Ep. 69: Do’s and Don’t’s of Content Sharing

Fed & Fit
Fed & Fit

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    On today’s show, I’m interviewing my friend and trusted legal mentor, Kristen Roberts of Trestle Law! She’s sharing her thoughts on how you can protect your business from the beginning, when to determine if you need to consult with a lawyer, and what is and isn’t okay when it comes to content sharing.


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    Episode 69 Transcription

    On today’s episode, I’m interviewing my friend and trusted legal mentor, Kristen Roberts of Trestle Law. She’s sharing her thoughts on how you can protect your business from the very beginning, when to determine if you need to consult with a lawyer, and what is and what isn’t ok when it comes to sharing digital content.

    Cassy Joy: And we’re back with another episode of the Fed and Fit podcast. I’m so excited about today’s interview. We’re talking to one of the most lovely, vivacious, wonderful, smartest gals I know. {laughs}

    Kristen Roberts: Oh my gosh, I have so much to live up to! {laughs}

    Cassy Joy: {laughing} Her name is Kristen Roberts. She is the founder and managing attorney of Trestle law. Trestle Law focuses on intellectual property, business and employment services for socially conscious and socially responsible businesses. She is a friend of mine, and also my attorney. {laughs} I’m so excited to say. Kristen, thank you so much for coming on the show today.

    Kristen Roberts: Thank you so much for having me, Cassy. I’m really excited to be here. It’s going to be a lot of fun today.

    Cassy Joy: I know. We’re going to have a good time. We’ve got some good questions lined up. Kristen has a wealth of information. I don’t know how much; I’ve talked to her on so many things over the years. I guess we’ve known each other about a year now, haven’t we?

    Kristen Roberts: Yeah. I feel like we really got to know each other at last PaleoFx, right?

    Cassy Joy: We did. That’s right. We had great conversations there, and she’s just given me really, really solid advice over the years. She works with a number of my colleagues in the industry; a lot of other bloggers, and then of course her business expands much past that. If you’re a business owner looking for help in the law sector, I highly recommend her. I trust her, and she does amazing work.

    Anyways, I’m excited to have her on the show today. We’re going to talk about; really, we’re going to zoom in on what to do to protect your business from the beginning, when do you need a lawyer, and then also talk about sharing information in the digital age, kind of as a mini-PSA. In this blogging world, so much information is online. When is it ok to share someone else’s information, when is not ok. And then what you can do to not only protect yourself, but what do you do if your content is borrowed.

    So I just think those are good grounds to cover. But before we get into all of that, I would love to pass the baton over to Kristen. Tell us a little bit more about yourself, more about your business, and maybe what are some of the favorite parts of your job.

    Kristen Roberts: Well sure, I don’t mind telling you about my job. Lawyering is, I would say, it’s a lot more just client management and really setting client expectations appropriately and kind of just doing the right thing and being a good person. Because so much of it is relationship development, and that I think is probably just to start at what my favorite part is. I would say that’s probably my favorite part of owning my own law firm, is I get to work with the people I want to work with and that I respect and that I like, and you know, that are really kind of putting a great message out into the world and I can kind of help elevate and support that message. So that’s my favorite part of my job.

    My background is, I worked for a small law firm before going out and starting my own law practice. I was there for a little over 3 years, I want to say, and they taught me; because they were a small law firm, I was sort of put in charge of everything from my whole case load to my invoicing to client-comp communications to signing them up to fee agreements, and everything. So I would say that my last law firm was really beneficial in terms of learning the ins and outs of running a business, because they really expected us to sort of take personal ownership and responsibility for the work they were giving to us at the firm.

    So I left my firm, and I was asking my husband, you know, what should I do next? And he was kind of like, I think you should start your own law firm. And I kind of looked at him like, you’re crazy! I don’t want to do that, that sounds like way too much work. And he just was really insistent; he goes, I really think you can do it. You’re good at meeting people and people like you, so I think you should go for it.

    He actually loaned me the money to start my business. It kind of just took off from there. And actually my first client was a blogger in the paleo community, Steph Gaudreau, and she was actually the one that was like; man, you would be really helpful in the paleo world, and kind of really helped me develop my client base for the most part, really I helped her with one small issue, and it just kind of took off from there. So I really credit her on me getting into this space, in particular.

    But yeah, my background is general legal work. I was doing everything; I was a general civil litigator, so I was in the courtroom a lot, and the courtroom is fun but it’s really crowded, it’s really backed up especially in California, and it’s sort of like untangling the yarn ball when it’s already a mess. I kind of wanted to help prevent the mess. So I’m mostly doing transactional work. I still do some litigation. I take about two to three cases a year at most, and they are usually good cases. {laughing} I like to pick the good cases, as opposed to the ones that just kind of get dumped on me from when you’re at a firm you don’t really have a say. So I really like having that kind of say over the cases that I take.

    And you know, because it is a lot of pressure and the time tables are, you know, you don’t really get to dictate to the court when you’re going to have a hearing date. So because of that sort of structure, I only take a few cases a year. But I do have that background in litigation, so I do know how to handle myself if things ever hit the fan in the wrong way. So that’s kind of how I got started and how I started my practice and what I love most.

    I mean, you know, as a business owner; you can’t really beat the flexibility, either, of working for yourself. I mean I, full disclosure, am sitting here in my sweat pants and oversized T-shirt talking to you. {laughs}

    Cassy Joy: {laughs} That’s great. I think, if you can hear beeping in the background, it’s because my laundry is beeping {laughing}.

    Kristen Roberts: {laughs}

    Cassy Joy: So there is awesome flexibility. Awesome responsibility; we’re working all day long, but it is a good, it’s a treat. That’s interesting, you know, hearing about your perspective on being in the courtroom and wanting to prevent the tangled mess from ever getting there. Really in a lot of ways, mirrors why I chose nutrition.

    Kristen Roberts: Oh really?

    Cassy Joy: Yeah, because I was working in the medical field. I was on my way to medical school, and I was working for a primary care physician, I was her medical assistant between college and med school, and did her phlebotomy program and helped her with front office stuff, and I really learned a lot from the experience, but my biggest takeaway was I wanted to help keep people from even having to get to that point.

    Kristen Roberts: Yeah.

    Cassy Joy: And in that experience, I learned that nutrition, educating on nutrition could change lives drastically and help people avoid even the intense medication conversation. So that’s pretty interesting. It’s funny how we have very different professions, but in that matter we’re birds of a feather.

    Kristen Roberts: Oh yeah, absolutely, and I would even go further and say that a lot of the law; yeah, of course I’m providing legal work, I’m providing legal contracts and trademarks and things like that to help protect business owners, but a lot of what I’m doing is business counseling, right? So when somebody hires somebody, I’m asking them questions like; well, do you have this protection in place for in this agreement? Are you looking out for whether or not they’re really an independent contractor or an employee? Are you toeing that line too closely?

    So you know, it points out, I ask them questions to really get them thinking as opposed to; oh, I got that agreement from Rocket Lawyer. Well sure; or Legal Zoom, or wherever. Or Google. You know, and often times those documents, they can work, but you don’t necessarily know what you’re getting because you’re not having that sort of conversation with somebody who kind of understands the landscape.

    Cassy Joy: Absolutely. That’s interesting. And you do; you do provide amazing consult. {laughs} And you can tell that it’s just a passion of yours, and I think that’s really, really wonderful. I’m blessed because I have a husband who is very familiar with a lot of the business practices, so I tend to lean on him a lot. But having somebody with your particular expertise is just, absolutely, you can’t put a price on it.

    Anyways; ok awesome. And you’re kind of in the paleosphere to begin with; Crossfit and following a grain-free lifestyle, correct?

    Kristen Roberts: Yeah, that’s actually how I got into the industry. I’m really passionate about it, I started with a 30-day challenge like everybody else, and like a lot of other people, and I saw just amazing results and then I started crossfitting more heavily. I actually met Steph, my first client I was telling you about. And she’s pretty well known, and she always is the one; she always says, tell everybody you worked with me! {laughs} So I’m allowed to disclose that, it’s fine.

    But, she was actually, I met her, she was my judge in my first Crossfit competition here in San Diego.

    Cassy Joy: Oh, how fun!

    Kristen Roberts: Yeah, so that was actually how I met her in person, and then we sort of became Facebook friends after that and it developed from there. Now she’s one of my closest friends, and that’s kind of how it always works with people in this industry; because, you know, you work in it, it’s a small industry, it’s a small community. Everybody kind of knows everybody; everyone knows what everyone has going on, so it’s funny because I kind of, I sort of cross all demographics in that industry. Whether you’re the food product provider or a blogger or a photographer, or whatever, I’ve represented all of them and I kind of know how the inner workings of the industry go. And it’s great, because I’m really passionate about it, I’m really passionate about food as medicine and functional movement and all of that stuff, so it kind of just seemed natural for my business to go that way.

    Cassy Joy: Absolutely; definitely a natural fit. And it helps if you can not only talk about; you can speak to the content kind of helps, I think, me as a business owner makes me feel more comfortable. Because you know what I’m in; you know what kind of industry I’m in and where I’m headed.

    Kristen Roberts: Absolutely.

    Cassy Joy: So that’s great. And it is true; this community is very small, which I think we’ll touch on in a little bit. Steph Gaudreau; you know, we really are all friends with each other. She sends me texts regularly of screenshots of things that she thinks I need to know about. So it’s a really fun community to be a part of, everybody looks out for each other and she’s especially a gem. If you don’t know who Steph Gaudreau is, she’s StupidEasyPaleo.com, you should definitely look her up.

    Kristen Roberts: Yeah, that’s right. I just assume everyone knows her {laughing}.

    Cassy Joy: And she’s actually been on the show before, but it was towards the beginning, so if you are a newer listener, you should scroll back through the archives and get to know Steph a little bit better.

    Ok, awesome. Well I would love to jump into some of these questions I have for you. So first question, and this can apply to anybody; whether you are getting ready to start a business, maybe you have started a blog or a business, it doesn’t have to be a blog, or maybe you’re a few years into it. What are the things; because I think your answer is going to apply to all of these people. What are the things you think someone needs to do to protect their business from the get-go?

    Kristen Roberts: Well I kind of would say that the first bit of advice that I always give people, because it was the piece of advice that was given to me, and I always kind of look at it from my own perspective, because I’m a small business owner, first and foremost. Yes, I’m a lawyer, and I provide services to other people; but I’m a small business owner. That’s what I do, and one of the biggest pieces of advice that one of my mentors gave me, and oddly enough it was my old boss at my last law firm, and we’re actually still really close. He actually just called me while we were talking {laughs}.

    But what he told me was; he said, act as if your business is going to succeed from the beginning. Because I was asking him; should I incorporate now? I know a lot of attorney’s kind of play fast and loose with incorporating, some of them start as sole proprietorships and I was kind of like; well maybe I should do that because it doesn’t really make sense to pay the incorporation fee and the franchise tax board payments. You know, I don’t know if I’m going to make that money; it’s $800 a year. And he looked at me, and he goes, “If you can’t afford $800 a year, then what the heck are you doing in business?”

    Cassy Joy: Mm-hmm.

    Kristen Roberts: You know? And he said; so why not just set yourself up for success from the beginning? And that piece of advice kind of has played throughout my business when it comes to implementing a new marketing strategy or rolling out a new website design; why not invest the money from the get go? And yes, it might be a little bit more up front, but that’s why you budget for those things. So for me, I sat down with my husband, and we wrote out a plan. We said; ok, what are the things I absolutely need?

    And one of those things, I’ll tell you right now, was a law practice management software. And for those who don’t know, it’s kind of like an Asana or you know a Basecamp program, but geared specifically towards lawyers. And I said; oh, I absolutely need that. And I wound up really not needing it at all. So you learn really quickly what you don’t need, but I still budgeted for it. So I wound up having a little bit of extra money in my budget because I wound up not actually needing it at the end of the day.

    So I would say, to protect your business, start by treating it as a business. Because I know a lot of bloggers, they start out just starting a blog. But if it’s your intent to really run it as a business, treat it like a business. And don’t wish you could go back in time and change things that you could have budgeted for in the beginning.

    Cassy Joy: I think that’s great advice. You cut out there for a second, but I think we got it all. That is priceless advice; when I started Fed and Fit, the very next; and granted, I’m surrounded by business owners, so similar I had really great mentors. But back in 2011 when I decided to finally start Fed and Fit, I bought my URL, and then I went and registered my LLC. And it just made sense for me to do it at the time, and that was the advice I got at the time, even though I didn’t know what was what {laughing} and I still don’t think I do understand everything exactly. But treating it like a business from the get-go I think is really, really important.

    And something that; I mean, I’m a little late to the game beyond that. Beyond just registering my business; in working with you for example, I have these big programs coming up, and it wasn’t until I really was going to have more I guess interaction in my online programs and on my website that I realized I needed to protect myself, and it’s almost a little bit of a catch up.

    Kristen Roberts: Mm-hmm.

    Cassy Joy: Getting ahead of the game with the project, for example, the first group starts in September, but there are certain things we need to set in place in advance of that, and it can be a little intimidating, just like you said. It’s more upfront costs when you probably don’t have income. But you really are protecting yourself. It’s kind of like patching the ship before you set sail, just to make sure you’re going to be in really good shape.

    Kristen Roberts: Yeah, yeah. And you know, I would also say that a lot of people do the sort of ostrich, where they would rather bury their heads in the sand and hope that the problems don’t ever become problems, rather than even attempting to reach out and talk to somebody, like an attorney or an accountant.

    I’ll tell you right now that the first person that I hired when I started my business was an accountant. And I’ve actually worked with lawyers before in my business, because you know one of my kind of things is I try to avoid doing a large majority of my own legal work. Some of it I do by myself, like things I’m really comfortable with like trademarks and stuff like that. But if I were ever to do; I was contemplating entering into a partnership with another attorney; we were going to hire an attorney to do those documents. We’re not going to do them ourselves, it just doesn’t make sense.

    Cassy Joy: Right.

    Kristen Roberts: So I have to hire professionals too. And they are expensive. My accountant is not cheap, but she is amazing, and she prevents me from making mistakes that I would have made. I would have made mistakes if I hadn’t had a really good team of people. And you think; I would just put it this way. You can spend upwards of $5,000 really easily on a website, so why would you turn your nose up at spending something similar for a professional who can prevent you from getting into legal problems.

    Cassy Joy: Mm-hmm. I think that’s priceless advice. And I’ve seen, just in my own personal life, friends and family who have entered into legal troubles, and at the end of the day it wound up costing them way more. So not only in hassle, but in expense of course.

    Kristen Roberts: Absolutely. It’s 100% more expensive to unwind the ball of string, like I was talking about. And that was also part of the reason I wanted to step away from litigation as much as possible, but I was getting these clients who felt like they had no choice, right? So they’re like, we need a lawyer, we have to pay for you. And that creates tension, because it’s; you know, you’re constantly worrying about how much you’re feeding this attorney, and unfortunately with litigation, it is such an unknown set of variables that you can’t fix fees. It’s so hard to say; ok, well I can do this for this price.

    I can set reasonable limits and expectations, but oftentimes you’re at the mercy of the other side and what they’re doing to you. And litigation often comes down to who has the most money, and that’s really, it’s just not as much fun for me because I want to give my clients results. I want to be able to say, this is what I can do for you, as opposed to; well, I rode you to the middle of the lake, here’s the paddle, good luck getting yourself the rest of the way there because you can’t pay me anymore.

    Cassy Joy: {laughs} Yeah.

    Kristen Roberts: That was the part of the job that I didn’t like, and that was part of the reason that I was like, I think I really want to stick to transactional work as much as I can. I’ve seen how a lot of these clauses and contracts function, especially in courts of law, so I’m a little bit better suited to draft them in a way that are a little bit more protective than they would be if you were using somebody who didn’t have that experience.

    Now I’m not saying, obviously, I’m not the best attorney in the world. I’m not saying that by any means, but it’s helpful.

    Cassy Joy: Yeah, absolutely. It makes perfect sense. And I also think that working with a professional, like yourself, not only shows respect for that profession, but you’re showing respect for yourself and in taking your business seriously, and also anybody that you’re going to be working with. I think it shows a tremendous amount of respect. So some of my partners and collogues through, in my business, I want to make sure they know how seriously I’m taking this relationship. And I’ve consulted a professional to help us both protect ourselves. So I think it’s a really smart thing to do, and it shows a very well rounded, level-headed approach to business.

    So this kind of bleeds into my next question a little bit, because you’ve pretty much answered. But the question of when do you need a lawyer; I mean, really the answer is, and feel free to correct me or rephrase what I’m about to say, but it’s a good idea to seek advice from the very beginning.

    Kristen Roberts: Yeah, and I think what a lot of people don’t realize is that; you know, I get asked a lot of questions, I just had somebody reach out to me on Instagram in a private message, and I’m very available to people, because I really think that as much as I can be generous with my time, I am. And you know, obviously that’s difficult to do when you have to sort of balance your time that you’re giving away with the time that you're charging for, because after a while, you sell your time for a living, and that’s sort of in and of itself a hard thing to do because you only have so much; it’s a finite amount of it.

    But, to the extent that I can be generous with my time I try to be. Because you never know when that person is going to come back with a multi-million dollar product that they developed, and they come to you because you were generous with that 5 minutes that you gave them and didn’t charge them for it. So, to that end, I always say interview early and interview a lot. I might not be the right fit for you; and I always tell clients that no is ok.

    Cassy Joy: Mm-hmm.

    Kristen Roberts: If I’m not the right fit for you and you just don’t feel that jive with me, don’t hire me. Because it doesn’t make sense to work with somebody that you don’t trust, and you don’t like. Why would you pay me money if you; you’ll just feel resentful paying me money if you don’t like me and you don’t feel like you can trust me. You’re better off going to somebody else.

    And a lot of people don’t realize that attorneys a lot of us give no charge consultations. And I always say that to people; I offer no charge consultation, it’s to see if we’re the right fit for each other, and if we are the right fit for each other we can talk about how to move forward. A lot of attorney’s offer that service. So I highly recommend interviewing somebody early on in your business when you’re starting out; make a lot of calls. Call a lot of attorneys and see if they offer a no-charge consultation. And if they don’t, ask why not. Because at the end of the day if they want your business; right, so you’re interviewing them as much as they’re interviewing you.

    Cassy Joy: Brilliant! That’s great advice. I think that’s awesome advice. Ok, next question. This is kind of something that we’ve talked about a little bit already before on a separate call, but I kind of want to cover or review with you being the expert and me being {laughs} the fumbling client.

    Kristen Roberts: {laughs} No!

    Cassy Joy: With just some road experience, you know. I really want to talk about the culture of sharing content now a days. Because this is an unprecedented amount of information that people are putting out there. Just as you’re kind of in the business of free consultations, you know, at the beginning of your business, the nature of a food blog or any blog at that matter is giving away content. That’s what we do; we put all of our content out there for free in the hopes that, of course we’re making a difference, but if we want to turn that into a business, then we listen to what people love and we expand on the pieces that really resonated with our audience and we turn those into a product. Which is exactly what I did; it took me 5 years because I was a little bit of a slow learner, and that’s where the book and the project came from.

    But, I have almost 300 recipes on my website that are totally free and anybody can log on and look at them; but they’re mine. And even though they’re free to use and anybody can look them up and cook from them, that doesn’t actually mean that they’re free to republish by somebody else. So what I kind of want to talk about is what is ok when it comes to sharing content; because there are some rules where you can adapt a recipe from somebody else; I’m going to stick to recipes so we have at least one example.

    Kristen Roberts: Sure.

    Cassy Joy: Without getting too fuzzy in other markets; but what is ok when it comes to sharing, what’s not ok, and then what you can do if your content is borrowed; what your advice is to somebody. So start with what’s ok. What do you think is ok in terms of content sharing in your experience?

    Kristen Roberts: So what is ok in terms of content sharing is if, for example somebody has; say I really like a recipe of yours, like your massaged kale salad for example. Let’s just say I really like that and I want to share it on my blog, or on something of my own. The best way to go about doing that is explaining that I really liked Cassy from Fed and Fit’s massaged kale salad, which can be found here, and then you hyperlink it or you link it to where you can actually find that recipe.

    So that’s the best way of doing things, is if you’re actually doing something and you’re taking a picture of a salad yourself that you made and that you want people to know where you got the recipe from, you link it in the article and you don’t take the actual entirety of that blog post on your site copy and paste it and then put it into your site. That’s what’s not ok.

    So attribution is the key, but also not lifting content and just redisplaying it. Because what happens when you copy and paste is you don’t get those links through to the original site. So people, what they’ll do, what I see a lot of people doing is they’ll copy and paste the full recipe with all of the directions and everything, and then they’ll say, “Can also be found here,” and then they’ll link it. Well, no one is going to click through to the actual page to look for the recipe if you’ve already got it on your website.

    Cassy Joy: Mm-hmm.

    Kristen Roberts: So that’s really what I see the most of. I would say that’s sort of the way that people sort of overstep the most is in that way. They think they’re attributing by saying; well, I gave you credit, I put your link there. Well yeah, you put my link there, but you also lifted the content 100% and copied and pasted it on your website; essentially guaranteeing that they’re not going to click through to my site.

    Cassy Joy: Right, exactly. And the reason; and just so you guys know as a business, as a business owner who has a food blog, there is a certain amount of revenue that comes through in advertising in views; page views. And that’s really kind of how I make my ends meet. So having that content redisplayed on another website essentially undercuts the work that was put into a recipe. So it’s free, but the idea is we really want to help cultivate traffic.

    And I really; just so you guys know. This is not meant to make anybody feel bad; if you’re listening and you're thinking; “Oh my gosh; I’ve done that!” {laughs} Don’t beat yourself up about it. I really do believe, Kristen, that people just don’t know.

    Kristen Roberts: Absolutely.

    Cassy Joy: You know, they mean well, they don’t mean to do anything wrong, and that’s why I wanted to have this conversation because, you know it’s ok, I just think that it’s now my job to kind of help spread the word on what is and isn’t ok, and don’t beat yourself up and you're not a bad person if you’ve made some of these mistakes, it’s just an easy thing to go through and you know, you can just update your blog post. It’s not a big deal.

    Some bloggers also don’t actually want you using their photos; I’ve seen that before. I actually don’t have a problem with that. For example, Buzzfeed is a good example. Buzzfeed does a great job; Buzzfeed is a huge website, right? They get a lot of traffic and they do an awesome job of always reaching out to me and asking for my permission to use a photo. Just a photo; you know they’re not asking to repost the recipe, they don’t repost the ingredients, they just put a photo up, and they say; “go find this breakfast salad over on https://FedandFit.com here.” And it just shows a level of professionalism and respect. So when in doubt, email the person and ask.

    Kristen Roberts: And just to kind of speak to the photo issue; part of the reason you’ll be getting more requests for photos than you would with a recipe is because photos fall squarely within copyright protection; whereas recipes are much harder to protect because for the most part, the idea is that there are only so many ways you can bake a cookie. There are only so many ways you can make a salad recipe, right? So that’s why copyright law doesn’t really extend to recipes as much as a lot of people would like it to.

    Where there is sort of a gray area in terms of copyright protection as relating to recipes is in the directions themselves. So if you have a particular way or method of putting the recipe, putting those ingredients together, and it’s a very unique way of doing it. So you’re not; I’m not just talking about measure a quarter teaspoon of baking soda and then an eighth; to the extent that they’re very basic directions, you’re going to have a harder time proving that those were yours to begin with. But to the extent that they’re unique and novel, and you can show that and establish that, you have a stronger case to claim copyright protection over those instructions.

    Now, the ingredients themselves are never subject to copyright protection. But as far as photographs go; that’s part of the reason Buzzfeed reaches out to you, is because photographs do fall squarely within copyright protection. So it’s much easier for you to enforce your rights regarding a photograph than it is regarding a recipe.

    Cassy Joy: That makes perfect sense. And the only instances that I’ve really reached out to fellow bloggers; and like you said, it’s a small community. People will let you know when they see something of yours that may be borrowed inappropriately on another site, is if my photo was used; I’ve seen this several times. And this; someone must know that this wasn’t ok. But if my photo was used on their website for a different recipe.

    Kristen Roberts: Yeah.

    Cassy Joy: And they claimed it as their own; that definitely borrowing in the bad sense. So I’ll reach out to them and ask them to take it down. But what would be your advice to somebody who their content was borrowed. What do you think would be a really good plan of action. If they do discover that some of their free intellectual property that they put on their website was used inappropriately, what would you recommend to them to do next?

    Kristen Roberts: So really, it just depends on their level of comfort in dealing with confrontation, right? Because you have to let them know what’s going on; the person who borrowed the material. And a lot of times what people will say is; “Eh. It doesn’t matter; I’ll let them do it, it’s fine. I’ll get over it; it will be ok.” But you never really know what you’re losing out on when you don’t address that. And the law kind of has this, not hatred for, but intolerance for people who sleep on their rights. For people who look at something, know something is happening to them or something affecting their rights in a negative way and they do nothing to prevent it, and then ask the courts for help four or five years down the road. That opens up a defense called latches, which basically says, if you sleep on your rights, why are we going to reward you for your being lazy about protecting yourself? So there is that idea there that if you do nothing, you are in essence acquiescing to the behavior.

    Cassy Joy: That’s fascinating; your condoning it almost.

    Kristen Roberts: Exactly. You're maybe not actively condoning it, but you’re passively condoning it, especially if you know about it.

    Cassy Joy: Yeah.

    Kristen Roberts: So I would say if it’s content, and it’s word for word content, you have a stronger case under the DMCA, the digital millennium copyright act, and it’s not the best protection because it was enacted in, I think it was like 1998. It was a long time ago, so it really needs some updating, I think. But for the most part what it allows you to do is reach out to the service provider, and the service provider, the law basically says service providers can’t be held liable for infringing content unless they’re made aware of it and don’t do anything about it.

    Cassy Joy: Mmm.

    Kristen Roberts: So when you send a DMCA takedown, you’re basically saying; hey, we’re making you aware that this content has been stolen, so it’s your responsibility to make sure it gets taken down. And so that’s really, really helpful, and that at least gives you some way with some teeth to prevent that kind of appropriating of content.

    But that’s sort of a; I use that, not as a last resort, but I use that as sort of the hammer as opposed to, most of these people don’t really know what they’re doing is wrong, and reaching out to them and letting them know; hey, this is what happened. Here’s what I’d like you to do instead of what you’re doing. Most people respond pretty favorably; and that doesn’t require a lawyer.

    Cassy Joy: Right. So just be proactive and reach out to the person, let them know. Don’t feel like it’s done and you have no say in the matter.

    Kristen Roberts: Yeah, absolutely. And you know, another thing is that I see a lot of, not just stealing. I don’t want to say stealing; not just appropriating content, but also appropriating trade dress and trade names. So trademarks, trade dress, that sort of thing. Your business name; somebody could come out with Fit and Fed. And if you don’t have your trademark protected; yes, you can still enforce your rights under the common-law, but it becomes much harder because there’s an added level of proof that you have to set forward saying, “I was the first to use this, here’s my proof that I used it before you.” It just looks a lot messier than, “here’s my registration number, you are doing something that’s confusingly similar to what I’m doing that’s going to make consumers unsure as to where the goods and services are coming from.” And that’s what trademarks are all about; preventing consumer confusion.

    So if you have those little added elements of protection, it makes things a lot easier, like for example if you have something on Pinterest that you want taken down, and they’re using some of your exclusive content that has your Fed and Fit name on it, and you own your trademark, you can actually submit through Pinterest’s takedown; they have their own takedown sheets. And it makes it easier if you just reference your trademark registration number then having to write out an argument to Pinterest; they get a lot of them. They’re a lot less likely to want to read through your whole argument as to why you’re right than just look at your trademark registration number; and go, oh, ok she has the rights to it, we can take this down. It’s just much quicker.

    Cassy Joy: I love it. That’s awesome. It’s really good information; I have more ideas for how you and I can work together. {laughs}

    Kristen Roberts: {laughs}

    Cassy Joy: Oh man, this has been so helpful, Kristen. I hope that listeners are; I’m sure they’re getting a lot out of it, but I hope you guys feel encouraged by today’s conversation and know that it’s actually easier than you may fear getting some of these things set up correctly at the beginning. So don’t be afraid to jump in, don’t be afraid to ask questions, ask for those consults if you’re a business owner or want to start something. Protecting yourself from the get-go can really help. This is just how I interpret it; but it helps me sleep better at night knowing that if things go really, really well for me and my business, I’m already protected.

    Kristen Roberts: Yeah, absolutely.

    Cassy Joy: I’ve invested in that I guess just feeling secure in my business. I really appreciate you coming on the show, girl. You’re great!

    Kristen Roberts: Absolutely, absolutely. And if anybody does want a consult or wants to get in touch, or email me questions, please feel free to do so. You can reach me at my email address, Kristen@TrestleLaw.com. And like I said, 30 minute consultation no charge to you. It’s about determining whether we might be the right fit, but I’m happy to talk to you and answer questions and kind of put your mind at ease and point you in the right direction and that’s kind of what I’m here for for people.

    Cassy Joy: That’s wonderful. Thank you so much, and I’ll go ahead and link up to your website as well in the show notes so people will be able to click right through from there, as well.

    Kristen Roberts: Perfect, awesome.

    Cassy Joy: Wonderful. Thank you Kristen, I appreciate you coming on the show.

    Kristen Roberts: Of course, thank you for having me. Bye.

    Cassy Joy: Of course. Bye-bye.


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    1. Barb says:

      Great episode! As a new practitioner, what is good etiquette for using content from the various blogs I follow as handouts for my clients? I am not worried about getting sued, but want to be certain I’m not taking advantage of the work others have done. At the same time I want to be able to share resources I use with clients and don’t have the time to make my own guides all up front? Thank you!