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Debunking 6 Legal Myths for Creative Business Owners

Oct 10 2016

by Christina Scalera

The Southern Coterie: "Six Legal Myths for Creative Business Owners Busted" by Christina Scalera. (photo: Kelli Boyd Photography for The Southern Coterie)
photo: Kelli Boyd Photography of Stachel in Savannah, GA, for The Southern C

Getting and staying legal is something you should only have to do once and revisit a few times every year. Below, we’re uncovering six common legal myths busted – yes, just because everyone else is doing it doesn’t mean it’s okay or even legal (don’t shoot the messenger!). Treat yo’ self and get this done today, so you don’t have to worry about anything again for a while!

1. The chances you would ever get sued outright is very, very slim.

You’ll almost always get a cease and desist letter first. Filing a lawsuit is expensive, not just because of the high filing fees, but because lawyers are expensive! And it takes them a long time to draft up anything worth a court’s time. As we all know, time is money, and when it comes to lawyers, time = a LOT of money. Eeeek! Since the end goal is usually just enough money to make someone whole again, it doesn’t typically make sense to sue someone when a few emails could resolve the issue, and therefore, lawsuits are typically not very common for the majority of business owners.

2. Attribution does not negate copyright infringement.

Crediting someone’s photo on Instagram or your blog doesn’t mean you’re okay. In fact, quite the opposite is true, because if you’ve tagged them, you’ve now told them that you know where the photo came from, and you recognize it’s not yours + you’ve led them directly to the violation. Asking for permission is not only the friendly thing to do, it’s also the legal thing to do, and I’ve never had anyone turn me down when I’ve asked. In fact, most people are very appreciative to have someone recognize their work for what it is, and you’ve now earned a new friend in the biz. Go grab a glass of champagne to celebrate, friends.

3. Your photographer probably owns your images.

Unless you have a clause in your contract that specifically assigns away her copyright in the images, or states this was a work for hire, your photographer is still the original creator. Therefore, you only have limited rights to use them. Always make sure you read the photographer’s intellectual property section and either license (kinda like renting) or buy the copyright so you can use the photos on all the materials and media you need in your business.

4. Trademarks do not exist solely to protect your name/logo/brand from being stolen by someone else.

Contrary to popular belief, you don’t ‘own’ a trademark in the same way you ‘own’ a copyright or car or any other kind of property. Rather, when you have a trademark, your ownership of a registration merely protects you from others trying to use your work in bad faith. If you’re like, “whaaaaaat?” right now, let me break it down. You work hard to create your name, brand, logo, etc. In the US, we respect all that sweat equity by allowing you to register your name, branding, logo, etc. as a trademark.

When you have a trademark, no one else is allowed to take a shortcut and start using your name, branding, logo, etc. as their own. This is because some portion of consumers (aka people buying your stuff) are relying on you to provide a certain product or service.

If someone else comes along and confusingly provides very similar or the same service/product, you are no longer the main source buyers are going to, and these customers could become confused. They may think they are buying a product from you, when in fact, they’re purchasing a competitor’s product. That is not cool, and it’s not legal. We want people to be able to freely and knowingly purchase exactly what they want, and if someone is using your name, branding, logo, etc., then that oftentimes doesn’t happen.

5. Just because there’s another business out there with the same name, word or phrase doesn’t mean you can’t register these things as your own trademark.

Even if you haven’t registered something as a trademark or copyright doesn’t mean you don’t have any rights against potential infringers. Trademarks are based on use in the US (not the case for other countries) and copyrights are fixed the moment a work (photo, painting, blog post, etc.) is created. I wish that was all you need to know about trademarks and copyrights, but friends, there is so much more good stuff, and you can find it here.

6. “I didn’t know” is not an excuse.

Just because everyone else is doing it doesn’t mean it’s okay or even legal, and the fact that you didn’t know something was illegal is not an excuse. ‘Fair use’ does not protect bloggers or other creatives from using others’ images or copy. Fair use protects things like parodies (which may be why memes never die) and educational materials. No, your blog, while informative, is likely not legally considered an educational source, and no, you can’t just re-post with wild abandon without consequence. Enter ‘the Ask’, discussed in point #2 above.

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Christina Scalera View More Blog Posts from this Author

Christina Scalera is the go-to legal source for creatives and wedding industry professionals. She believes every creative deserves not only a dream, but a thriving business too, and that all entrepreneurs should have affordable, easy-to-understand access to legal information. As a result of her unique approach, she has been called upon to speak at The School of Styling and the Cultivate Retreat workshops and also has a partnership with HoneyBook and the Rising Tide Society as a legal consultant. When she’s not knee-deep in trademarks, contracts and the like, she’s also the co-host of The Creative Empire Podcast!

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One response on “Debunking 6 Legal Myths for Creative Business Owners

  1. Marquin

    This is great information! I have had to deal with Trademark Issues and Photography Issues and wish I had had this information earlier!!

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