SPI 609: Useful Legal Tips for the New Entrepreneur from My Attorney, Mark Stansbury

SPI 609: Useful Legal Tips for the New Entrepreneur from My Attorney, Mark Stansbury

Mark Stansbury: This is often lost when you get a cease and desist from big corporate company and seems nasty. The rule of trademarks is if they don’t enforce it, they stand to lose their trademark. And so they actually have to do something to enforce it, which includes sending out cease and desist and sometimes filing lawsuits.

And so if you get one of those, it’s not necessarily that they’re nasty lawyers, although they might also be nasty lawyers, but they have to do it.

Pat Flynn: That is Mark Stansbury, he’s actually my attorney, who’s been helping me with my business for a number of years now. And I wanted to bring him on the show to take the things that we often think about when it comes to like the legal things of starting our business that are often complicated, overwhelming, scary, and make them easy to understand.

We talk about things like trademarking and incorporation. When is the right time to incorporate your business? And how would you go about doing that? What about trademarking a name? What if somebody else has a name that you’re interested in using, and can you change it slightly? What about fair use?

Right? That means using other people’s IP, but how much of that is okay, right? Can you use up to 30 seconds, 15 seconds of somebody else’s video instead of your podcast or in your own YouTube videos? How does that work? What if somebody uses your stuff? What might you do in that regard? What if you’re like me and somebody takes your courses and sells it on another website for much cheaper.

What kind of legal things can you take action on and how might you go about solving that problem? That, and more we’re gonna talk about today with again, Mark Stansbury. You can find him at StansburyWeaver.com. He’s got a load of information just to brain dump on you. And again, not in an overwhelming kind of way.

I’m hoping that this episode becomes sort of a, you know, like a pillar for us to like, Hey, if you’re starting a business, make sure to listen to this episode because this is going to help you as you’re getting started. Make sense of a lot of the stuff that can often seem very, very confusing. This is session 609 of the Smart Passive Income podcast.

Thank you for listing. Enjoy this is Mark Stansbury, my attorney.

Announcer: Welcome to the Smart Passive Income Podcast, where it’s all about working hard now, so you can sit back and reap the benefits later. And now your host, he once hit record on his camera and threw up because he was so nervous. Pat Flynn.

Pat Flynn: Mark welcome to the Smart Passive Income podcast.

Thanks so much for joining me, my man.

Mark Stansbury: Great to see you, Pat. It’s good to be on. Thanks for having me.

Pat Flynn: Yeah. This will be a lot of fun. You know, a lot of people, and I mentioned this in the intro, a lot of people have certain thought about working with attorneys and lawyers and such, but it’s just such a, been a great experience to work with you.

And I’ve always felt like you’ve been in me and Matt’s corner with our businesses and helping us out and also a friend. And so all that to say, there are great attorneys out there you are one of them. And I wanna, you know, ask you a little bit about your background, but mostly get into some scenarios that our listeners might get themselves into and sort of from an attorney’s perspective, like, well, what do we do?

Or what direction should we take? So we’ll get into that, but tell me how you got into being a lawyer, an attorney, and especially helping people like us.

Mark Stansbury: Yeah, it’s funny. I, I don’t actually really know the answer to that other than I think in like third grade, I said I was gonna be a lawyer. My dad’s a lawyer, so I probably just said I’m gonna be a lawyer.

And then I got a lot of pats on the head. I know, like in high school girlfriend’s moms always thought it was great and dad’s always thought it was great when I said I’m gonna grow up and be a lawyer. Okay, passes the initial test for the, the boyfriend test. So I, you know, I stuck with it through lots of pats on the head. Got myself into it and then sort of looked around and was like, how did I get here?

And what am I doing? And that kind of led to, so the way that our firm has rethought the practice of law and the way that we engage with our clients and that kind of thing, which, you know, we can get into if we have some time for that. But yeah, it’s been an interesting journey, you know, since I started practicing on my own in, I dunno, a little over a decade ago, I’ve been building a firm.

And so that’s been an interesting journey as well, kind of being an entrepreneur, myself, wearing that hat, while serving entrepreneurs.

Pat Flynn: Right. Right. What is the thing that makes your firm sort of unique? You had sort of lightly touched on that, but I’d love for you to just kind of explain that a little bit.

Mark Stansbury: Our primary model is we don’t do any hourly billing. As you know, we don’t bill our clients hourly. We have a subscription model, so clients pay us a monthly amount and that covers a full scope of needs. It varies depending on what the client needs, but, you know, basically it’s, unmetered communication, our advice contractor review, and that kind of thing.

Acting as if we were general counsel inside the firm. You occasionally see this with fractional CFOs. It’s sort of like a fractional general counsel, but you get our entire team, all of our tools and software, years of experience and so on all combined.

Pat Flynn: It’s been really a blessing to work with you and your team and to get access to everybody.

You know, we’ll have things like contracts come in and we’ll just be like, Hey guys, can you take a look at this and make sure it’s okay. And you’ll point out some red flags or questions and stuff. We have other things like things from trademark to just, we’ll get a season desist letter for something, and you’re always there or have at least somebody in your corner there for us, which is really great.

So you wanna check ’em out StansburyWeaver.com and again, link in the description and show notes and all that kind of stuff. But let’s talk about some scenarios and then we’ll get more into, you know, I’ll remind people where to go at the end, but I do wanna get into some scenarios and, and situations that are very common for us entrepreneurs to go through.

This is probably the first thing that people think about when they’re starting. I remember I thought about this, you know, I had started my architectural business, helping people pass an architectural exam in 2008. And then somebody was like, Pat, are you an LLC, or an S Corp? And I was like, I don’t even know what that means.

What, what should I be doing? They were like, you better look this up because you need to protect yourself. And there’s some tax situations that go along with that. The question is when is the best time to incorporate your business and start thinking about it? Do we make money first and then do that?

Or do we do it before even getting a website? I think it just, this just confuses a lot of people and then they don’t do anything and that’s not good.

Mark Stansbury: Yeah. So my general recommendation on this and, and, you know, at the onset of, let me say the caveat that exceptions always apply. You know, lawyers are very famous for there’s exceptions to exceptions, to exceptions, and, you know, and the law has to cover basically everything that humans do.

And so. That creates a lot of exceptions. So that’s just a, a caveat that blankets everything, but in the overwhelming majority of cases, particularly for people who are listening to your podcasts, who are trying to hustle up something, doing a side project or starting something new as entrepreneurs, the best vet is to set up an, a limited liability company, an LLC, as soon as you can, it really isn’t that cost prohibitive to set it up.

I think California’s the most expensive where it’s about 800 bucks, but in most states, You know, we’re in Columbus, Ohio here, it’s $99 to set up and you can do that on your own. If you’re a solo, it’s not too hard. There is additional documentation, like an operating agreement you should have if you have partners, but as a solo, most people don’t even bother with that.

And then you can get your tax ID from the IRS and go through that process through their website, which is from by IRS standards, user friendly. And it’s not too bad. And there are a lot of services that charge for getting your tax ID, but it’s not worth paying for them cuz they just go through the site for you.

So you can do that. And you’re up and running for, you know, a hundred or a couple hundred bucks and you have a company to work through. If you feel like you’re maybe just testing something out and you really don’t know if it’s gonna take off, there’s certainly a lot of sort of walking dead entities of people who’ve done that and then just walked away from their company in that case, maybe wait until you have at least a little bit of revenue, but certainly once you have revenue coming in or once you’ve hired an employee or a contractor who’s gonna say, create IP for you or work on your behalf you should absolutely have an entity set up at that point.

Pat Flynn: Awesome. The next question that often happens with that is okay, well, I’m gonna set up my entity. Cool. But I have to now pick a name for it. My business is gonna have a name.

Should I, in addition to incorporating now file a trademark for a name and what’s the process of that? How does that work?

Mark Stansbury: Yeah, so the, the trademark, you can wait a little longer on. It really depends on how much traction you’re getting for the name and whether the brand is worth protecting. And it’s gonna take a little while to find that out.

And you also, you cannot actually get a trademark until you’ve been in commerce offering your product or service. So you have to actually have it. It has to be an interstate commerce. You know, most of your listeners are starting digital companies stuff online that automatically crosses state lines becomes a federal issue.

And so you can get a federal trademark and there are state trademarks that are a very limited use. So we generally don’t recommend people do those, what you can do if, if you’re very confident in the name and that you want use it and protect it going forward as you can file an intent to use application with the us patent and trademark office, and then renew that every six months for two years until you’re actually in commerce and you can show sales using that trademark, or service mark. And then when, once you get the actual registration through, it’ll go back to the date where you file the intent to use. So you can get that protection, but it really doesn’t become effective until you’re actually using it and generating revenue in commerce.

Pat Flynn: Let’s just hypothetically say a person is going to start a podcast and they have a name for the podcast, but then you see somebody else who’s using the same name elsewhere. What do we have to think about with regards to us and intellectual property and all that kind of stuff and making sure we’re not, you know, infringing on other people’s stuff.

And you know, it’s not just about us protecting what we have, but other people have protected theirs. How do we make sure we don’t infringe on, on their stuff?

Mark Stansbury: Great question. So something that happens more and more often as more and more stuff goes online and people are starting things up, certainly if someone else is using it and it’s, the name is squarely the same and you get you’re offering basically the same services or content you should steer clear of that.

If they aren’t registered, if it’s not registered as a federal trademark, you, you know, you may be able to get some leeway to use it. And, but you’re ultimately gonna get into a fight down the road. So really you wanna avoid it if it’s obvious. Where it gets a little more tricky is where it’s not obvious.

And so we recommend, you know, maybe self servingly, but we recommend talking to a lawyer before getting a trademark and running a knockout search and just checking to make sure that someone’s not using the name or something close enough that it might cause confusion. So the key with trademarks is the us Patent and Trademark office will look at whether a trademark would be confusing to consumers.

You know? So if you see a trademark, do you think it’s coming from some other company. Can you identify the source of goods or services. And so if it doesn’t have to be directly on point, it could just be close enough to be confusing. That’s the government’s concern, but then individuals and organizations that have their own trademarks wanna protect their marks.

And so they’ll protect them expansively, you know, depending on who they are. Apple, for example is very famous. We’ve had some clients get ceased desist from Apple, for things that seem sort of absurd, but they have the clout to push around small entrepreneurs is just a reality of small business, being a startup or a solo entrepreneur, you kind of gotta deal with that reality in addition to the, the weight of the federal government.

Yeah. So run a search, make sure no one is using the mark. No one’s using anything close and then file for the intent to use application or if you’re actually using it in actual application to register the trademark at the point.

Pat Flynn: Got it. Let’s say that I have an idea for a title of something, a course or a book, and it’s Smarter Passive Income.

But I go out there and I see somebody also has already Smart Passive Income, or let’s say, I wanna name something and that name’s already taken, but like, can I just change the name a little bit from like, can somebody create Smarter Passive Income and be good with it? I mean, that’s clearly different, but it’s just a couple letters.

I mean, my advice would be don’t even play around with that, but I mean, absolutely. What, what is your perspective on that?

Mark Stansbury: No, I agree with you on that. It’s it’s too close. It’s confusingly similar in trademark language and consumer, who’s just scrolling through podcast titles sees the two of them would be inclined to think that they’re related.

You know, that’s your spinoff podcast that you made after this one, you know, that’s the follow up, it’s got some extra take or whatever, and it’s related to the same brand. The test is not, if someone spends five hours researching it, can they determine whether it’s a different company it’s, you know, on the, on its face, does it look like this is from the same place?

And so if it looks like, Hey, this is probably from SPI may or may not actually be, but if it’s confusing, the trademark’s not gonna go through. Or if it happens to go through cuz the examiners are human beings and sometimes they let things through that maybe they shouldn’t, it’s gonna end up in litigation later anyway. So if, if it’s confusingly similar, where that line is drawn is different in every case, it’s very much, there’s a lot of gray area there, but in general, better to be cautious unless a lot of potential headaches. Yeah, yeah, yeah, exactly. Avoid the headaches. Unless you have a war chest set aside for fighting over it better to avoid those headaches and pick a name that’s a little more wide open and available.

Pat Flynn: Final question on name and trademark and things. Cuz again, I get a ton of questions about that and thank you again for being here as a resource for us, but let’s say that I am a fan of Lego. I wanna create a Lego YouTube channel. I’m gonna call it the Lego Fan Channel. Is that okay? I, I see Lego channels. They have Lego in the channel already, and they’re obviously not by Lego. So my thought is, Hey, I guess Lego’s cool with it, but I am using their name in a YouTube channel. Is that cool or not cool.

Mark Stansbury: So it does carry some risk. Certainly Lego could start cracking down on those things. And if it gives the impression that it was approved by Lego or that the brand was licensed to that channel to be an official, you know, sponsor or whatnot, Lego could, could enforce that.

But the reality is that most brands are savvy enough now that they don’t want to. You did see a lot more of that kind of maybe 20 years ago in early internet days when brands were just like, what is this internet thing? And why are they using our name here? But now if it’s a fan channel brands don’t wanna shut that down.

And so they’ll let you talk about it for the most part, but just be aware that you’re like putting similar to putting content on, say Facebook or whatever, you’re just renting that brand. You’re renting that platform. You’re renting the IP that you’re using there. You don’t own it and they could crack down, try and force you to stop at any point. So, you know, there’s some risk and, and I, I should also say that sometimes it’s explicit where brands will say you’re, you are able to use our branding for these specific purposes. And that’s made public that you’re allowed to do that. You obviously, you’re gonna run more risk of getting the brands mad if it’s purely negative content.

So if it’s just like a channel about why Legos suck, you should expect to hear from Legos council soon. But if it’s a fan channel they’ve learned to love that stuff and lean into it. I think most brands have. Yeah, not all.

Pat Flynn: You had mentioned a while back companies cracking down. That’s how I got my first cease and desist letter, I was using the trademark Leed, L E E D, which is a exam in the architecture industry in my domain name. I come to find out that it was because other brands, other businesses were actually using them as well and not great resources. And they were confusing. Mine was okay. They were fine with it, but because they had to crack down on those, they had to crack down on all of them.

And I sort of came down with it and I just did a brand name change, and everything worked out in the end.

Mark Stansbury: That’s a really good point though. And this is often lost when you get a cease and desist from big corporate company and seems nasty. The rule of trademarks is if they don’t enforce it, they stand to lose their trademark.

And so they actually have to, to do something to enforce it, which includes sending out cease and desist and sometimes filing lawsuits. And so if you get one of those, it’s not necessarily that they’re nasty lawyers, although they might also be nasty lawyers, but they have to do it. It’s the law. And so there, in order to maintain their brand, there was a lot of this, Xerox back in the day, they would send out and, you know, everyone just uses Xerox, colloquially, not anymore, but they did at one point for making copies and Xerox had to enforce it. And, and even in like the American bar association journal, they would run full page ads that said, don’t call copying Xerox, only use it for our brand. Just to show that they were trying to protect their brand and maintain it so that they didn’t lose it to just, you know, it’s become part of the general language and it’s no longer a protected brand.

Pat Flynn: Yeah. Wow. That’s interesting. Like the, the Kleenex same yeah sort of tissue situation.

That’s really interesting. All right. On using other people’s stuff. I know that in some cases it’s okay. For example, to use a clip from a song or you’re on YouTube and you’re taking a clip from a movie and maybe doing review or, or reaction to it, this is in the realm of what’s called fair use. What is your definition of that?

And if you could help the sort of regular person who doesn’t understand that yet, but like just wants to create good content on YouTube. Like what are the rules, if any, or, or boundaries? I know it is a gray area, but how do we navigate those, those tough waters?

Mark Stansbury: Yeah. Fair uses pretty much entirely gray area.

It is really tricky. Sort of the, the cleanest example of fair use might be like using someone’s content for academic purposes, showing it to a classroom full of students to talk about or something like that, but it becomes less and less protectable as fair use the more and more commercial the usage of it is.

And so if you’re using someone’s content and you’re basically just making money off their content, that’s not gonna be okay. It’s not gonna be fair use. And if you are using it in an academic setting, say that’s okay. And the line is somewhere in between there. And it’s, it’s not kind of case by case. If you are like your example of doing a movie review this sort of circles back to what we were just talking about with trademark, often the studios or the content creators are gonna want that coverage. And so they’re gonna let that go. If it’s genuine coverage. On the other hand, if you are just see this on YouTube, plenty, take a movie, chop it up to 20 pieces and you upload all 20 pieces to YouTube and have them streaming and then, you know, try and get some ad revenue on that, that’s not gonna be okay.

So that’s clear. If you try and add a, you know, you put a watermark or some type of, sort of frivolous commentary at the beginning, or end of it, that’s not gonna cut it either. It’s gotta be substantively transformative. You’re actually using this in a different way. You’re using it to comment on it for education.

Something like that. You’re not just repurposing someone else’s work in order to make money off of it.

Pat Flynn: Yeah. It is definitely gray. And, you know, I will review other people’s YouTube channels or movies or other works of art. And, you know, I just am always trying to make sure, to always include my own opinion on top of that, or educate people on why certain things are the way they are.

If I just kind of like left there then it would be tough. I see a lot of people on YouTube also take music clips from popular songs, and then they play a bit of it and they comment on it. They, they talk about it and then they continue to play it. So essentially the whole song is being played throughout, but it’s chopped up because they’re kind of intervening and actually educational at the same time.

But I know also know other channels who will have a compilation channel, top five pop songs of the summer. Right? And then they put those pop songs on there and it’s like a 30-second clip of each and now their videos demonetized, and they’re getting copyright strikes and, and such which on YouTube, it’s pretty common to see.

And all that means is your YouTube. Video’s not gonna be able to be monetized on your wallet. It’ll be somebody else who owns that license or who owns that music. But it’s just a differently, you know, gray area. What happens, actually this actually happened to me once, I have a blog hired an assistant to write blog post, they captured an image, unfortunately from Google images and popped it onto a blog post.

And then I got a cease and desist letter for that. If that happens to somebody, what actions should they take to protect themselves and not spend a ton of money or go to jail? Or you which is not gonna ha I mean, I don’t know if you’re gonna go to jail, but that’s what I think, you know, I’m just like, you know, I’m gonna sell my house and everything’s ruined, but bring this down to earth for us.

Like what happens in that situation then? What do we do?

Mark Stansbury: Yeah. So the first thing that you should do is assuming that you know, that it was taken improperly, you don’t have a license to use of content. You should take it down immediately. And then you may need to respond. And, you know, if you’ve, if you’re working with a lawyer, circle your lawyer and as soon as possible to help respond, if you’re on your own, you could try and write back and negotiate.

It depends who, who is sending the cease and desist. If it’s from a company that creates the content for its own use, then you might be fine with just a cease and desist. Generally, they just want to take it down. Sort of like the trademark thing. They’re trying to protect their brand. But if it’s from you know, a copyright troll, some of these companies own images say very popular one and just try and track down anyone using it and extract some money. You’d probably be able to negotiate some sort of a settlement. And for the most part, those guys don’t wanna file lawsuits. That’s kind of a pain for them. And they don’t make their money filing lawsuits.

They make their money scaring people. So you can usually negotiate something, you know, or sometimes just walk away and not pay them and it goes away. But the reality is they can file that lawsuit. So that is always gonna be hanging over you. It’s better to resolve that if you can. And that, that actually raises a important point since the way you framed it was, you’ve got an employee or a contractor who pulled this for you and you didn’t do it yourself.

Why should you be responsible for it? If you didn’t pull it. Well, anyone who’s working for you as an agent of yours and you’re responsible for what your agents are doing. And so if they’re doing something within the general scope of their service to you, if it ends up breaking law and fringing someone’s IP say, then you or the company is responsible.

So a great reason to have an entity in place so that the entity’s responsible and not you personally, if someone else is doing it on, on behalf of the company.

Pat Flynn: That did happen to me, and it was from one of those troll companies. And they were asking for an exorbitant amount of money. And so I think they just understood that we were gonna negotiate.

And then we kind of settled on a, on a dollar amount that I just hated paying just to begin with. All that, to say, just make sure you’re not using copyrighted material or infringing on other people’s intellectual property, as much as you can, royalty free as much as possible.

Mark Stansbury: And the, the tools that they have now for tracking that stuff down are very sophisticated.

So it’s not like, you know, this is in 1997. You’re not gonna get away with it indefinitely. They’re gonna find it soon and then they’re gonna make that demand and they do wanna settle those out and get cash easily as opposed to filing a lawsuit. Every so often they’ll follow a suit just to make an example of someone.

Pat Flynn: Yeah. True. What happens if you find that somebody else is using your stuff? I’m curious if somebody let’s just start with that same example. I see my photo on somebody else’s blog and they didn’t ask permission. They ripped it from my own blog and used it in their own or is using it for some other reason.

What can I do or should I do from there?

Mark Stansbury: Assuming you verify that it’s your content and it’s not something that they created that’s similar, then you wanna send them a cease and desist and ask them to take it down. And you may be in the position where you’re demanding damages and sometimes those demands are sort of just a scare of compliance.

And sometimes they’re real. It depends on the situation. Often the problem you run into here is that the worst actors don’t have any way to contact them. They make it very difficult to track them down. Often they’re not located in the United States or any other jurisdiction, that’s gonna be reasonable to litigate in.

And so it can be very hard. And then you have to go to their hosting services or domain registrar and try and shut it down that way. And that can get pretty cumbersome as I, I know you’ve experienced this more than once with courses popping up here and there, and it ends up being kind of like a game of whackamole, right.

You’re just trying to knock ’em down and they keep popping back up. But unfortunately, that sort of becomes a cost of doing business online is if you start creating popular content, people are gonna try and knock it off. And just like the top five songs of the summer makes a YouTube channel and someone’s trying to exploit an artist work there.

The same thing happens to course creators and podcasters and so on, so forth. And. If you’re making content, people want, someone’s gonna try and knock it off and you’re gonna have to try and track them down and shut ’em down as best you can. I also think it’s worth thinking about the person who’s doing the infringing and what is their motive, because one of the things that has we as a firm always look to try and do is see, is there an opportunity to turn this from a saber rattling threat or scorched earth litigation into a business opportunity and maybe the person’s using your content, but they don’t realize that it’s illegal to use the content that don’t own. And either they’d be okay, just paying a licensing fee to use it. In which case, win-win assuming that they’re not, you know, defaming you or the context isn’t bad for your work.

You can get a licensing fee or maybe there’s some sort of partnership that makes sense. And there’s some way to turn it into something positive. And I’ve seen that happen more than once as well. It just, it initially looks bad, but after a conversation, things are fine. Sometimes it results in just a friendly apology and a take down and also, well, and sometimes it turns into a licensing deal or something bigger than that even.

There’s often business solutions to legal problems that are far superior than purely legal tools.

Pat Flynn: Yeah. And thank you for that reminder because probably 90% of the cases where people have ripped off something of me, not the people who have taken the courses and they’re selling it for, you know, 18% the price, but, you know, somebody’s took my blog content and posted on theirs and I’ll reach out to them in a rather friendly, but still stern voice first, just asking them kindly to take it down.

And 90% of the time they do and they apologize. Now, whether they’re truly just not understanding how this works or they were waiting for that and then do first, then ask for forgiveness kind of thing. Fine either way, it’s it usually fixes itself. And I don’t even reach out to you guys about that, but other times it does require more sternness and a cease and desist usually does the job because nobody wants to get into that.

And, and that is usually aggressive enough. I fortunately, haven’t had to go beyond that yet in that regard, but with regards to the online courses for any online courses, creator, I just to reiterate what Mark said, that’s going to happen most likely, especially if what you’re creating is really good.

People told me once, Hey, that you should, you should be proud of that because it’s worth copying. And I was like, it still doesn’t feel good. People are still buying my course at, you know, fractions on the dollar. Right? But we do play whackamole you go to their hosting company and their hosting company will then through a DMC, a tank down is sort of the keyword that you wanna look for.

You’ll be able to have them remove it for you, but then it gets sprung up somewhere else and it just, again, like you said, it becomes this game that we play, but it’s just part of the price of doing business online like you said.

Mark Stansbury: The US Copyright Office in building on some legislation that was passed in 2020, created a copyright claims board that allows for essentially small claims on copyrights for claims that are under $30,000.

And there’s a, and there’s supposed to be fast track than there’s even faster track for claims under $5,000. so the regulations are new on this. The things just rolling out sort of now over the last year. So we’ll see how valuable it ends up being, but it could potentially be an opportunity to bring these claims up, litigate these claims either with an attorney or pro se. So business owners can, and, you know, content creators can represent themselves, which normally you can’t do in court. And the claims are entirely remote, so you don’t have to fly to Washington DC to litigate them or anything like that. So it might be an opportunity to help add a little bit of teeth beyond the cease and desist without having to incur $50,000 of legal fees to do it.

Good call. So we’ll see where that goes, but there’s, there’s potential there to help out, especially with smaller content creators.

Pat Flynn: Love it. Lots of great content here. We’ll keep going with a couple more things that I know people might be interested in, and that is for those who are creating online courses outside of the piracy.

Is there anything that an online course creator needs to know legally before selling their thing? Right, I know there are certain industries where that is obvious, like medical or anything, food related, right. You need to be careful about, you know, what you’re claiming and all that stuff. But even for somebody creating, for example, a course on how to do, I don’t know, knitting and, or, you know, like me even, you know, how to create something on YouTube.

Disclaimers and other things like what, what should we have in place to protect ourselves as much as possible?

Mark Stansbury: Yeah. This is a, a timely question. We were just working on the course creation agreement with SPI and Caleb, like earlier today, you were on YouTube doing a, a session with Caleb.

Pat Flynn: Yeah, that, that was an interesting, unique thing for us, because most of our courses were just built in house with SPI Media being the creators.

And, you know, I’m the sort of video person. But then Caleb came in and we are doing a rev share on this course, cuz he’s. Co creator of this course, and he’s a different company. So we had to come up with a, a contract for that and a deal. And that’s where Mark and his team came in to help with all that, to make sure we all sign the things, and everything’s cool, and we’re all clear. So thank you for that. But just in general, let’s say a solo course, creator. What, what are the things they need to look out for?

Mark Stansbury: The key things is do you own the IP that’s in the course to own the content that you’re putting in there and this sort of circles back to a lot of the things that we’ve been talking about, if you’re including things that, you know, someone else created them and you’re reusing them you need to make sure that you have a license to use those things or that you’re comfortable, that it constitutes fair use. There’s an issue of the, there’s a question of plagiarism that may come up a lot, which to some extent involves content, but it’s, the concerns can be broader than that into ideas.

And it’s, if you’re creating a course on how to create YouTube video, There’s certainly other courses on that that are out there. Are you plagiarizing if you create that, are you blocked from doing that? Cause other people have talked about it. The answer is that you’re not blocked. You can do it. Ideas can’t be protected only the actual substantive instantiation of those ideas.

So the content that the ideas embodied in can be protected. So if someone else is talking about how to create a course or YouTube videos, rather. You can create a course that talks about the same thing and you just put your own spin on it and that’s okay. They can’t block you for just relating those ideas.

Even if you end up sharing many of the same ideas. Now, there could be a question as to are you sharing the same ideas in a very similar way? It becomes a copyright infringement question, but in general, the ideas themselves aren’t protectable. And so you can, you can talk about those. Fortunately, a lot of the issues that you might have around the course around like payments and how do you handle that?

And just like the platforms that you’re on and all that. A lot of it’s been solved by the tools that have come out that have really streamlined operations, you know, Teachable and so on. That will handle a lot of those things for you. Handle affiliate payments for you. That kind of thing. It’s still good to have agreements if you’re gonna work with affiliates or if you’re gonna market it to have agreements in place with the people who are gonna do that.

But you can, again, piggyback on these platforms quite a bit for that stuff. One thing to be very careful of there though, is the rules of the platform itself. So whether it’s Teachable, or if you have stuff you’re putting up on YouTube or wherever, be aware of what the platforms require, and those rules are constantly in flux and if there’s any question that what you’re doing might be on the edge of it, you know, for the most part, there’s not much concern with most content that’s being created, but if the stuff you’re creating is on the edge of what might be permitted, it’s worth double checking to make sure that it’s gonna be okay, checking the rules and maybe end up having to take the risk that it gets taken down.

Pat Flynn: What about disclaimers as far as results that a course could offer? Do we have to say anything about that? You know, the results are not typical and you know, that kind of thing. And, and if so, where do we get that language? Or like, where do we put that?

Mark Stansbury: Yeah, I think it’s always a good idea to have some sort of disclaimer, if you’re gonna be making claims that aren’t entirely standard. You know, I mean, if there’s gonna be outliers, like very successful people following these recommendations are gonna be far and away, more successful than the average person it’s worth stating that and avoiding false advertising claims or, you know, and sort of misleading or, or fraud claims for that matter.

You mentioned food is certainly a lot around there. If you’re putting something out. Claiming that it’s medication, that’s gonna treat some illness. You better be very sure that it’s going to, you need to submit if, if it’s medication, it needs to go through FDA approval and all that. Otherwise you need to have a lot of disclaimers that this is a nutritional supplement say, and it’s not, it’s not medicine.

It hasn’t improved by the FDA. Some of those things, if it’s specific regulatory issue, the exact language that you wanna use can be found in the regulations on the website or just in us government code, administrative code. Or you can just Google it and you’ll probably find it, or at least so help you start your search and track down the exact language.

And, you know, you’d be surprised how much the government requires in terms of labeling. If you’re selling a product, say we had a client we were working with who has a, a chemical is a hazardous chemical that goes into trucks and it was like an engine solvent. So we had to pull language, not only language that was, you know, warnings about keep this away from children and there’s exact language, but also how big do the borders have to be around that language?

How far away do things have to be from those borders to make sure that it stands out and so on. So once you get into regulated stuff, there could be a lot of rules around exactly what you need to say. If it’s more general, less regulated area than just a straightforward plain English disclaimer, would be a great place to start that, you know, as long as you’re being honest about what you’re offering and not misleading people, that’s usually your best bet. You’re usually gonna be okay if you do that. People get in trouble once they try to start overselling what they’re offering and over promising what can be delivered.

Pat Flynn: Makes sense. Let me ask you one more question. A scenario that comes up a lot, especially for the listeners of SPI.

Many of them are podcasters in the interview, other people for their podcast, what are the legal things that we must do to make sure that we are doing everything the way we should. That’s such a blanket question, but meaning like, do we need to have people fill out a form, essentially allowing us to use that content?

What if we end up wanting to next year putting all those podcast interviews in transcripts in a nice little bundle that we sell for $9 or something? Like, how do we make sure that we’re doing the right things when it comes to the podcast interviews. I mean, you’re here on this show right now. What are the standard things?

And, you know, I know some people have contracts to sign and other things, but that sometimes scares people away. Like, oh, you are forcing me to read this 10 page PDF file before coming on the show, like I’m supposed to do you a favor. And now you’re asking me to do something. There’s a lot to it. But anyway, can you give us the rundown on podcast guesting and what might be required to protect ourselves? You know, make sure things are good.

Mark Stansbury: Yeah. So in general, if you’re gonna do, you know, the fairly standard podcast thing where you interview people like you’re doing, and you’re putting it out as a podcast and kind of the extent of it. Someone’s participation in that is consent to use, you know, it’s, it’s gonna be consent to use their appearance on your podcast, their voice, and so on.

If you’re gonna take the content and do what you suggested, like monetize it by bundling it or something that’s when you really want to start getting a little more buttoned up when your contracts with your guests and make sure that you have the right to monetize what they’re doing and repurpose it in a different medium.

So if I’m going on your podcast my expectation is that this is gonna be shared as a podcast and people can download it and listen to it in their podcast players and so on. But my expectation is not that you’re going to chop it up and use snippets of it to create an Instagram account about legal issues for startups and, and content creators.

Right? And so if you start doing that, then I might have a problem. And actually that’d be fine if you did that, you guys would be great at it, but in general, you know, once you start repurposing things, you wanna make sure that you have permission to use person’s image and likeness and personality in any content that may be shared.

So, you know, if I was providing some additional content and video clips or audio or something, wanna make sure you have consent to use that as well. But if it’s straightforward, I wouldn’t sweat it. If it’s an interview that, and, and when I say monetize, you know, if you’re gonna run ads again, that’s to be expected, you’re running ads.

It’s like, okay, that was gonna be my follow up. Yeah. Yeah. It’s it’s to be expected as part of the whole thing. And at this point, everyone who goes on a podcast is on notice that their podcast is interview is going to be available on the internet. And that there are probably going to be ads on either side of it or in the middle of it or wherever.

Pat Flynn: Nice. Think that’s gonna help a lot of people. Mark, thank you so much for coming on today. I’m sure there’s a lot more questions that people might have if they do have questions or wanna work with you again, I think that the fee based attorney team that we get access to has just been incredible. It’s been such a pleasure to work with you and, and team over there.

It’s a great option. So if you wanna check out Mark and, and what he has going on there with his partners and partners, Stansbury Weaver, that’s StansburyWeaver.com. You can check ’em out there, but do you have like a social media account or anything that people can follow you at as well or, or anything like that?

Mark Stansbury: I’m @MarkStansbury on Twitter. I’m trying not to be active on there, but am more than I should be. Okay. That’s about it on social for me. I pretty much live on, on Twitter in the social world, but you can reach out to me there or just shoot me an email. It’s [email protected] is my email address.

So if anyone wants to reach out and say hi, happy to talk and see what we can do to help out.

Pat Flynn: Awesome, man, thank you for your help today. Appreciate it. Thank you for your help over the these years and looking forward to continuing to work with you.

Mark Stansbury: Same. Thanks, Pat. It’s been fun.

Pat Flynn: All right. I hope you enjoyed that conversation with Mark.

As you can see, we talked about a lot of different things, ranging from trademarks and corporations, all the way to partnerships and legal ramifications. What if somebody takes your stuff and uses it? And can you use other people’s stuff? We answered a lot of questions today. I hope this episode was helpful to you.

If you wanna get the links and everything mentioned today, you can go to SmartPassiveIncome.com/session609. Again, SmartPassiveIncome.com/session609. Looking forward to hearing what you think about this one, hit me up @PatFlynn on Twitter. You can also hook up with Mark, @MarkStansbury on Twitter as well.

And again, you can email him [email protected] all the links and everything again mentioned will be right on the show notes page, SmartPassiveIncome.com/session609. Let me know what you think. Thank you so much. I appreciate you. And thank you again, Mark for coming on and looking forward to more great conversations with you in the future.

Cheers, peace out, and I’ll see you all in the next episode. Make sure you subscribe so you don’t miss it. Cheers.

Thanks for listening to the Smart Passive Income Podcast at SmartPassiveIncome.com. I’m your host Pat Flynn. Our senior producer is Sara Jane Hess. Our series producer is David Grabowski. And our executive producer is Matt Gartland. Sound editing by Duncan Brown. The Smart Passive Income Podcast is a production of SPI Media. We’ll catch you in the next session.