0:00:05 - Michelle Pualani
Maybe you have a business or you're thinking about starting a business, but you're so wrapped up in the excitement of it all that you don't really think about some of the technical things like forming an entity, getting legal documents in place or how to protect yourself as a small business owner. In this podcast episode, we delve into the legal landscape with our guest, olivia Cassellini, partner attorney at a better professional corporation or better for short based in San Diego, so specializing in providing holistic legal solutions for small businesses, creatives and nonprofits. Olivia collaborates closely with her partner and team to assist new ventures in navigating the legal system. Despite the potential cost challenges, they emphasize the importance of tailored legal support, having streamlined their system so their services are more accessible and trimming the fat, so to speak, of unnecessary expenses.
We're going to chat about what to think about as a small business owner so your business stays protected, content creation, advice to avoid copyright infringement, and setting boundaries so you maintain your sanity in running a successful business. As you listen today, please note that this is just general information and if any of this resonates with you, with where you are in your business, this is not legal advice, so please seek counsel from an attorney. Let's dive into it. Hi Olivia, welcome to her first and let's start off with an introduction to your business and how you really support small businesses overall.
0:01:32 - Olivia Casellini
Thank you so much for having me. I'm really excited. You mentioned I'm an attorney, I'm licensed to practice in California and a huge part of the work that I do is helping small businesses, nonprofits and creatives really get up and running. I do help them throughout their life cycle so I'm able to help with quite a bit, and especially when my partner gets wrangled in, I often wriggle him in for different things, but we really just try to be holistic. So we help with everything from entity formation to labor and employment and contracts, estate planning. We also do notary services, so really we really try to be a one-stop shop for our clients and we just really want to be a safe, trusted source for people who typically get left out of the legal landscape. With small businesses and nonprofits, they are not always working with a huge budget and that usually means they have to bootstrap and do things themselves and that can often get them into trouble in the long run, and so we're really trying to meet that need and fix that problem for a lot of people.
0:02:36 - Joanna Newton
I think that's a really important problem to solve. I've worked at large corporations who have whole legal teams and people you can go to to ask questions, have things reviewed in that process, and that's so helpful. I've also worked at startups who have no legal advice or help or very minimal. And then personally in my own business. We started a company completely bootstrapped with zero dollars and had to navigate all of those legal things a lot of the time on our own right, figuring out, doing research using resources like LegalZoom, which is obviously not as tailored, as a lawyer, just for yourself or for your organization. And a lot of that is because the cost of legal services can be really high and really prohibitive to those of us who are just getting started in our businesses being bootstrapped, like you said. So how do you strike a balance between offering quality legal support and managing costs for your clients?
0:03:40 - Olivia Casellini
Yeah, I mean it's tricky. We still have our crazy student loans to pay. So we are. I never like to say we're cheap, because in reality we're not we are probably still going to be one of your more expensive service providers. But we also got into this knowing and when I say we, I mean myself and my partner Sam we got into this knowing that our priority was really to empower people with education and not necessarily to become the biggest law firm or the highest profiting law firm. There are plenty of law firms that that is their goal and that's their own thing, but it was never ours. So, you know, we just really try to keep it the forefront. What our priorities are, which, like I said, is empowering people through education.
So we really like to try to keep our clients in the loop and typically when our clients are in the loop, they kind of start to form their own ideas of where there are red flags for their business and once they kind of have that sense of, okay, I am in over my head. I need to bring in my lawyer before things get too complicated. That can help them save a lot of money in the long run. Working proactively can really really keep costs down. So that was something we really wanted to communicate to our clients was just if cost is an issue for you, you need to act a little bit more proactively. You're not going to have the option to just throw money at problems, so let's make sure those problems don't arise in the first place. We don't press, we don't push everything off to the clients. We also have just made a lot of choices internally about how we want to operate to keep our costs down.
We don't really operate like a traditional law firm in a lot of sense. We don't have a huge high rise office downtown. We work in a coworking space and we rent a private office there, but it's one room that we are all working in and if we need to take phone calls, we have our little podcast rooms downstairs that we go into when we need that confidential space. We also really prioritize being efficient with our transportation. A lot of law firms I don't know how many people know this, but a lot of law firms will actually give stipends or company vehicles to their attorneys, because it looks really good for an attorney to show up at a meeting in a really nice car, but that just didn't matter to us. So my business partner rides an electric motorcycle or an electric bike to work. Our paralegal takes the public transit system in San Diego. I am a one car household and I share with my husband and that's just what we have decided to do to keep costs down.
A lot of law firms pay for awards. You'll see, rising star from a certain super lawyers is a big one. Super lawyers is a paid award. Literally anybody can be a super lawyer if they pay for that award, and so we don't do stuff like that and that really does keep costs down. And so when we're able to keep those costs down, we don't have to pass them on to our clients. And yeah, I mean just overall trying to prioritize being fair in our business practices. We just like to be as transparent as possible with our clients, letting them know upfront. This is how long this process takes, this is how much it usually costs from a government perspective if you want to do it yourself. But this is usually the kind of problem you'll run into later on down the line and just giving people, I guess, the full landscape of what they're dealing with so that they can make an informed decision with their money and with their time.
0:06:46 - Michelle Pualani
Being proactive in that way is really, really important. I don't think that we talk about that enough in the online space. I think that we're considered really short term gains focused, but this amount of followers in a month make this much money in 90 days or 30 days, in a short period of time but we don't often consider what is my business going to look like in a year from now, five years from now, 10 years from now? We don't have that futuristic thinking always at the forefront and therefore changing our decision making process. Actually, one thing that's coming to mind is Alex Hermosi was saying that when he was looking for a YouTube person to actually start and support his YouTube presence, he told him that in 10 years from now, this is the results that I want to have, and it completely shifted the way that his agency and the way that his partners thought about the work that they were doing. It's not about, okay, how many views can I get on this, how viral can I go, but what am I investing in now that's going to fulfill in the long term and that's going to pay back in dividends? Anything legal services is exactly that. You're investing in something now that might not show or demonstrate its value and it might feel quote unquote expensive, but really in the long term, it'll pay off and support you over the course of your business, and I think it's important for us to think about those things and consider those things.
The other thing in which you're sharing you're really demonstrating the priorities of how you've created and cultivated a business. You're not just stepping into the norms of what it means to be an attorney or a lawyer or have a legal business and say, oh, this is how everyone's always done it, this is just how we're going to do it too. We have to fit into that mold. A lot of the things that you mentioned are easy adjustments or simple adjustments that can really support yourself in your business and as well as attract the right type of person to your business and the type of businesses and business owners that you're looking to support. So I think, as you're listening to this, really considering how you're setting up the structure of your business, the services that you offer, the priorities that you have, and how that's being reflected then in the clients that you're drawing in, the customer base, the audience on a larger level, I just want to say thank you, thank you for creating that type of business and thank you for prioritizing it in that way, because, you're right, there are a lot of expenses that come along with businesses, and I'm kind of thinking of business coaches, social media coaches, and I see a lot of stuff of flashy, flashy purses, flashy vacations, flashy cars, flashy homes, and we think that that is a statement of success and we almost kind of get programmed in that direction to think that, oh, this opulence, this luxury, this financial well is what I'm really seeking, but that's not how we all want to live, and it's okay to say no, that's not as what I identify, that I'm working towards, and I want something else, and I want to determine and create something else for myself.
So a lot of the folks who listen are in the digital space specifically, or in the online space, and today we're going to talk about some things that are really valuable for our coaches, our creators and our online business owners when it comes to understand how they're showing up in the online space.
One of the things that stood out to me while we were talking is setting boundaries between your client to coach, or client to attorney, in your case, partnership, and what that relationship looks like, and I think sometimes we can all relate to having been pushed outside of our comfort zone when it comes to the scope of work that we're providing to someone, whether that's as a coach and you provide certain time accessibility, text messaging, boxer, video chat, access through email or in the time length of your calls, right or what it is that you actually help someone with.
Also, as maybe a freelancer thinking about oh, I offer this type of service, this is the scope of work that I'm offering, this is the timeframe that I'm going to do it in, this is the cost, but we've definitely heard some horror stories about contracts going awry or clients overstepping their expectations of what they're looking for in a service or program or a product. So could you elaborate on some of the key aspects that we should really consider or think about as business owners when we're offering services or providing digital products to clients or customers?
0:11:02 - Olivia Casellini
I definitely see the horror stories, and that informs how I draft everything I draft for my clients. Sometimes I think it's intense when I give them a contract that has all these worst case scenarios listed out, but you know what the clarity is really important, and so that's my number one thing for people is make sure that your contract turns your refund policies, whatever it is that you are wanting to enforce later on down the line. Make sure that they are clear and really do cover as many worst case scenarios as you can think of. It might be kind of scary to the person that's signing it, but often I find that if you just talk with them and it kind of explains why those things are in there, they get it.
I have had people push back on some parts of contracts that are really really necessary to be there, and I always take that as sort of a red flag of maybe you don't want to work with this person, because if they're pushing back now where you're setting your own personal boundaries, that might be sort of an indicator of what's to come. So I really encourage my clients to just take a step back when people are really unrelenting and wanting to remove those boundaries right up front. I also see a lot of people who don't want to use contracts with people that they are familiar with, so, whether that's family members or friends or people that are in the same industry that they're maybe working on like an affiliate type thing with they kind of want to do like a handshake deal where they're just like we're all professionals here, we all will, you know, be nice to each other the whole time we're working with each other, and that's just really usually not true. Some of the worst contract disputes are just, you know, issues that I've seen arise actually come from people who are working with their own family or they're really close friends because there's so much history there and there's so much passion and just so many different things that can be pulled out and kind of like thrown at you when you are in a dispute with somebody you care about that you might not necessarily have with somebody that you're like at an arm's length distance with.
So I think contracts are even important in those situations, and that's usually like my first bit of feedback to people when they're trying to think about the services they're offering and the digital products and just how they want to protect themselves is what do you have in writing, because that's going to be your. What we describe as your first line of defense is your contracts, your anything in writing. I see a lot of kind of we call them Franken contracts, where people will take things from the internet and kind of try to like sew together their own contract. I'm going to say seven or eight times out of 10. That's not like an actual scientific number that I've come up with. I kind of just made that up off the top of my head.
But I'm going to say like seven or eight times out of 10. Most of those Franken contracts are probably not going to hold up, so I do really recommend investing in speaking with a legal professional to just make sure that your contracts are solid to begin with.
And then you can usually reuse them. I also think looking into insurance is a good idea for a lot of people. Insurance is obviously notorious for not paying out, so you do want to kind of use insurance in tandem with contracts and other ways to protect yourself. But insurance is a really good option for people who are in the digital space, especially if you're doing like digital downloads that people are going to integrate into their computer systems and things like that. There are different types of insurance out there to protect you if somebody claims that like what they downloaded, like corrupted their system files and stuff like that, and a lot of those policies are fairly inexpensive, so that's always worth looking into.
I'm trying to not sound super salesy about all of this, but your business is an investment.
There is going to be a lot up front that you're going to have to think about. That has a price tag associated with it, but I just keep coming back to the proactivity of it all, where, if you are investing in this stuff up front, I cannot tell you how much money you will save in the long run. I can try to tell you, though. I've had people who didn't want to take my recommendation for paperwork and things like that, who six months later they were audited and now owe like upwards of $40,000 in back taxes. So all of that to say it is worth getting things in writing, even if it costs you a little bit up front to get that contract written. It is worth looking into insurance. It is worth making sure you've kind of explored the world of having like a formalized entity instead of just doing things as a sole proprietor, because there is protection that comes with that. It's really, really worth it to at least have the conversation with an expert around those sorts of things.
0:15:17 - Joanna Newton
In my business and even in my career, when I think of all of the worst situations I've had with customers or clients, it's always been when something went awry with a contract, right, like either you didn't get a contract or you got a contract and signed but like changed something but never updated the contract. So then you're like oh well, we said we were going to do this and we both agreed, but there was never an endendum made to that contract. In those situations you normally end up losing money. Right, you give a refund. You have to do that because you don't have the proper legal protection in place.
And I think if you're a new business owner, if you're a new content creator, a lot of times you just want to get your first sale. Like I kind of also get the desire to not do those steps because you think someone wants to work with me. They're going to pay me $1,000 to do this project. If I give them a long, arduous contract to make them sign it, they're not going to want to sign it. I'm not going to get that money. Right, it can definitely feel like a hand-drant, but I totally agree with you. If someone is going to be a good client, they're going to understand why you want that signed, and they're going to also understand that it also, you know, at the end of the day, there's some things in there that are going to protect their interests. Make sure they get what they need. Make sure, if don't provide them what they need, there's something for them too. So I think there's a way that it can be done in a win-win for everyone, and if you've never been a business owner or never worked a job where you've had to have legal documentation, that can feel, I'm sure, very overwhelming for people.
I want to talk a little bit about a real-life situation that we'd love to get your feedback on, because I think it'd be very helpful for our listeners. So the FTC, or the Federal Trade Commission, is taking action to stop Learn, a Maryland-based online business coaching seller, from making unfounded claims that consumers can make significant income by starting an array of online businesses. This is based off bogus earning claims to convince people it would teach them to make large sums of money online. This is something lots of coaches and creators do make claims about what their students, what their subscribers, can see if they follow their systems or their practices. And as business owners, as creators, we often have to play a role of digital marketer, so we're promoting our services as well as surfacing folks and creating that content. Can you explain what's happening in the situation and how, as business owners, we could avoid an outcome like this?
0:17:58 - Olivia Casellini
You have to remember that the FTC's main job is to protect consumers right, and so consumers are really just anybody who is purchasing anything in the US, and so this company, which I'm not super familiar with, I'm going to just kind of take a stab at this based on what I do know about the situation. So, if you do think this might apply to you, seek out an attorney to help you with your specific situation, to double check it. But with coaching, it's a. Coaching is a very interesting field, because I think there are so many coaches out there that are really doing important work. But I think that this is also an area that's very susceptible to scammers, and this just sounds like a scam to me when I look up the different statements that this company was making to consumers. They were saying stuff like fail 98% of the time and still be able to make $11,453 per month, sign me up. That sounds great Because it's way too good to be true, but you know the way that they're marketing this. You know that's a very specific dollar amount which I think if you're not discerning, you might be like, wow, that must be a real dollar amount I can make based on actual experiences that this person or this company has had, when in reality, this is probably a claim they just made up out of thin air. So I mean my feedbacks here for coaches and creators and influencers and content content creators in general one be honest about what you know, your abilities are and what your expertise is, because this sounds immediately like the core of this was just an immense amount of dishonesty.
This is, at the end of the day, a fraud claim. So, to avoid fraud, don't lie, don't make things up, don't post things that are too good to be true. That sounds like a very obvious thing, but it's not for a lot of people. I think that's something that in this ever competitive business landscape, people kind of want to show their value by putting out the flashiest thing. Michelle, you were saying flashy, flashy, flashy earlier, and I think social media really breeds that kind of need for flash, but sometimes flashy is what gets you into trouble like this. This is a really flashy claim.
There were a bunch of other ones in there that the FTC specifically was calling out that were equally as sort of like ludicrous, but there are people out there that will believe that, and so the FTC's job, like I said, is to protect consumers, and it looks like Learn actually was able to take advantage of a lot of people who are probably in really desperate places to make money. This sounds like very obvious advice. But don't be a scammer. Don't be trying to take advantage of people. Be honest and you'll probably be able to avoid the FTC.
If I could just sort of like round this out, a lot of the time the FTC doesn't just come after you. There will be warnings, there will be letters, there will be issues, lawsuits. You know things will come up. This is not something that just happens out of the blue. I would assume there were lawsuits against Learn on an individual basis before the FTC got involved.
But generally speaking, the FTC doesn't just all of a sudden say bam, you owe us like a million dollars. There's stuff that preceded it, so don't be too freaked out. If you are out there and you're a coach or a content creator and you're hearing this and you're worried about your situation, stick to being honest. Stick to what you actually have expertise in and what you can deliver on. If you're going to use specific numbers like this, make sure you have actual data to back it up. Make sure there's fine print when you make claims like these. That explains if there is maybe a little bit that you're leaving out to make it a good soundbite. Make sure there's fine print somewhere that explains the actual full information and you should be just fine.
0:21:19 - Joanna Newton
I worked at a test prep company for a huge part of my career and the team worked so hard on any score increase guarantees Saying, if you're taking the SAT, we can help you improve your score by, say, a hundred points. Right, that wasn't something that would just get thrown out there. There was a legal team helping everyone through the process. There was data and research done to understand what the course could help increase. There was a policy of all the things you had to do as the consumer to get that score increase and a very specific process for how you got that guarantee to like. It was very, very detailed and very, very specific. I was a marketer very specific down to the point and I had like regulations of how I had to frame that guarantee. What had to be on the page, what I had to link to it, was very, very specific and was all provided to us by our legal team in order to be able to talk about that claim Exactly.
0:22:23 - Olivia Casellini
You don't even necessarily need a legal team to vet the things that you're going to say. A big part of what we're talking about today is how a lot of people who are just getting started don't have a legal team. If you're going to use data points, make sure you can actually back them up. If you're going to make guarantees which, by the way, as a side note, I, as a lawyer, personally never offer a guarantee, because, even if I feel very, very, very confident about something who knows Everybody's different, everybody's situation is different, and I mean we see it all the time with court cases where we have precedent, that gets overturned, even if we have a really strong precedent. Unfortunately, we've been seeing that in the Supreme Court that we have right now, where you know, cases like Roe v Wade that have been there for decades have been overturned, and that kind of stuff happens all the time.
If you're going to offer a guarantee, again, make sure you have the data points to back it up. Make sure you have some sort of policy in place. If you're going to make a guarantee, make sure it's clear in your contracts what that guarantee entails. If you say that you're in your example, that your test scores are going to go up by a certain amount. What happens if they don't? Do you get refunds? Do you get more coaching? What are you going to receive if you can't live up to that guarantee? That's my main suggestion for anybody who's nervous about what they're putting on the internet is clarity, honesty and don't rip people off. In general, sort of my feedback.
0:23:41 - Michelle Pualani
Be a good person. Well, I think this does raise bigger questions for us as digital marketers because, again, what we see so often in the online space feels like inflated numbers, whether that's financial or follower count or what I'm seeing oftentimes in the business and the social media and the online space of what people are promising. And I think that there's a deeper rooted issue here. One, because I know that in the past that I have felt compelled to try to stretch or change the language of something, whereas, yes, I was working with a client and, yes, we did have these sort of outcomes. But if it doesn't feel impactful enough to try to use it in your marketing, that can be really tough. Because when you feel like being in the health space for a long time, I felt like I was marketing in an ethical way and trying to be an integrity with what I felt like I could speak to. And then I hear from others of digital marketing courses where there is a large fat man in front of the computer teaching you how to make a sales page and he is creating a sales page for a weight loss program and he's pulling stock or online found photos of before and afters and just writing and talking and making up weight loss statistics or my client did this, and so I think there is a lot of fraud in the online space, and the way that people have leaned into marketing with really, really dramatized outcomes or really dramatized experiences can be really tough. Or maybe they've had a hundred clients and one of their clients had this outcome and so then they're promising it to everybody. It can feel really, really hard showing up in the online space when you're just like, hey, I can help you get healthier and do this thing, and so I think that for our coaches and creators who feel like they're struggling with that, I think being more specific about the uniqueness of what you do, what you offer and how you think about things is where you can maybe start to curtail some of that and not feel like, oh well, I can't measure up to what someone else is marketing or what someone else is talking about, and then just being mindful as a consumer, you know, in the online space, I know that between courses and masterminds and coaches, there's a lot being said out there that maybe isn't true. You know, maybe they did do a million dollar launch, but if they spent a million and one dollars, they didn't actually profit from that launch, and I've seen examples of that where ad spend is just as high as the income that's coming in. So try not to be so pulled into that world and have some discernment and think a little bit more critically about that and recognize that that person that says that they have the secret to your success. It's nothing new. Like I've seen behind the curtain of a lot of businesses and behind the curtain of a lot of courses and a lot of programs. It's nothing new. You probably have access to it already. There are plenty of resources and find Joanna or myself or get an attorney and figure out if it's actually something that's legitimate, ok. So another example I really want to talk about.
This is another bigger story that I've kind of been seeing popping up on social media, and it's specifically about content creation, which I think is really important, because I've had this question before what about trending sounds? What about audio pulled from movies or TV series? What can I actually use in the online space and be safe as a business owner, as a content creator, as an influencer, and be protected? Now, I know that in the movie I know you'll cover this of they're not going to go after the little guy, necessarily. But if we do start to grow or if we as influencers or content creators are partnered with larger brands, how can we can protect ourselves? How can we protect our content?
So Sony Music Entertainment has filed a lawsuit against US cosmetics brand OFRA O-F-R-A for allegedly using its music in Instagram and TikTok ads without permission. So in the realm of content creation, sometimes it really seems like things are kind of just like the wild west out there. That's what I feel like. When I see things that are gone viral, I'm like how are they legally using that content in this context, whether that's reposting or sharing or recreating or copying?
I even know that Jay Shetty, when he was first starting to grow, he was actually using quotes of other people and not properly attributing it to them, and he actually got hit with some stuff for that. So it can happen to us as we start to scale and grow in the online space. Now, firstly, as an IG or kind of TikTok user, there are obviously differences between the types of accounts that you have, and as a listener, you need to be cognizant of the type of account that you have and therefore the types of content that you're able to access or leverage are different right as an individual, a creator or as a business account and there are some potential legal issues, such as music rights, video usage and licensing deals on these social platforms that we should really be cognizant of. And so as a coach, creator, influencer or individual who is even just monetizing their content creation in some way, how can we think a little more critically about what we're posting, so that we stay protected?
0:28:53 - Olivia Casellini
I did not know that about the quote attribution issue, but that happens frequently.
0:28:58 - Michelle Pualani
But here's the thing is that we're not doing it maliciously a lot of the times, right, sometimes you don't think about it because it's like, oh, I'm just going to grab that text and repurpose it on my platform and not think about it that way, because I think when you're in that consistent breeding ground of content creation and you're creating on a quantity basis and you're just like I just got to get this out, I think that the line is very gray in terms of how you're using words, video, picture, images and I see it all the time online of like people will post on their Instagram, huge Instagram platforms and basically say DM for takedown. You know it's almost like ask forgiveness at that point, but you know that they're not getting the permission of whoever that creator is in order to share it. And I think it's just so common that people don't think about it that way, and I don't think that people are often trying to be malicious either, necessarily.
0:29:53 - Olivia Casellini
The quote thing specifically, and this is kind of where I'm going to start this overall feedback. The quote thing to me is just interesting because most of us went to elementary school or school where they teach you about plagiarism as a concept and I think that that's sort of a good framework for this in general. For this overarching conversation is the idea of avoiding plagiarism is knowing when you create something that maybe you've taken something that somebody else has created and you're using a large part of that without proper credit. And we kind of learn when we learn about plagiarism as kids that plagiarism is bad because it's taking knowledge that other people have created and kind of co-opting it for ourselves. And I think that's a good way to kind of just think about how we use things on the internet in general.
With copyright infringement, a lot of what we look at is how the copyrighted material we're taking is being used. One of the aspects we look at is if it's being used for personal use or commercial use, and so if it's being used for commercial use, there are more considerations we need to make about the use of the material. The idea is we don't want people taking intellectual property that other people have made and making money off of it without the creator getting some sort of benefit out of the deal, because otherwise that kind of cools innovation is the way we look at an intellectual property. We want to incentivize people to keep creating, and one of the ways that we do that is by cracking down on people who use that intellectual property unfairly. And so it is a gray area in a lot of ways because the tests for infringement, while there are clear tenants we look to, the way those tenants are applied looks different for each situation, so it's tough. Coming back to the plagiarism thing, my biggest feedback for a lot of my clients is think critically about what you're using and how much of it you're using. The more you're using that somebody else's and you're not getting express permission from them, the more likely you are to get into hot water, the more likely that's going to be infringement. It's sort of like if you were to take a picture and repost it, versus if you took a picture and added it to a collage with a bunch of things. Try not to take people's stuff. Try not to use big chunks of people's stuff without properly licensing it.
The difference between plagiarism in general and what we're talking about here and this will kind of bring me back to the Sony question specifically is with plagiarism. We talk about making sure that we're properly attributing to our sources, but on the internet, attribution alone is not enough. So you'll sometimes see on like Instagram posts. I'm not on TikTok, so I honestly don't know how people use TikTok in general. I don't know, are there captions on TikTok or is it just a video? I don't know. But on Instagram you will see if people know who the source is, they'll put the source down at the bottom of the caption a lot of time. That's not good enough. It will not protect you in the long run. You need to have a license to use the information, how you're using it, and so that kind of brings me back to the Sony thing, which is Sony filing that lawsuit against the cosmetics brand.
My understanding is Sony's music was being used by influencers on Reels where they were advertising these products, and so Sony has specific licenses with TikTok, with Instagram, for users to use those songs for their own personal use. So we were talking about this just briefly a minute ago about personal versus commercial use, and Sony has brokered the deal with these platforms, basically saying look, if people are using our music just for sharing it with their friends and sharing it with the world and they're not making money off of it. We're cool with it. We're willing to kind of like license this music out for this set price to you. Instagram and TikTok and your users are going to kind of be sub licensees, they're going to receive permission under your overarching license. But when we get into the commercial aspect, you've got influencers that are potentially making thousands of dollars to her posts and Sony is kind of saying, okay, hold on, you are now making money, including our music on your real or on your TikTok and we want a piece of that pie. So you need to either license it from us or not post it with our music.
That's kind of the deal here, and so my understanding with this particular lawsuit is there were people who were using Sony's music on commercialized posts either sponsored posts or affiliate posts, things like that, where they're making money off of them and they didn't have the proper licensing. They needed to go above and beyond what TikTok or Instagram has, just for general users. I know on Instagram that's why they have different types of accounts that you can have a business account for your business. I have a business account for my law firm and I have a personal account for myself and I can go on to my business account and post a reel and my music options or my sound options are way less than on my personal side, and that's on purpose. That's Instagram making good on, whatever their licensee deal with Sony was All of that to say. If you're using like an outside platform to create your reels or your TikTok videos and you're able to put music over them and then upload them into the apps, that might be a situation where you'll see later your reel says like audio unavailable because Instagram has an algorithm that goes through and notices like oh, this is coming from outside or this was not licensed correctly. We need to pull the audio off before anybody gets in trouble, including Instagram themselves.
A lot of time that will happen and that's what I was kind of talking about earlier when I said that you're not necessarily going to immediately be slammed by the FTC, the IRS, whoever. There's usually a lower level penalty for most creators before the government or anybody else at that higher level gets involved. It's not to say small creators just will always fly under the radar and nothing bad will ever happen in them. I do want to make that clear. Bad things can happen to you. They're just less bad, and so in situations like this, a lot of the time, instagram will have to take your video down. You're not going to get sued, but Instagram's going to take your video down. But every once in a while there are going to be companies that are going to, like Sony, have a lot more money. We're going to say there's an overarching problem here, which might be that this cosmetics brand is kind of like signing off on how these creators are creating their videos. There are going to be situations where there are big companies that can use their money to go after equally as big companies to get something out of it.
In terms of thinking more critically about what we're posting, it kind of comes back to what we were saying about the FTC in general is try to be discerning with what you're posting. Be a good person. Don't take people's quotes. Don't take people's images. Don't take people's songs without making sure you have the right licensing. If you are going to be taking money for your posts, make sure that you talk through what you're planning on posting, not only with the people that are hiring you, but also, ideally, your lawyer figuring out what liability would come back on you, what's going to go on the person hiring you. Sometimes you can push that liability off of yourself through contracts, so it is worth bringing in an attorney for that sort of thing.
And, in general, just think about how much of this do I have to use? How much of somebody else's intellectual property do I have to use to make this post effective or interesting? Try to keep it on the minimal side wherever possible and try to create things from scratch as much as you can. This is coming up more and more with AI being part of the business and creative landscape. How much AI is too much? There's not a very clear line. So it is going to be challenging to feel like absolutely safe using AI. It's going to feel challenging to feel absolutely safe using any kind of content that you are not creating yourself and that you're integrating into your content. So just try to be on the minimalist side and if you do receive some sort of takedown notice from either a person through a DM or through a platform, usually they'll just take it down without telling you. Respect that takedown notice and move quickly.
0:37:29 - Joanna Newton
One thing that I think is really complicated on social media with this issue is currently there's very blurred lines between a creator and a business as a social media entity. I'll give you an example and I'll have a question, kind of a follow-up question, for you. So, as an example, basically my personal Instagram is kind of also my business Instagram. Like, I talk about my business, I talk about this podcast, but I also post my vacation and my pictures. It's a creator account, so I have access to all of the music. Because it's not a business account. It's me showing my life as a business owner, which, of course, sometimes leads to me promoting my business. When looking at that music and all of that and copyright and materials because I sometimes promote myself does that affect my whole account or does that only affect the content in which I'm directly promoting something I can monetize for it? Because I think that's like this blurry line that I'm unclear about and I think a lot of our listeners would be unclear about.
0:38:37 - Olivia Casellini
And I love that. Michelle said earlier that the online space for creators is really like the wild west because it is, and one thing that I tell a lot of my clients is the law is a dinosaur. We've evolved as a society past what a lot of our laws are addressing. That's a huge thing with the ADA, the Americans with Disabilities Act, and how it applies online. This act, this law, was created pre-internet, or at least pre-internet in the way we use it. I think maybe the internet existed, but on those big, chunky machines that only scientists use. That was created way in the past, and so it addresses a lot of the time how people with disabilities can enter physical establishments, but over time we've tried to apply it to websites, and so there are rules around it, but it's very cumbersome to navigate, and so that's kind of illustrative of what I'm talking about here, where what you're describing makes total sense to me.
There is not always a clear line between the personal and the professional, especially on the internet where we're all posting about our daily lives 24-7, it feels like, and the law doesn't really have a super clear answer for that yet. It just hasn't caught up to that reality. There's a joke with a lot of attorneys. They kind of teach it to you in law school. Which is an attorney's favorite phrase is it depends, and that's really just in general how we respond to a lot of these things. Because the law is so slow, because court cases a lot of the time only apply to really specific scenarios and the court will kind of say, in different scenarios, where this, this and this might be different, there might be a different set of rules, so there's so much gray in the law.
This would be a time where I don't have a very clear answer. But my recommendation for you would be pay attention to how you are using your personal account and if it's veering into I'm just going to throw out a number 50% or more and you're using professional, maybe even 40%. Start thinking more mindfully about how you're posting. You might even get like little pop up. It happens to me. The other day I jokingly posted that my husband was sponsored by Tom Wonderful, that pomegranate company because he had like a million bottles of pomegranate juice and Instagram told me it was like you need to tag this as a paid post, even though it was a joke. Pay attention to that when those pop up, because they might actually be there to help you and protect you, and think mindfully about when they do pop up. Did I post this as a joke or was I trying to get a sponsorship through my personal page? That might be morphing it into being more of a professional page. It's tough. It really is the wild west.
0:41:01 - Michelle Pualani
So this is all when we're creating content. But if we're actually seeing someone create content that is plagiarizing our work and I've heard about this as well whether they're stealing digital products and programs, taking videos or direct content, posts and pieces and then they're using it and spinning it as their own, what rights do we have as a creator in order to protect what it is that we're creating from someone else taking or stealing or plagiarizing?
0:41:29 - Olivia Casellini
Yeah, I mean depending on what people are posting and taking from you. I mentioned the phrase takedown notice earlier because there's a law called the Digital Millennium Copyright Act or the DMCA, and the DMCA requires platforms like Instagram, tiktok, youtube to have a way for people to submit a notice saying somebody else is using my copyrighted material or the material that I've created on your website and if you, as the overall platform hosting that material, doesn't want to be sued by me, you need to help me get this taken down. I actually can't think of a single platform that doesn't have a dedicated form somewhere on their website to help you do that. You can usually just Google whatever the platform you're looking at is and then DMCA takedown form and it'll usually pop up and it's almost always like just a form that you fill out online. You don't even need to speak to a person. You might have to upload some supporting evidence of how something is your material. That can be a little bit more tricky if you don't have a registered copyright or a registration of some sort protecting your intellectual property. It's still potentially an option and that is something that the law has created to address this type of situation that you are talking about and then alternatively, if something is not copyrighted or protected through a registration, you might still just be able to use the reporting function, on whatever platform you're using, to report a post as inappropriate.
I see that a lot where people will ask their followers if they find a profile that's impersonating them. That can sometimes be difficult to prove that somebody is impersonating you, so they'll ask their followers just like can you report this as not being me? But yeah, that is an area where a lawyer can also help you. We have had people come to us with questions around whether or not they can fight back on this kind of thing and then we look at their materials that they want to fight back on and I'm like wait a minute, but you took this from somebody else even before. So that would be an area where you might want to speak to a lawyer before you do anything too drastic, before you come in guns blazing saying take this down or else.
I think an attorney is also really helpful in helping with strategy. That's a big thing that I do for a lot of our clients and my business partner especially because he does trademark. A huge part of our trademark strategy is just it doesn't make sense to register a trademark based on what's already out there in the world, because sometimes you can put yourself on the radar for other people who have similar trademarks that could fight to oppose yours. So sometimes the strategy is what you're paying for with an attorney is not necessarily just like drafting paperwork. It's kind of thinking about okay, what makes sense here, what kind of paperwork, what kind of filings and things like that.
0:44:02 - Michelle Pualani
This all gives us a lot of things to think. I think more critically about, and what I'm kind of coming to is that proactive quality that you mentioned at the beginning, olivia, and really being conscious about how we're creating our businesses, what sort of entity we're building, what it looks like in the long term, and how we kind of think about Formulating our foundation and the principles in which we'll be working, whether that is ethics or whether that is legal Technicalities. And I think we each have an opportunity to ask those things, I think in the online space, because everything is so gray or people just get started as content creators because it's something they're passionate about, and then it actually turns into a full-blown Monetized platform. There's sometimes some of those legal things that are missed within the business landscape. So thank you so much for giving us all that feedback.
Again, as you're listening, noting that this is not legal advice, to please seek counsel from an attorney and just to kind of discern from yourself what's right for me at this time. So, as we start to wrap up this conversation, olivia, our podcast and platform is really about her first prioritizing yourself in business and life. I know that the legal field is often kind of intense and I know that you've structured your business and a kind of a Different format, a different way to prevent burnout and actually to prioritize yourself and take care of yourself. Can you share a little bit more about what that is like, balancing those worlds? I?
0:45:23 - Olivia Casellini
take self-care very seriously. I have worked in different businesses where the expectation is you work, you work, you work, you work, because we're giving you so much when in reality it's like you're giving me a paycheck and maybe health insurance time, lucky, and I just I don't subscribe to the idea that we live to work.
I work to live. I make my money so I can enjoy my time off and, you know, take care of myself and the people I care about, and that really matters a lot to me, so I prioritize that. I mean, self-care can be really boring sometimes. For me, sometimes it's just making sure I eat three meals a day Because I am so busy making sure I block out times to that. That sounds ridiculous, but I literally have a calendar block on my day every single day for lunch because it's super common in my industry you just work through lunch. Now it's really important for me and, kind of relatedly, I set a lot of boundaries with my time with my clients. I only have certain days of the week that I will talk on the phone because I need Dedicated time to put my head down and work. That's just how I function best and a lot of people have said well, you know, but you want to be available to your clients, you know more frequently than that. I'm like I'm not the kind of attorney where if I don't respond right away, that people go to jail. I work on contract. It's not that serious. I can make those boundaries of. Okay, I will speak to you on a Monday or a Tuesday or Wednesday, but not Thursday, friday, because that is what I'm working and I need that to maintain my sanity. To be honest, like I said earlier, we try to be affordable, but being affordable doesn't ever come at the expense of our own personal health at this law firm. So if I'm having a client who's being really, really unreasonable with their expectations, if they're kind of thinking I've been a work through my lunch break or that I'm gonna work over my weekend or things like that outside of my business hours, I'm pretty comfortable with letting them know that, a I will not do that and, b If it is something that is truly urgent like they've just filed, fired an employee and they did it all incorrectly and we need to swoop in to fix the situation I tell them up front You're getting bills are rush fee, you're getting billed at a higher rate, because that is something that we think will help curb that behavior in the future. So violations of those boundaries that we set, we actually address those in real time. So that's been really important for me in terms of, like, my individual self-care, but, I think, in general, for making sure that this business is sustainable for myself, my partner and anybody else who works with us.
I'm really communicative and so is my business partner. You probably got that from my responses to your questions. I tend to over communicate rather than under communicate, but that helps us as a team really Understand where the other person is at and make sure that we're covering each other and preventing each other's burnout. If I can't handle something, I will tell my business partner and he will either jump in for me or help me craft Communication to our client to let them know we have to pass on that project. So really communicative, really introspective. We're always adjusting our business practices to make them more functional, to make them more accessible to our clients. We actually have a huge running list for 2024 things that we're gonna change in our law firm, just based on like feedback that we've gotten or fees that are working for us, and it keeps us all really optimistic.
Also really helpful, I think, that innovation and that freedom to always be tapering and I guess that kind of ties me into my last thought on this is just, I also know that I can always pivot.
I know so many attorneys who went to law school paid all this money to do that and so they think they have to be attorneys until they die to kind of get a return on their investment.
But I don't really believe in that sunken cost fallacy. I'm absolutely gonna do my best to pay off my student loans, of course, but if I don't want to be an attorney in five years from now, if I want to do something else, if I want to go into consulting or I want to work in-house and some other capacity for businesses, I'm okay with that. Like I said, I don't live to work, I work to live, and so if this work doesn't serve me in the future and it doesn't meet my needs or my family's needs, I'm okay with pivoting. So that makes it so that I can do the work I'm doing without this sort of like big heavy weight on my shoulders Of it's me and myself taking care of the rest of the world. It's just knowing I have the ability to be flexible in these ways, which is one of the great things about running your own business and being able to be the architect of your own career. Thank you.
