examples. So thank you very much for bringing that to the table with this, the AI conversation.

You’re welcome. I think it’s super interesting. And so, you know, the courts will be slow, right, as courts are, and that’s the law is way slower than the tech will be.

And so I think some of it will have to be a little bit of kind of stumbling around in the dark as we’re all trying to figure it out. And then also remembering, yeah, what are the limits of AI? And then, you know, how can we, I like to think of a lot of tech as how can I ride that wave rather than get crushed by it, right? And as someone who’s in this industry, I don’t want to get crushed by AI and wake up to find that I’m being replaced by software. But I want to make sure how can I incorporate that into it? How can I develop and pair that with the best parts of my human brain? And that way is how I can add value and serve my clients and make myself, you know, more irreplaceable in terms of where my lens is in the industry.

So beautifully put. Well, Brittany, this has been such an insightful conversation. I am just I can’t wait to relisten myself and really, you know, pick out those those valuable points, because, man, it’s this the legal side of thing, we can’t have a business without it and dealing with inner, inner relations with clients is, it can be touchy and having those points in place is so so crucial.

So thank you for for bringing everything you brought today. And I please tell everyone, all the listeners where they can find you. I will obviously link in the show notes, but please, I would love to.

Sure. Yeah. So I’m Brittany Rattel.

And all the places online. I love to hang out on Instagram. I’m like Ariel, I want to be where my creatives are.

And my creative Instagram. So that’s where I love to hang out. And I love to connect with people there.

(51:14 – 54:25)
And then I’ve got a YouTube channel. As I mentioned, I also have a podcast called Creative Council. It’s on hiatus right now, but we’re going to be starting up in a couple weeks with a new season.

And so if you like to get deep dives into copyright versus trademark, which we didn’t really cover in that enough enough today, there wasn’t time enough, but like I get digging into that and registering your copyrights is something I really wish a lot of creators would understand more because it gives you some better enforcement options. And so I have a lot more resources about that. And then I also have a website, as I mentioned, a template shop called Creative Contracts that you can get things like the website bundle that you probably need for the footer of your website, right? You probably have seen what you’re supposed to have stuff for that.

And this is also could be a really helpful add on to you that are in web design work is to not only make sure that you have it for your website, but to prompt your client, Hey, we’re finishing your website. Just a reminder, I don’t provide these, but you really should make sure you have your legal documents and the footer. Here’s a website.

And so sign up to be an affiliate and then get a piece of that sale, right? Make it a win, win that you’re giving a solution to your clients. You make sure they do it. And then, you know, you can even decide if you want to help them out, help them install it, even though it’s not that hard, but we know clients, right? Sometimes they make stuff harder than it needs to be.

So, but I’ve got a lot of great templates on there, or say you just start hiring an assistant to help you with your work and assistant designer, hand them an independent contractor agreement, right. And make sure that all that cool stuff that they’re doing client work is being transferred to you so that you can then take all those rights and sell them to the client. So we always want to make sure that, you know, those are really clear those relationships or like get a good client surface agreement, like what I mentioned.

So, and then we’ll put in the show notes, but like that legally legit checklist I talked about, you can get it, get legit with brit.com. And so if you’re on the go and you’re like, wait, what was that website again? I try to make it fun for you to remember. So yeah, get legit with brit.com. And that’s where you can get that checklist and we’ll take you step by step through kind of my framework of getting your modern business, your freelance business legally legit. Beautiful.

Okay. Awesome. Well, thank you so much again, Brittany.

It’s been a pleasure and to everyone have a great rest of your day. Thanks so much for having me. Thank you.

Thank you so much for listening to this episode of Earning by Design. If you found value today, I would be incredibly grateful if you could leave a review on your favorite podcast platform. Your feedback not only helps this podcast to grow, but it also helps to get in front of more designers who need help too.

So thank you sincerely for being here and for more resources to help you succeed in the world of design, please visit forthecreatives.com. That’s the number four, thecreatives.com. We offer a variety of courses, programs, and free resources, all tailored to enhance your design skills and your business knowledge. Also be sure to follow me on Instagram at for the creatives for more updates and tips. And if you haven’t already joined my growing community of over a hundred thousand subscribers on the, for the creatives YouTube channel that has more content, all designed to fuel your creativity and your professional growth until next time, keep creating, keep exploring and continue to push the boundaries of your own creative journey.

(54:25 – 54:28)
I’ll be here to guide and inspire you every step of the way.

Listen to this podcast episode on…

How can graphic designers navigate the complexities of graphic design copyright laws to protect their creative work?

In this episode, I had the privilege of speaking with a very knowledgable trademark small business attorney who shed a ton of light on some common legal questions I hear often from graphic designers.

Our conversation included:

  • Detailed explanation of the key elements that should be included in every contract between a graphic designer and their client.
  • A very good and simple explanation of what an LLC is compared to Sole Proprietorship and who should have which.
  • How to avoid getting in trouble legally as a designer for work you have created.
  • Advice for designing logos that avoid legal issues when clients seek to trademark them.
  • How to trademark your client’s logo and what you should put in your contract regarding this.
  • What steps you should take to register your business name if a similar name already exists.
  • The legal considerations for clients intending to use logos created with platforms like Canva, especially in regards to copyright and commercial use.
  • What to do when a client completely ghosts you when they owe you money.

About Brittany Ratelle: 

Brittany is a small business attorney who helps modern entrepreneurs get legally legit. She has helped hundreds of founders protect and grow their brands without getting overwhelmed (or bored) and has worked with the Bucket List Family, Hope Scope, Blogilates, Sharon Says So, Glo Atanmo, Not Enough Nelsons, Dayna Bolden, Emma Arletta, Cake by Courtney, Brianna Battles, and Tracy Litt. Brittany lives with her hunky husband and four kiddos in her beautiful hometown of Coeur d’Alene, Idaho but supports and educates creatives and creators all over the US with a mix of fun and accessible legal resources.

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Additional notes and links mentioned in this episode

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