How to navigate legal issues as a speaker

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Grant Baldwin: Hey, what’s up friends, it’s Grant Baldwin here and welcome back to The Speaker Lab Podcast. Good to have you here with us today — we’re talking with my friend and attorney Autumn Witt Boyd, and excited to be chatting with her on all things legal for speakers. So Autumn, thanks for joining us. Why don’t you give us a little overview on what it is that you do in the legal world? You’ve been very helpful for us and we’ve come to you for a variety of different things. And so your legal expertise has been very, very valuable here at The Speaker Lab. But give us a snapshot and overview of what you do with entrepreneurs.

Autumn Witt Boyd: Yeah, glad to hear it. So, I am the founder and one of the attorneys at the AWB firm. We work exclusively with online businesses and mostly online course creators — we have a number of clients who are speakers.

We’re full service, so we might help with contracts, we might help with building a team. We might help with resolving a dispute, because those unexpected things can come up the longer you’re in business. I’m an intellectual property lawyer by training, but we try to hit on everything that we can to support our clients.

How To Build A Contract

GB: You do a phenomenal job at that. So anytime we have something come up, I say, “Let’s just ask Autumn. Let’s see what she has to say.” Normally you get us out of trouble. So there’s a lot of different directions we can go here, but let’s start with contracts. This is something that when a speaker books a gig, you’ve got to have a contract. And we always have said “a paper trail is a safe trail.” If you didn’t get it in writing, it didn’t happen. So how should speakers, in general, be thinking about contracts? What should be included? What shouldn’t be included? What’s too much, what’s overkill? What’s the bare minimum?

AWB: Yeah. So first of all, you’re absolutely right and before I get too far in, I’ll give my standard disclaimer, which is I am a lawyer. If you’re listening, I’m not your lawyer. I am Grant’s lawyer. So please take everything that we’re talking about today and realize it’s not legal advice. This is just information to get your wheels turning. If you have specific questions, please reach out to your lawyer.

But to answer your question, you’re absolutely right. I am a huge fan of putting things in writing. Even having one single piece of paper rather than a bunch of emails is even better. As you said, people’s memories can differ, especially if you’re talking through things. So a contract, even if it’s one that you have written that you’re not sure is a hundred percent legally correct, is going to get you probably where you need to go.

I take a proportional view to the legal part of creating contracts.  If you are dealing with a $100,000 speaking gig, that’s really high stakes. You’re probably investing a lot in yourself and they’re investing a lot in you, so you want to have a really good contract. You probably want legal counsel to help you negotiate that. If you’re just getting started, your speaker fees are probably much lower. Maybe you’re just getting paid for your travel or to attend an event – so the risks are much lower. When we look at how complicated or how complete your contract needs to be, that’s kind of how I look at it. When we have clients send us agreements to review, we kind of look at it that same way. Do we wanna spend $5,000 in legal fees on a $250 speaking fee? That makes no sense.

GB: Yeah. Now, what type of things should be included? What are the things that should be left off of a speaker contract?

AWB: Yeah, so the basics are obviously the money — so what are they paying for and if they are paying for travel and things like that, you have to have that spelled out. You know, are they paying for your flights? Are they reimbursing you? Is there a cap? Do you get to fly first class or is it economy? If there’s a hotel, are you being booked at the conference hotel, or can you book yourself wherever? Those specifics are helpful because those are things you might not think about until you’re actually doing the gig. So it’s helpful to talk about, and some of this will just help you go ahead and talk it out with the event host in advance.

The second thing is, what exactly are you doing? Are you providing a talk? Are you attending a party? Are you doing a breakout or a workshop? Be really specific about what exactly you’re doing. They will always ask for more, especially if you’re on site, you can get pulled into things. So if it’s spelled out really clearly, that’s helpful. The thing that I find is forgotten a lot of times is what to do if either side wants to terminate or cancel. What if the event gets canceled? Do you have to give the money back if you’ve already been paid? What if you get sick or you have to cancel for some reason? What if the event is not canceled, but rescheduled? So think through this — and we do have contract templates for a lot of this.

So again, you may not need all of that, especially if it’s smaller. But it’s helpful to think through the worst case scenario and how you would want it to be handled. The last thing I want to mention is intellectual property. I’m an IP lawyer, so you know that you own the rights to your talk. Ideally, if they want to own the rights — we review a lot of these contracts — I generally say that’s not okay unless they’re paying you an awful lot of money. Are they going to record it? Are they going to reuse it? Think through all of that, and if that’s what they want to do, that should be more money, hopefully.

GB: Yeah, I think everything you laid out there is really what we’ve always had in our contracts and it’s just very simple, yet spells things out. Now, one thing I want to go back and touch on there is where you talked about the specificity that you need. Would you say that the more vague and open-ended you leave it, the greater the likelihood for miscommunications or misunderstandings?

I’ll give you a quick example. I remember I went and did a school assembly, and I did a normal 45 minute talk — that’s what I would normally do.

After it, I talked to the person I’d been working with and they were super nice and super helpful and said, “Oh, it was awesome, we loved it.” And so a couple weeks later they send a pretty strong email basically saying, “We had blocked off the school assembly for an hour and a half and you only went for 45 minutes.” And we never discussed it prior to that. So after that we started putting (in contracts) in parentheses “for up to 60 minutes.” And another thing is to really make sure you specify whenever it comes to expenses. Does it mean that if you buy a bottle of water at the airport, you’re paying for that? Or they are? Who is paying for the Uber from the airport? You know, some of these are just like random miscellaneous things. If you were expecting they were going to cover that and they are not expecting that, then it leaves a bad taste in people’s mouth and you don’t want to do that. So the more specific you can be on including those types of things, the better and more clear it is for everyone.

AWB: I was just scrolling through our template to see what else to think about if you do have specific AV needs, like a specific type of presentation equipment or any of that, or if you like to have a stool versus a chair — any of that stuff. Yep. Go ahead and throw that in.

And again, that should be something you’re talking about with the event host. If you do have those requirements. make sure they know that way ahead of time.

Preparing for the Unexpected

GB: Now, one thing you were touching on as well is what happens in the event that something happens and the event can’t happen or you can’t be there or you get sick. We’ve definitely seen this in the past couple of years with COVID. I know pre COVID, I’ve done hundreds and hundreds of paid speaking engagements and an event not happening or some last minute thing was really, really, really rare.

I would always tell speakers, you need to do everything within your power to be there. And so I’ve got some war stories of getting to events to just be there. So what is the general rule with that? Because I think there are two sides to it. There’s the, “what does the contract say?” But then there’s also the practical side of, “Okay, this situation came up. How do I best handle this to potentially preserve a relationship with this client?” So what should the contract say and how do you think when it comes to really enforcing it vs. adding a human element to it?

AWB: Yeah. So I always like the contract and some of this will depend on your bargaining power. If you’re a really big name speaker, you’re going to have a lot of bargaining power and the contract will be written more in your favor. If it’s a really big event and you’re just starting out you’re basically going to have no bargaining power. So keep that in mind.

I like the contract to be written more harshly or more stringently so that you do have an out if you get sick or you have an emergency or something like that. Now that may be a negotiating point that the host wants to have some sort of say in, like they get their money back or you have to provide a replacement. I’ve seen this go a couple ways, and if you’re working with an agency, often they will provide a replacement.

But I’ve seen it go both ways, so that is just going to depend, in this day and age, if you are physically unable to get there, but maybe you can get on Zoom, maybe that might be an option depending on what kind of event it is. that may or may not work.

But to your point about being the human element, I think you can always negotiate afterwards, but you want your contract to be as mean as you would ever want to be. Or as strict, and then you can always bend a little bit on the back end. You know, something came up, especially if it’s not your fault, not their fault, — try and accommodate the best you can.

GB: So really, it feels like it’s always been just a case by case basis of here’s what the contract says, here’s what the letter of the law is in this situation, but, I am building a relationship-based business and they didn’t do anything wrong or I didn’t do anything wrong, and it’s just this weird situation that happened, so how do we create the best possible outcome for the business, for the relationship or whatever it may be.

Now if we go back a couple years, especially at the beginning of the pandemic when all events are shutting down and you’re dealing with just the local rules and restrictions around events and people gathering, there was the thing that we kept hearing of called a force majeure. What is that? Explain that to us and how that may or may not affect events.

AWB: Well, I’ll tell you what, we had that in a lot of our templates, but we have them in every single one now. So force majeure, it’s sometimes also called an “Act of God” clause, and it is basically meant to address things that are truly out of anyone’s control.

So nobody did anything wrong, but there’s a labor strike and you can’t get into the theater or COVID happens and we’re in lockdown, so you literally can’t have the event. The thing is, now that COVID has happened, I think most people are considering that it is no longer unforeseeable. So things that are ongoing like that are no longer a surprise. This is the day and age that we’re living in now. But having that in your contract really protects both sides. But that force majeure is your catch-all  that if something happens and it’s outside of anybody’s control, it usually allows either side to cancel the contract, which normally you wouldn’t be able to do with just the speaker agreement.

GB: Can you tell us what’s the difference between contracts and riders? One thing you kind of touched on there was audio preference or something like “I want this type of microphone instead of that type of microphone. I want the stage to be set up like this, or the lighting like this, etc.” Musicians or artists who want their jar of red Skittles or the water to be European imported at a certain temperature of 82 degrees. So what’s the difference between them? How does a rider fit in with a contract?

AWB: Yeah. So a contract is gonna to be your basic agreement, and then think of the rider as something that’s kind of tacked on. So the way a rider usually works is the event host may have a standard agreement that they want every speaker to sign, and then each speaker may have some special requirements or some special terms that they want to kind of tack on.

You never want to be signing two totally separate agreements. We do see that sometimes where the speaker has theirs and the event host has theirs. They’re conflicting, and so this avoids that problem, but you kind of tack on this rider that has extra things that might not be in the original contract. It could go the other way, although I usually see that the speaker is the one bringing the rider.  Other things I mentioned when we were talking before is that we have seen an influx of speakers who only want to speak at events that are in alignment with their values. So sometimes they will only speak at an event if 25% of the speakers are women, or 50% are people of color. So we’ve been seeing some of those things even put into the rider, and that will give the speaker the opportunity to cancel if that agreement isn’t met.

Protecting Intellectual Property

GB: Okay, let’s shift gears a little bit. You touched on intellectual property. Let’s first start by talking about that for a speaker. A speaker gets up on stage, they present their material for whatever length of time and that is ultimately their IP. How do we make sure as speakers we’re protecting that content, because in this day and age it may be recorded or they could be putting it up on social media or, you know, tagging people or whatever. How should we be thinking about IP and the balance of sharing it, protecting it, and what are your thoughts?

AWB: So legally under US law, and I’m a Tennessee lawyer, copyright law is the same in all 50 states. So under US law, from the moment that something is out of your head and is in some sort of tangible medium, you have copyright protection over that, that’s automatic. So any talk that you are giving, as long as it is written down, captured on video, it’s protected. But if it’s just spoken, and no one captures it, that’s not going to be protected. But in this day and age, like you said, we’re typically going to have it captured somehow, so you have copyright protection. However, you cannot actually sue someone. So let’s say someone rips off your speech or someone takes a video and posts it without your permission. Typically for most of that stuff, if it’s publicity, you’re not really going to care. Now the problem is if another speaker starts using your stuff or if you’re doing a corporate event, then put it in a product they’re selling — you can’t file a lawsuit until you actually register that content with the copyright office.

So I’m not saying everyone needs to register everything because there is a cost and time associated with that, but let’s say you have a signature talk that you’re giving a lot and you’re charging a fair amount for it. That might be something to think about because that’s going to be your best level of protection.

GB: So how do we even file for protection for a talk? Let’s say it’s my 60 minute signature talk and it’s a talk that I’ve given perhaps hundreds of times and it’s got a lot of core ideas and stories, and some are personal stories — how do you ultimately protect that?

AWB: So you’d have to capture it somehow, because you have to actually submit it to the copyright office. So that could be a written script, it could be a video, however you want to capture that. And of course you’ll change it a little bit because we all change things a little bit over time — it evolves. But whatever you send to the copyright office is what’s frozen in time. So again, if you’ve got a talk that you’re really worried about protecting and it’s evolving and you’ve changed a bunch of things, you might want to redo that registration.

GB: How much would you recommend to a speaker that they work to protect their IP? Because it seems like if it was shared, maybe it would help further your brand or get you in front of people. On the other hand, it feels like you could probably end up sending cease and desist letters constantly. And you’re just playing whack-a-mole all the time. So where do you land on if you should protect something and how do you continue to protect it?

AWB: Yeah. I think it depends on what role speaking plays in your business, you know? Is that your whole business where you’re just trying to book more gigs? You would probably approach it differently because like you said, you’re building relationships, you want to get on more stages, and sending out cease and desist letters is not a great way to make friends . Now, on the other hand if you are an author and you have books and you’re a really high paid speaker, you’re doing far fewer events. So maybe you want to hold that talk a little closer to the vest because you really want people to pay you the big bucks to come deliver it. You don’t want it out there on YouTube where anybody can watch it. So you might take a different approach there.

GB: All right, let’s shift gears a little bit on the IP talk as far as if you want to use someone else’s potential IP, and that could come in a lot of different formats. Maybe you heard a story that you want to use or an anecdote, or you read something in a book, or you want to play a clip from a song, or show a YouTube video that’s really cool. Are we allowed to do that? Should we not do that? Do we need to get permission to do it? What are we able to do?

AWB: Yeah, so the strict legal answer is anytime you’re using someone else’s IP without their permission, that could be copywriter trademark infringement. Now you mentioned before that you spoke at a school assembly.

When we think about risk, that is probably very low risk that a movie studio or song publishing company would ever find out you referenced or shared something. So, it could technically be copyright infringement, but it’s unlikely that anything will happen. Now, if you’re at a university or a big corporation, they may have a little less risk tolerance, so they may ask that you show your clearances. I don’t know if that’s ever happened to you. I’ve certainly reviewed contracts that had that as a provision. So it’s good practice, especially if you are doing one of those higher profile gigs, to either get permission or minimize how much you’re using other people’s stuff.

If you’re featuring someone’s story in your talk, I would definitely want to at least let them know, maybe get their permission, and make sure that they’re okay with it, because that’s the kind of thing that can be damaging to relationships too, right? Someone finds out that they’re a joke in your talk and they had no idea — that doesn’t feel great. If you’re using someone’s picture, just run it by them. It doesn’t have to be some fancy contract. It could be an email. But just getting it in writing that they know, especially if you’re giving this talk over and over.

GB: So how do we continue to kind of protect the whole empire in terms of content, but also shifting gears a little bit — trademarks is something else that comes up and so what should we trademark and what do we not need to trademark?

AWB: So I consider content marketing, like your blogs, your emails to your list, any of that kind of stuff, it’s really hard to protect. I mean, you’re not going to be able to register it.  It is covered by copyright law, but just as a practical matter, you’re not going to be registering the copyrights to that stuff.

Maybe if you have a signature online course or something like that, that’s really making you money — that’s worth doing. We do a lot of those registrations. But for that day in and day out, like social media posts, blog posts — you can put the copyright notice on there, but what we have found is usually people most of the time they’re taking your idea and they’re rewriting it or it’s clear that they were inspired by you.

Sometimes we try, sometimes people will comply. But I would generally say, don’t worry about that stuff as much. You can spend all day feeling like you are just battling ogres, but at the end of the day, that is probably not what’s really bringing you business. So we try to focus on the things that are really affecting your business and your bottom line.

So contracts are a great way to do that. I mentioned if you do have ways that you’re making money from your content, like an online course, you know, having a solid contract with your students is a good way to do that.

You know, risk reward assessment, that’s what we do as lawyers. We try to help you avoid the really big risks. But like you said, with every business, there’s some risk. You can’t avoid all of it, or you’d spend all your time worried about that and not providing great services or products and actually getting in front of customers.

GB: Yeah. Now we spent a lot of time here talking specifically about speakers, but just for entrepreneurs in general — you work with a lot of online entrepreneurs. Are there other things that maybe we want to hit on as it relates to common things where business owners can drop the ball or overlook things? What are the things we should probably be paying more attention to?

AWB: Yeah, you mentioned trademarks, so I’ll touch on that just quickly. So copyrights are going to protect your content.  Trademarks are going to protect your brand. So The Speaker Lab would be a trademark. And I actually have kind of an unpopular opinion here. I think people worry about trademarks more than they should. I think for most personality driven businesses, which I think most speaking businesses are, the trademarks are probably not as important as contracts or some other things. Trademark registration is very expensive and it takes forever.

So as you’re thinking about where you want your legal or just general business dollars to go, that’s not generally the first place that I would recommend. The other thing I would mention that people are talking about are all these privacy laws, and you just can’t avoid them.

So we are starting to see lawsuits around not having a privacy policy or not protecting customers’ data that you may have, especially if it’s sensitive. You just can’t ignore that stuff. It’s not that hard to comply — that’s the good news. It’s not super expensive or burdensome, but one of those costs of doing business.

GB: You touched on this earlier, but you’ve got some templates and super easy tools that people can use. So if people want to find out more about you and some of the tools that you offer for entrepreneurs, speakers included, where can they go?

AWB: Yeah, everything’s on the website. It’s my initials,

GB: Awesome. Thanks for the time. Thanks for saving us on legal expenses over the years! You’re so welcome.

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