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Trademarks. Copyrights. Intellectual property. What do you need to know about these items to protect your ideas, and how do you stay out of hot water when it comes to work for hire, contractors, and social media?

This week we speak with Andrew Kraus of Opticliff Law, an IP expert, on what growing businesses need to know about all forms of protection for ideas and how to avoid trampling on someone else’s rights.

Rich: Our guest today is an attorney at Opticliff Law where his trademark and IP practice engages business owners and their marketing teams to ensure the value of the creation is protected.

Rich: He also stays involved with the entrepreneurial community by serving on the boards of Startup Maine and the Maine Coast Fishermen’s Association.

Rich: He lives in south Portland with his wife and son. We are very excited to be chatting with Andrew Kraus. Andrew, welcome to the show.

Andrew: Thank you very much. Thank you.

Yuri: We are delighted to have you. I heard that Opticliff Law focuses on startups. What are some of the services that you offer to the kind of companies?

Andrew: Yeah, so we, we’re, we’re a law firm. We love working with early stage companies, startups. I mean the word startup gets thrown around a lot to mean many different things.

Andrew: But yeah, we work with a ton of early stage companies, both in Maine and around the country. And our kind of bread and butter services are the company formation work. So you know, you want to start an LLC or a corporation or whatever type of entity, we’ll we get it off the ground for you, get you the documents you need.

Andrew: And then I do a lot of IP work, intellectual property work primarily in the trademark space. So names and logos, slogans. I’m sure we’ll talk about it, but that’s a big part of our practice and that is much more nationwide in scope because it’s a federal law, which is neat to kind of live here and practice nationally.

Yuri: I know that we are going to talk a lot about IP and stuff, but I’m really curious, why would I want to come to work with you instead of like going and getting something like off the LegalZoom.com or something.

Andrew: I mean it’s-

Rich: I was hoping Andrew was going to throw down his mic and be like, “This interview is over.”

Andrew: You know, I think a lot of it … Whenever you’re working … I mean, working with an attorney, no matter what you do or why you’re working with an attorney, at the end of the day, it’s a trust relationship, it’s a personal relationship.

Andrew: And whenever somebody is selecting an attorney to work with, it’s just got to be somebody you feel like you communicate with that, you’re not going to be afraid to call or send that email to. And really just find somebody that you trust and can, frankly, get along with, I think is a big part of it.

Andrew: And when you use any kind of national service that is more DIY in nature, you’re obviously not going to get as close of a relationship with an attorney.

Andrew: And then, obviously, services like LegalZoom, they have their place for sure. They do a lot of things that has kind of opened up legal access to people who otherwise aren’t going to get it or can’t afford it, or don’t want it.

Andrew: And they absolutely have their place, but at the end of the day, sometimes you’re just going to have needs that require a lot more either hand holding or hands-on work from an attorney. And that’s where we try to position ourselves to be.

Yuri: Fantastic. Thank you.

Rich: So we talked about the fact that you have this focus on IP intellectual property. This is something that I am absolutely fascinated by. You’re at a cocktail party-

Andrew: So you’re the one?

Rich: Yes … You’re at a cocktail party and somebody asks you, “What is IP?” What do you say to them? How do you define it?

Andrew: Yeah. And, I actually get this question all the time. So it’s kind of funny because I use the word, or the acronym IP, like its nothing. It’s like “I say it every day.” But, a lot of people are like, “What’s IP?” It’s like, “Right, I have to back up. Its intellectual property.”

Andrew: So we’re talking about intellectual property and it’s most basic. Well, it’s four things, it’s trademarks, it’s copyrights, it’s patents, and it’s trade secrets. Okay. What’s that mean?

Andrew: So what we’re talking about are the creative … In a kind of creations, either of your mind that are, or like a trade secret. Like I have this recipe or a creation that’s kind of tangible. Like, Poland Spring on a water bottle. So a slogan or a logo.

Andrew: And, intellectual property really encompasses all of those tangible and intangible assets that as a business owner you’re going to have that you kind of want to claim as yours.

Andrew: So that recipe is yours. That name is yours, that design of an engine, or a computer, or a pair of sunglasses is yours. So your intellectual property is all those assets that aren’t necessarily always super tangible but, to the benefit of your business.

Yuri: So then what’s the difference between the copyright, the trademark, the registered trademarks?

Andrew: Yeah.

Yuri: Can you walk us through it?

Andrew: Yeah, so trademarks are kind of names, slogans, logos. So the kind of the trifecta that everybody knows is Nike. So you have Nike as a word mark. You have their iconic swoosh and kind of check mark logo and then you have “Just Do It”, which is their tagline.

Andrew: So those are, those are trademarks. They are kind of what is on your packaging. If you’re selling goods or on the products themselves.

Andrew: And so that’s a big part of our practice is kind of protecting the trademarks of a company. And you had asked, “What’s the difference between a registered and unregistered?”

Andrew: A registered trademark is primarily talking about as a federally registered trademark. So when you create a name for your company. So fast … Perfect example, Fast Forward podcast year, when you create that name like, you have rights to it right now, you created it, it’s yours, you own it. Right?

Andrew: And you could potentially prevent someone else from using that name if they came up and launched a podcast called Fast Forward, if you were-

Rich: Fast Forward Maine, just so people don’t get confused.

Andrew: Right. Fast Forward Maine.

Rich: If we’re talking about IP, we should probably use the full name.

Andrew: Right. So, let’s say your competitor comes up and launches Fast Forward New Hampshire. Like you guys would probably be like, “Hey, what the heck? Like why are you doing that?”

Rich: Right.

Andrew: And it would probably, peeve you a little bit. So the advantage to registering your trademark is that it gives you much stronger rights to prevent that.

Rich: So what you’re saying is if somebody did start Fast Forward New Hampshire, we’d be in a better position to put the kibosh on that. If we had a registered trademark for Fast Forward Maine, than just the unregistered.

Andrew: Exactly. Exactly. [crosstalk 00:00:06:41]. So the fancy legal term for an unregistered trademark is called, it’s a common law trademark.

Andrew: And we could have a real long talk about what common law means, but that’s common law goes like way, way back to when we were first kind of as a civilization, figuring out what laws were. And common law is basically, the law written from one judge to the next.

Andrew: But a registration and a registered trademark is when you actually take the steps to register your mark with the US Patent and Trademark Office. And that opens up this whole wonderful volume of statutes and protections that you get to use if someone infringes your IP.

Rich: You know, I want to get to that. I want to make sure though, that we also talk about copyright, if you didn’t say that.

Rich: But you know, so one of the things that I’ve seen is like there’s probably a Carpet World in every state in the nation. And then all of a sudden, they want to expand to the next state and they’re like, “Oh no, there’s already a company with that exact name here.”

Rich: So what happens in situations like that, when you have a name that you’ve been using for years, you go to expand into a different state or a different territory and all of a sudden it’s like, “Yeah, well I guess Carpet World was not the most unique name that I could come up with.”

Andrew: Right. So yeah, I mean that happens a lot for better or worse.

Andrew: So the advantage of having a federal trademark is theoretically that first Carpet World could shut down all of its competitors.

Andrew: Now, there are a lot of qualifiers to that statement and the big one is kind of like the famous Burger King case and anybody can Google this. And this kind of like set the law in this area where before the mega giant Burger King that we all know, and maybe some of us love, expanded. They started small, but when they really ramped up their expansion, they wanted to make sure that they owned the Burger King name.

Andrew: And lo and behold, there’s this tiny mom and pop Burger King shop, in middle America, in the heartlands that was there first, that was older.

Andrew: And long story short is the law came down and said, “All right mom and pop little Burger King, you can keep existing. You were first, you do have a right to this name but very limited to your little geographic area. So you little mom and pop Burger King, you cannot expand and open additional locations because this other Burger King. The Burger King has secured federal trademark rights for their name.

Andrew: And so that’s kind of the intersection of common law rights and federal registration rights. Where really importantly in the United States trademark rights are what we call first in time, first in right.

Andrew: So the prior user is going to have a strong claim to a mark, but if you haven’t registered your mark with the federal government, your kind of sphere of influence is solely limited to the geographic area where you operate. As opposed to the 50 States and territories of the United States.

Yuri: So basically, if we’re doing a market research and we are in considering the opportunity to entering a different state, we can basically prevent a competition in that state from expanding beyond their existing borders? If we have a trademark on the name-

Andrew: First. Yeah, if you’re the first user. Yep.

Andrew: Well, if you’re a first user and you have a federal registration, you’re sitting pretty. You’re in a much stronger position.

Andrew: Where it gets fun is where one party has a registration and the other party’s a prior user. That’s where lawyers get involved.

Rich: So I don’t want to forget about the copyright. So how does copyright figure into all of this?

Andrew: Yeah. Totally without fault, copyright and trademark, the terms are mixed up all the time, all the time. I mean people just don’t realize that they mix them up.

Andrew: But to try to make this a little more clear. So again, we have trademarks, which are basically brand names. You walk into a supermarket market, you’re looking at there’s thousands of trademarks on the shelf.

Andrew: Copyright is more books, photographs, artwork, poetry, music, and then some odd things like vessel hole drawings for naval architects and clothing design and jewelry. But copyright is basically an artistic work.

Andrew: Now, where copyright … So let me back up. I’ll say when we’re talking about copyright, the name of the thing isn’t that important. It’s actually like the meat of it.

Andrew: So the name of the photograph isn’t that important but it’s actually like what does the photograph … like that photograph is what is copyrighted.

Andrew: A book, the name of the book, not that important. It is the content of the book-

Rich: Which is why there may be many books with a name like say I don’t know, Pride and Prejudice, probably not the greatest example, but-

Andrew: Yes.-

Rich: It’s a story that’s-

Andrew: Yeah, you can have multiple names and so that’s somewhere where trademarking copyright kind of diverges a little bit.

Andrew: Copyrights way more about the actual like content that’s being protected.

Andrew: Whereas trademark is like definitely about the name. Like trademark, you are judging a book by its cover, right? Like what is their … I mean trademark cares a little bit about what it is you’re doing selling, but copyright really cares about the intricacies of what is in a book, the written words. In a painting, the painted picture, what it actually looks like.

Andrew: And so for business owners, where you run into copyright most frequently is in your marketing content. So the language of your marketing content. I’ve dealt with cases where a competitor just straight up copies a whole website of a competitor.

Rich: That used to happen to me all the time.

Andrew: Yeah.

Rich: And then Copyscape actually is how I found a bunch of these.

Andrew: Yeah. And so, that’s definitely an area where it’s kind of become front of mind.

Andrew: Software code is another area where copyright has come into play. Whether you want to register your software code as a copyright, is something that gets talked about.

Andrew: And then, our firm, we started about eight years ago and back when we started, our goal was to kind of serve the creative economy. Like we wanted to work with the artists, the photographers, the designers and we did that and we still do that a lot and we’ve grown a lot to represent just kind of businesses of all shapes and sizes.

Andrew: But certainly a lot of our clients are still artists and photographers and jewelry makers. And for them copyright is hugely front of mind. And it has a lot to do with licensing the photographs.

Andrew: Like if you’re going to be a stock photographer for example, how do you develop a program where people can license your photographs to put on their corporate website or whatever.

Andrew: So that’s a big part of it.

Yuri: What happens to my photo if I upload it to like Instagram or other social media platforms?

Andrew: So yeah, that’s a great question. So, I’ll answer … I’ll go back a little bit.

Andrew: So I always ask whenever I give presentations on copyright or trademark, I always ask the group I’m speaking to, to raise your hand here if you own a copyright. And more often than not, nobody raises their … it could be a room of a hundred people and nobody raises their hand.

Andrew: And then it’s like, that’s a trick question because surely almost all of you do own probably thousands and thousands, and thousands of copyrights because you all have smartphones and you take photos on your smartphone. And copyrights are owned at the moment of creation.

Andrew: Again, you can register them to strengthen your ownership claim, but even without registering, you own whatever you create at the moment you create it.

Andrew: Now, huge caveat is if you’re an employee of a company, then your company owns what you create when you’re working for them.

Andrew: But, what happens when you upload a photo to a, a site like Instagram or Facebook or wherever, any kind of photo sharing site is, yes, you still own the copyright for that photo, but you’re granting some pretty strong licenses to those platforms to be able to display them.

Andrew: And so when you log in and create an account on Instagram, you check that box that you agreed to the terms of service.

Yuri: Right.

Andrew: Read it, see what it says. But you know, you still own the copyright. And you own the rights to that photo, for sure.

Rich: I want to bring it back to … And I do want to talk more about Instagram. But, I want to bring it back to like, I’m a business owner. Obviously, we talked about Fast Forward Maine, that’s one brand. I have another brand, The Agents of Change, and I’ve got my company Flight New Media.

Rich: For listeners out there who are running their own business, obviously have a name, logo, maybe a tagline, all these other things. What steps do I need to take to protect my own IP? And what falls under IP versus say what’s fair use?

Rich: And I don’t think a lot of people are going to be using Flight New Media stuff is fair use. But obviously, there’s a lot of stuff out there. You know, I’m thinking about the What’s Milk Campaign and you could find Homer Simpson on t-shirts saying “Got Beer?”, instead. These kinds of things.

Rich: So like what do we need to do? And then, what do we need to understand about what we can’t protect?

Andrew: Yes. So for … Those are great questions. And the fair use one, is one that comes up a lot.

Andrew: So, what do we do … So the average … Maine is a small business state. So average small business center in Maine. What do you need to do? What do you need to care about?

Andrew: I always think it’s worth thinking about … Figuring out what all your trademarks are. Because sometimes people, business owners aren’t really aware, or I shouldn’t say aware. They might think they have a use of a trademark, but they don’t use it properly.

Rich: Can you give us an example?

Andrew: Yeah, I’m trying to think. So it often … Trademark should be really obvious, really, really obvious. It should be the principle part of your branding.

Andrew: And so, I’ll have clients come in and say, “I want to protect this as to my trademark.” I’ll go on their website and I’ll say, “I can’t find it.”

Andrew: I should be able to find your trademark very quickly if you’re going to invest in protecting it, because you want this to be a very forward part of your brand.

Andrew: So that, that’s just kind of one example, I want to do. Or, the other thing I run into frequently is business owners and you’ll see if you look at a large company, and you and you kind of run through their advertising. You’ll see a very consistent trademark use.

Andrew: A lot of small business owners have what I would call inconsistent trademark use. And what I mean by that is they’ll … Let’s say you guys, for example, and this was what I messed up on earlier. So it’s a perfect example.

Andrew: Let’s say sometimes you called yourself Fast Forward, let’s say sometimes you called yourself Fast Forward Maine. And you did it inconsistently and you changed it. Or every now and then you were like Fast Forwarding, just changing the [inaudible 00:17:53] the case. So that’s, that’s inconsistent use and that’s something I see a lot.

Andrew: So yeah, what you should be thinking about for average business owner is consistency and it being obvious what your trademarks are. But as a part of that, is figuring out, “Okay, what are my trademarks?” Now, do any of these … Does it matter to me to protect them federally.

Andrew: And generally speaking, if you are selling goods in interstate commerce, meaning you are selling your products, if you are goods manufacturing, and you were selling your products and more than one state or on Amazon, or an Etsy, you absolutely need to be thinking about federal trademark registration for your word mark and potentially a logo if it’s a big part of your sale, selling your goods.

Andrew: For a service provider, like you guys as a podcast, or us as a law firm, it can certainly make sense, slightly less risk probably to not register.

Andrew: But frankly, it probably makes sense if you have an audience that is expanding in more than one state. Or if you provide your services to people in more than one state or you have multiple offices.

Andrew: So I think that’s a big part of it, is just kind of figuring out, what are my trademarks? Am I using them consistently? Am I using them in an obvious way? And do I have a broad enough scope of geographic scope of where I sell my stuff or provide my services? That it makes sense to think about a federal registration.

Andrew: And then similar, the big, huge thing with copyright and those other assets of your business, whether it’s your website or your marketing content or photographs you use.

Andrew: A big part of it is putting copyright notices on things. That’s easy. If you just start going online and you scroll down to the footer of all these websites, you’ll see that little C circle, “2019 All Rights Reserved”, blah, blah, blah, blah, blah.

Andrew: So that’s just a copyright notice. And that doesn’t necessarily mean that the copyright is registered, but it’s a smart thing to put on there.

Andrew: And it’s kind of like, I always did the analogy of it’s like locking your car, right? It’ll deter the thief who’s just going to come jiggle your door handle and try to get in.

Andrew: It’s not going to deter the thief. He’s going to smash your window and steal his car-

Rich: Who’s determined to take your car-

Andrew: Who’s determined to steal it and, but locking your car, putting notices like that is super, super simple. It’s the freeway of at least telling the world, “Hey, this is my copyright, this is my content.”

Andrew: And then the last thing I’ll say about business owners and IP, it’s actually all about contracts.

Andrew: And I’ll just kind of quickly say that it’s really, really important if you’re a business owner and if you work with other service providers.

Andrew: So let’s say, Fast Forward Maine, you’re going to hire a web developer to redesign your website, and that person is not an employee of your company.

Andrew: You want to have a contract in place with that web developer that basically states, “Hey, you’re going to do X, Y, Z. But remember, at the end of the day, I’m going to own the intellectual property you create.”

Andrew: And that’s going to work for hire agreement. And that’s a huge … It’s an immensely important document that no one really knows it’s immensely important. Because the law is pretty clear that if you are working with somebody who is not your employee, they own what they create, unless you have a work for hire agreement in place that gives ownership back to you.

Rich: So this is interesting because I run a digital agency and we build websites for people all the time. And I’ve had people ask me like, “Well who owns it?” And I’m like, “Well obviously, you own it.”

Rich: But what you’re saying is I could take every single one of their websites? But now I’m not never, I would never do that.

Rich: But should I put it into my agreements? It just to make them feel more secure that it’s like you continue to own the intellectual property and all that sort of stuff?

Andrew: So I mean more or less, yes-

Rich: I mean I don’t need to take the extra steps because I’m not going to do anything nefarious. But, from their standpoint it might be helpful if they were hiring a company like Flight to make sure that they have something in the agreement that says-

Yuri: Or anyone who is a customer or what agency that was doing the job like this, they can actually demand to have that clause in part of the contract.

Rich: Yeah, if we use any contractors, I’m guessing we should actually have in our contract, like we hire a copywriter many times we, we regularly use a particular program that we use the programmer extensively on some of the backend stuff.

Rich: So if I’m understanding you, we probably should just get a contract either for every job or just, is there a general one that-

Andrew: That’s a good question.

Andrew: Yeah, I mean, so you can … Depending on your relationship with the contractor. Yeah, I mean one contract could certainly cover multiple projects, so to speak, or kind of an ongoing relationship. It’s kind of defined by what you write into the contract. But yeah, you could do that with kind of one signature so to speak.

Andrew: When it comes to your point of like, do I need to have these agreements signed with individuals? The answer is yes. You should always have an agreement signed with contracts that you’re working with.

Andrew: Now, what I’m talking about as what’s called this “Work for Hire Agreement”, that’s what transfers ownership. And so yeah, it’s a good idea for you, if you’re going to have a developer writing you code or writing you copy. To have an agreement that says, “I, the company own what you create.”

Andrew: Now, there are certain times when that … You won’t necessarily transfer ownership, but you might instead just get a license.

Andrew: So photography, for example, is an industry where the standard is much more where the photographer always retains ownership of the photograph-

Yuri: By default.

Andrew: By default. Well, sort of, but … Well by default, yes, always by default. But what is common is like if you’re to have photography on your website that photographers giving you a license to those photos.

Andrew: A perfect example is, I got married about five years ago, our photographer, and this is common how wedding photography works. Our photographer owns the copyrights of the photos he took of my wife and I. And if I think our wedding photos are just the most amazing thing in the world and I want to sell them to Hallmark to use on Hallmark wedding cards, I can’t do that.

Rich: But that he or she could put them on their website?

Andrew: Yeah. Well our photographer owns the photo … Owns the rights to the photographs.

Andrew: Now, that isn’t necessarily an unlimited, right. That means that he can re-commercialize them, but I certainly can’t commercialize my own wedding-

Rich: Unless you got special permission-

Andrew: Unless I got special permission, yeah. And that’s pretty standard, and it makes sense.

Andrew: But you know, ultimately, yeah, having an agreement with your contractors that either grants you ownership or at least kind of outlines the permissions you have to use that stuff is important. And, a lot of business owners don’t do it because they don’t know they should be doing it. Or, they start doing it once they have that first problem where they have that first person come after them and said, “You know what, I own that. I’m taking it back.”

Yuri: So to prevent any kind of legal issues related to copyright or trademarks, what should we do? You know, do we need to do it before we engage in relationship with? Do we need to just like say that tomorrow I’m going to wake up and I’m going to review all the existing contracts? Like when is the point of reference?

Andrew: Yeah. So it’s certainly best to do it at the onset of a relationship. But that’s being prepared, right?

Andrew: So that’s knowing that you need this. So knowing what medicine you need to take, so to speak and taking it at the appropriate time.

Andrew: However, there’s certainly going to be instances where you realize that you’ve been operating your business for years or for however long, and that you’ve never had contracts in place.

Andrew: So yeah, you can basically re-approach that person be like, “Hey, I want to kind of clarify some things.” Now, I guess the risk of that is the person kind of saying, “No, I’m not going to sign over the rights to this. I never realized that was the case when I was first hired by you.”

Andrew: And that gets to be a sticky situation and frankly that person has a lot of rights to prevent you from claiming ownership of what they created.

Andrew: So yes, certainly best as a company, have a policy, right? That basically says, “Whenever we work with independent contractors, they will sign X, Y, Z documents. And if they want to negotiate certain terms, that’s a big deal and we need to think about that.”

Andrew: But, for the businesses that have been operating and not worrying about that, you can look at your … The breadth of like, “Okay, what have I had people do for my business? Have had any contracts?”

Andrew: If it’s no, that’s … Do I want to look back and try to address that? And get some agreements in place that stipulates … Especially if there’s ongoing work, like if you’re going to have ongoing projects with somebody, it really makes sense to have something in writing.

Yuri: Are there any specific industries that should be more concerned with IP? Or, it depends on the work that is being done?

Andrew: I mean, a lot of this stuff when it comes to just website copy and photographs. I mean that’s pretty broad. I mean every business has a website now and there’s IP in that.

Andrew: Certain businesses, certainly, I mean if you’re inventing new forms of engines, you need to be worried about patent law and that’s a very, very different ballgame than a digital media company, right?

Andrew: So, every company has IP, every one of us has intellectual property. We all are the proud owners of probably thousands of copyrights at least, and maybe a trademark two. So it is fairly applicable.

Andrew: I mean, the good news is for a lot of business owners, this isn’t an expensive thing to address. Again, if you’re an inventor inventing new iterations of major mechanical devices, yeah, you’re probably going to have some pretty high costs when it comes to protecting IP.

Andrew: But, if you’re the business owner that maybe needs a trademark and a contract or two. I mean this is not huge sums of money we’re talking about to protect your business at least at this kind of basic level.

Rich: So Yuri had brought up Instagram a little while ago and obviously social media has changed everything. It is also probably made managing IP more challenging. How do we handle employee photos that get posted to our company Instagram account?

Rich: Because we often do that. Like we have a couple of just excellent smartphone photographers on our team and very often their stuff gets put up to Flights, Instagram account.

Rich: Is that work for hire? … It sounds like they own the copyright by default, but what rights then do I necessarily have? Can they come back and sue me for using their photos on Instagram?

Andrew: So yeah, I’ll back up a little bit and say that, if the … And this is a really important distinction.

Andrew: So if those individuals are employees of your company, the company owns the photographs.

Rich: Even if they took them with their own phone, which they pay for?

Andrew: Yeah. I mean if it’s under your direction.

Rich: Okay.

Andrew: If it’s on company time. If it is a part of their “job”.

Rich: So if I tell Andy to go out and take a picture of the seagulls. Even if it’s on his phone, and we post to Instagram, I own it.

Rich: But, if before the day started and he’s like, I like seagulls and takes a picture and then we end up using it on Instagram, that’s probably then his copyright at that point?.

Andrew: So yeah, I mean it gets a little hazy, right?

Rich: I mean you have to check the timestamp. [crosstalk 00:29:40]

Andrew: And no joke-

Rich: This is why I love IP. I mean, fascinating.

Andrew: And this is why, and we’re talking about big companies, they are going to issue the equipment to their employees. They don’t want to run into this. So they want it to be, “A. When you’re on the clock, 9:00 to 5:00 or whatever, we own what you do, period.” That’s one of the advantages of having employees.

Andrew: Now, a lot of companies go further and say, “Not only do we want you to do, but we’re going to own all this stuff. You do it on. So, here’s your phone, here’s your computer, do not use your personal devices for company work.”

Andrew: Now, a lot of small businesses obviously don’t either have the resources to do that or don’t want to do that. And so the basic rule here is, again, when you’re on company time, when you’re under company direction, if you are an employee, your employer is going to own what you create.

Andrew: Now, yes, if you’re using personal devices, it gets a little hazier, but it’s still pretty well settled that the employer is going to own it. If what you’re doing is part of your scope of your job. And certainly disputes come up about this stuff. And where it gets much murkier is in instances where it’s not employment relationships. So independent contractor relationships, that’s where it does get very, very hazy and you want to have a written contract in place to kind of specify who owns what and when.

Andrew: But for employees, we’re seeing more and more companies also develop social media policies, and having procedures in place basically, to deal with employees who are going to be having social media access because it’s so huge now and you can have a PR disaster snowball very, very quickly if you have an employee with access to your social media that does something that you don’t want them to do. Let alone, who cares about who owns the photo.

Yuri: These are the things that it feels like a little bit under our control. The employees, the equipment, the time.

Yuri: But, what do we do in situations where we’re dealing with the fans and customers? Or maybe those who are not necessarily fond of us, like people that using our IP-

Andrew: Oh, that take it. Yeah, well that’s infringement. I mean, if they’re … I mean, social media is interesting because by design, your images, or at least on Facebook are shareable, right? And so, the expectation is you’re putting something up there for the world to see it and share it.

Andrew: So if you’re like … If you post it-

Rich: But if somebody were to take our brand and say, like take a picture of a Fast Forward Maine logo. Or a National Bank logo, which is probably more likely and just trash it.

Rich: Do we say, “Hey listen, you can’t use our photo or our name in this because you’re infringing on our intellectual property?” Or is that fair use at that point?

Andrew: No. Yeah, perfect segue to fair use. So I mean it depends what using it for. But yeah, I mean if they’ve taken something that you own and by you, talking about the company.

Andrew: So if the company owns it, yeah, they can control its use at the end of the day. Now by putting it on social media, you’re granting rights to the social media platforms and the expectation is this is going to be shared.

Andrew: But if somebody is altering it and sharing it, or using it in a way that reflects very poorly on the company. Yeah, you would probably have rights. And so fair use, that is that comes up a lot.

Andrew: Unfortunately it’s a lot of our clients … Or, I shouldn’t say a lot, but we’re telling people that, “No your use is not fair use. You should probably stop that.”

Andrew: The reason why … People always kind of claim to the fair use argument. And the fair use argument is basically an argument that says, “Yes, this item has copyright protections, but my use is fair use. So I’m allowed to use it.”

Andrew: And the ironic thing is we as children are brought up in a world and the world being school, that is one of the biggest exceptions that qualifies you for fair use out there. And so you basically spend your formative years trashing copyright law and violating copyright law, but you’re doing it on a fair use basis. And so it’s fine, because education is, is one of the uses that is, “fair use”.

Andrew: And so you get into the real world coming out of coming out of school and you’re an entrepreneur, you immediately start your business and it’s like I am just going to use all this content that other companies have created or other individuals have created and grow my business. You are now outside the realm of fair use and you are in your infringing copyrights.

Andrew: So the big takeaway for fair use is that commercial use is not fair use. So if you are a business owner and you are running a business and you are doing something where you take somebody else’s copyright or intellectual property to use it for your own company. You’re basically never going to qualify for fair use.

Andrew: Now, an exception to that is like comparative advertising-

Rich: Ford-

Andrew: Yeah. Like, “Ford or Chevy?” You know, which truck is more horsepower?

Andrew: As long-

Rich: Or Tesla, right?

Andrew: Or the Tesla, better example. So as long as your advertising is truthful in doing that, like verifiably true. It’s like, “You can buy a Ford $1000 less than Chevy.”

Andrew: It’s like that better be true. But, you can say that, like you can do comparative advertising. But you know, you can’t take content that another company created and use it for your own company on on a fair use basis. That just, it’s basically not going to fly.

Andrew: So the big fair use is news, education that kind of like comparative advertising-

Rich: Parody, right?

Andrew: Parody. Yeah.

Rich: So I just want to say that we’ve gone long and I could probably talk to you for another six hours on this. So we definitely … We’ve got somebody waiting in the wings.

Rich: I definitely want to have you back. I definitely want to talk some more about this. I want to find out if I can trademark a recipe. Don’t even tell me because that’s going to be the cliffhanger right there.

Rich: The Opticliff-hanger, if you will. Nice. Right. Did I just infringe on your IP by the way?

Andrew: No way, that’s fair use.

Rich: We do like to ask a question of all of our guests who come on the show. And the question is this, if you could change one thing to improve the business ecosystem here in the state of Maine, what would it be?

Andrew: Yeah, so I think about this issue a lot because it actually … Many of my clients. So [inaudible 00:36:20] board of Startup Maine, which has a focus on kind of building means entrepreneurial ecosystem.

Rich: And we had Katie [crosstalk 00:36:27] .

Andrew: And so I do think about this question a lot and a lot of my own clients in my law practice, they’ll verbalize these two things and it’s something that we just hear time and time, and time again. And it is really, for me it’s an awesome place to have a company and grow a company. The two by far issues we hear most often are access to talent and access to capital.

Andrew: And Maine is a hard place at times to grow your company from a capital raising perspective. So you need to raise $1 million. How do you do that? You could use a bank. You could do traditional bank financing, but if you’re looking for that investment money. If you are a startup that can be harder to acquire here in Maine.

Andrew: And we’re seeing companies realizing that, “Okay, like I want to be in Maine, I love it in Maine, but I need to go to New York, I need to go to Boston, I need to go to San Francisco to get funding.”

Andrew: And so that’s something that I’d love to see changed where there are more institutional investors here that are willing to invest in Maine companies and kind of grow with the Maine companies. And we have organizations that … MTI that are doing that and are just a fantastic resource.

Andrew: But I’d love to see more of that. And then access to talent. Talent begets talent, right? So more and more people are moving to Maine finally, which is awesome. And a lot of those people are high talent individuals, and just kind of bringing in more workers.

Andrew: And it’s everything, I mean it’s across all areas of business where we just need more workers in Maine our employment is crazy low. Everything from restaurants to high tech need workers right now. And so, I’d bring money and people into the state and it call it a success.

Rich: Andrew, this has been great. Where can people learn more about you online?

Andrew: Yeah, our law firm’s website is opticliff.com pretty easy to remember there. And then I’m also involved again with Startup Maine. So startupmaine.org you can kind of find out all about my life through those two things.

Rich: Fantastic. That was a great show. Andrew, this has been fantastic. Thank you so much.

Andrew: It was a pleasure, thank you.

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