August 29, 2024 • 46 mins
This week on Play It Brave, our guest (and D’Arcy’s actual lawyer) Paige Hulse shares valuable insights on crafting airtight contracts, including tips for creating payment plans, copyright assignments, and non-disparagement clauses. She also introduces her brand new cutting-edge AI-powered tool (seriously, this is going to blow your mind!) called the Foundry Contract Builder, part of the Creative Law Shop, which helps business owners like you create customized, legally-binding contracts, line-by-line based on your unique business needs.
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Episode Transcript
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(00:00):
I'm going to ask you a question. Have you ever had somebody breach their contract?
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Have you ever had somebody default payments on a contract? Have you ever had somebody try to get
out of a contract? Have you ever had somebody try to defame you online? Have you ever had a contract
where people came back and wanted to have the copyright of your images or they wanted you
to give them raw files? There's so many different things that can happen legally within the United
(00:27):
States, especially because we are a culture where people get sued and they get sued for a lot of
money and they get sued often and we need legal binding contracts. Also, have you ever been too
nice to uphold a contract? All of these things and more we are diving into in this episode as
I bring on my dear friend, Paige Hulse, who is not only my friend, but she is also my lawyer.
(00:51):
I have used her contracts throughout my business. I've had her review contracts. I've had to go to
her with some sticky situations with clients. I have had hard clients because I photograph in the
wedding world, a lot of lawyers and doctors. So my contract has to be like very, very solid.
And within the coaching industry as well, there's a lot of things that can come up in a coaching
(01:12):
program that can lead to online disparagement. So we're going to dive into all of these things
in the podcast today. And even more importantly, Paige has created something that has never been
created before. And it's a way for you to get customizable contracts. Right now, the templates
are the big thing because everybody doesn't want to pay a lawyer a ton of money to draft up a
(01:35):
contract from scratch. But what Paige has created is an AI component that goes along with her
customizable templates. So you buy one of her contracts, a template, and then with the AI,
you can put all your details in and it will recalculate to give you a very binding legal
(01:55):
contract that will make you look super professional because you are and because contracts are not one
size fit all. So we're going to dive into all of these things and more today on the Play It Brave
podcast. Let's go. You're listening to the Play It Brave podcast. Join D'Arcy for a wild rummage
around in her wit and wisdom. She's a photographer, an educator, and a marketing ninja. Each week,
(02:20):
she's going to be teaching you all about creating a life full of mindset, money, and marketing
miracles. Listen to real-world experiences and surefire strategies from expert guests,
all to keep you focused on your path to success. Think less hand-holding or fist bumps. So stop
playing safe. It's time to start playing it brave. Here's your host, D'Arcy Benincosa.
(02:41):
Thank you so much, D'Arcy, for having me. As we were talking earlier, I cannot believe
how long we've known each other now, and I really appreciate being here. As an introduction for
anybody that I haven't met before, my name is Paige Hulse. I'm an intellectual property
and a contract attorney. I work specifically with online CEOs, primarily creative entrepreneurs,
(03:02):
and have been practicing in this with my law firm since 2017 now. Through the law firm,
we practice, like I said, intellectual property law, and we work as a fractional general counsel
for startups and CEOs around the country, providing that ongoing legal support and
business consultancy and strategy as well. I think it would be really powerful for us to
(03:26):
dive into some of the legal things that coaches, consultants, photographers, wedding professionals
could face. One of the recent ones is a client. It was called Sepia Gate. I was texting you about
it this morning. I'm like, have you heard of Sepia Gate? It's where a photographer took photos
(03:46):
and the bride said that she loved them, and then she came back later and was like,
no, I look orange. I'm this. I want the copyright of these photos, and everything ensued. I want to
your general rule of thumb for giving a client raw files and giving them the copyright. I have
never given raw files and I've never given the copyright. I did have one client. It was a lawyer
(04:11):
who really wanted to buy the copyright. I never ended up selling the copyright. In your mind,
when you sell the copyright, what is that meaning for the client? When you're giving raw photos,
is this a good idea, a bad idea? Do you not have an opinion on that?
Oh, I have an opinion. I have an opinion on that. Let's see. A couple of different ways I want to
(04:38):
attack this. First of all, if I were selling, if I were helping you sell the copyright rights,
I would actually, I've helped people sell the copyright rights to the photos they've taken
at an event or at a wedding. I don't think that's a bad thing. I think that's actually a great
revenue generator. Sometimes that is actually what does, of course, help suit that client's
(04:58):
circumstances. What I would recommend though is that you have a separate copyright assignment
agreement to do so. Within that assignment agreement, I would include limiting language
that says basically what the client can do with the photos in terms of whether or not it's
transferable. That's where we can be a little bit more nuanced because we, of course, and I've
(05:21):
actually had this happen with a client before. She photographed a wedding that was televised
and the bride and then in all of the press and everything afterwards, and the bride
had actually the production agency for this televised wedding required the purchase of the
copyrights. After the fact, we don't know if it was the bride or somebody else. Anytime the photos
(05:42):
were popping up on ABC News or wherever they were popping up, sometimes they had a little bit,
they had a filter on it that my client had not edited. Obviously, it was a misrepresentation
of the client's works. With that being said, I would be open to the idea of selling the client
the copyright rights to photos, but just know that you can. I would recommend that you do
(06:08):
consider putting limiting language in terms of what they can do with those photos.
The limiting language, how much would somebody generally sell a wedding copyright for? Is it
$4,000, $10,000? Does it depend on if the images are going to be used all over the media or if the
client just wants to keep the images solely for themselves? Is that something a lawyer would help
(06:31):
negotiate? Yeah. No, this is a great question. Let's reverse engineer the logic here. If you're
selling the client your copyright rights, you're losing two major rights. One, you're losing the
right to ever be able to go after somebody if they infringe upon, if they copy that work somehow.
Once you relinquish your copyright rights, you just have to sit back and let the client do with
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that what they will. That's issue number one, but issue number two is that you're also losing
the right to publication. You're losing the right to use those photos in your portfolio
or in your marketing. We know, especially this is where I'm stepping on your toes here a little bit
with this advice, but building a portfolio, marketing your photographs. If you shoot 10
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weddings a year, if you give the copyright rights to that client, you just lost 10% of your potential
portfolio for the year. That has a monetary value and that's where we can back into, we have to get
creative with how we back into the numbers, but that's where depending on obviously the scale of
the photography that you're shooting, the types of weddings that you're shooting, etc. If you can
(07:45):
attach a number of how many inquiries you receive per wedding that you publicize, that we can start
to back into numbers in that way. I'm thinking of one client in particular who she shoots between
10 and 15 weddings a year and her wedding package starts at $15,000 and we just negotiated for her,
(08:08):
this wasn't like taking advantage of the client, but we negotiated for her a $30,000 assignment
for the copyright rights to the photos because the, for some factors I'm not going to add in there,
but because the clients did genuinely understand that she was losing that intellectual property
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protection and she was losing the marketing rights to this wedding that would have been a huge asset
in her portfolio based upon who they were. The answer is, it depends, but also you can
put pen to paper and again, reverse engineer and you can back into that logic.
Interesting. Yeah, because I was looking at the sepia gate thing and she sold the couple,
(08:52):
the raw files for 4,000 copyright and then when the client saw the raw files, which are not
edited, which the raws can look bad until you work your magic sometimes, then that also went
sour and I think that worked against her in the situation. What's the difference between releasing
the copyright or having or signing an NDA? When you release the copyright, you're losing
(09:17):
all intellectual property rights. You no longer own those photographs at all. An NDA just simply
states that. With an NDA, you're assuming that the NDA has language around you being able to
use the photographs in a marketing sense. I'm assuming that's where you're going with that.
I've shot weddings with celebrities and they're just like, you can't publish anything from this.
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Think of your rights. Anytime you click that shutter button, think of them two ways. One,
intellectual property, two, marketing, the value that brings to the business.
There's an argument to be made that if you can't publicize any of this-
I've always just charged them the same prices. If they're paying me 12,000, then the NDA is 12,000.
(10:03):
I just kind of double it. Something else I want to hit on really quickly too,
I didn't fully answer this a minute ago. There is a difference in my mind, a very strong difference
between selling somebody or assigning the copyright rights of your photos and selling them the raw
footage or giving them the raw footage. Personally, if I were a photographer, I would want my editing,
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my artistic style, I want that to be the final file that the client receives no matter what,
even if they slap a different filter on it later on. I want that original file
because you never know who actually gets their hands on it. I want that photo to reflect my
portfolio. Again, even if it never sees the light of day. I think that selling somebody the raw
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photos, I know that it happens or the raw footage. I know that it happens. I just personally think
that's a much riskier move. I do too. I would never do it.
The lawyer in me doesn't like to speak in absolutes. I'm not saying I would never do it.
I would never allow a client to do it, but I would be really hard-pressed, really hard-pressed.
(11:16):
I would argue with you before we wrote that. Let's move on to unpaid contracts. I'm a coach
and a woman. I don't know if this is common in coaches who are men or if it's just the
self-help industry in general, but more than anything, I have had clients who say,
sorry, I just can't pay you this month, even though we have signed a contractual agreement
(11:42):
that the payments need to be made. I think the consensus is it's too hard to get the payment
from them, so you just let it go. I have started with last year or maybe it was a year and a half
ago where a client didn't pay. I was like, I'm going to take legal action because this is just
not the way you run a business, even though the very nice person in me really was having a bleeding
(12:05):
heart because they really couldn't pay. They were really struggling financially. I let my emotions
come into my business, but also we had a contract. What are your thoughts or feelings about that?
As a lawyer, do you think we need to be taking the action? I don't know. I guess I just want
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your thoughts and feelings about unpaid contracts, especially in the coaching industry,
the mentorship industry, things like that. Just to clarify, you're talking about people
backing out of or being slow to or failing to make a payment, not asking for a trade.
Yes. One of my particular examples, she couldn't make a monthly payment. I said,
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okay, and I still let her stay in the program. She made smaller payments and all of these things,
and then in the end, she ultimately owed me about $7,000 and it never got paid.
This is where I put on my negotiation hat and view your contract as the chessboard that we
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have to play with in terms of how can you set up the language in your contract so that you're
maneuverable and so that you have different options in those scenarios. Because unfortunately,
that's one of the most common scenarios I see. There are a couple of different strategies that
I employ to help prevent or help at least give us some options and so that I already know what
(13:34):
the letter will say in those scenarios occur. One is how you break up your payment plan.
Sounds like in this scenario, there are monthly payments. This is a little bit different, but
breaking up your payment plan into multiple installments, that's useful for a few reasons.
One, hold off on that because this is where this can get a little heady pretty quickly. But first,
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if you have multiple installments, you can accrue late fees on those multiple installments rather
than the chunks, if you had two payments or something like that. From a negotiation standpoint,
though, the reason why breaking up your payments and having multiple installments is so helpful,
one of the reasons is because when I say that allows us to play chess rather than checkers
(14:20):
with our contract, when you have to send that email to the client saying, hey, you're behind
on this payment, your next payment is due in nine days, whatever that may be. Think of it like a
carrot and a stick, meaning you don't necessarily, and just you being, you don't want to actually
have to lay the hammer down on somebody until you actually have to. So as much as you can provide
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that incentive, even if it is, and I'm just spitballing here, but even if it's something
like we'll waive the late fee on this month on satisfaction of this month and the next month's
no later than date, looking at it like that. And again, just keep in mind that concept of
the carrot and the stick so that the client is not in a position where they can just ghost.
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The other thing to keep in mind, and this is getting really technical, but when we're looking
at breach of contract disputes, which that's where these situations are heading, obviously,
keep in mind your, so your contract should obviously be reflect the governing law of
your jurisdiction. I would take that extra step. And I advise all of my clients to take this extra
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step and look at what the small claims court amount is in your jurisdiction and put yourself.
So for example, where I live, it's $10,000. I would try to put myself in a position where
at a $15,000 year long coaching program, I would break up the payments so that they're in smaller
installments because that would, I'd be more likely to at least, you know, gather that first
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$5,000. And the minute we hit that $10,000 mark, if they do renege on payments, or if they do just
simply fail to pay, then if need be, and I, of course I would, this is never the first option.
This is always our very last ditch resort. But if need be, you have the, I'll say the option,
not the opportunity, but the option to send that final demand letter that says this matter is going
(16:18):
to court if it's not resolved amicably between us no later than date. Any, in any of those
contracts, just some of the little language to look for, obviously we want the language that
says the payments are non-refundable. Non-transferable is the other really important
keyword that I always look for and always recommend that people look for in their contracts
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because you don't want the client to be in any sort of position where they can say,
and it sounds stupid, but I've seen this. I've seen this argument play out at least quarterly.
I see this argument play out. They say, Hey, your coaching program's not for me, but I really like
your masterclass or I want to purchase your course or something like that. I'll make a deal
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with you and I'll transfer the payments from this coaching program, leave the coaching program to
purchase the course or something like that. And that's, or they'll try to act like that's their
right to do so because they have paid you that money already. And they should in their mind,
retroactively decide how that money is going to be spent within your company, which again,
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it's hard for me to even say that with a straight face because some it's because it sounds so
asinine, but that is one of the most common. One of the most common scenarios that I do see,
especially when you have a, like a 12 month coaching program or something like that.
It's yeah, there's that element of having to educate the client in terms of
(17:43):
where that money is actually allowed to go and say, it can be very interesting.
Yeah. I think, I think as women dealing with other women, we maybe have this feeling that we should
be really nice to each other and Oh, okay. Okay. I feel that. And like when we stick to the contract,
(18:04):
we could then have people online say we're difficult or they just were their, their
coaching program sucked. And then people can get angry that we didn't change or alter the contract
and go out and start spewing a lot of unhappy, not being happiness, being just being dissatisfied. I
wanted to ask one more question like that. And then we're going to go on to what to do when people
(18:26):
are dissatisfied and they take it online. So let's say you negotiate a contract, right? Because I
think that sometimes if you are needing seven, but you can negotiate to get four, you just take it
and at least get what you can. But let's say you negotiate past the contract, right? So it's,
they've finished up their contract. The payment should be in. They're not, they're like, I'll make
(18:49):
smaller payment plans. You give them another six months and they still don't do it. How long can
you then take them to court? Will court be like, Oh, you waited too long to try to do this. Or I
guess you just have to keep having them sign a new contract where you're extending the old
payments. Because I feel like that happens a lot too, where people are nice and they try and give
(19:09):
other people time to pay it. And then they don't pay it within the new timeframe. And then it's
so far away from the original that then they just let it go. Okay. You're asking four questions.
No, that's not it. That is, that's a weird compliment. I promise. I want to hit on something
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before I actually answer that though, just going back to your note about especially being women
business owners. One of the reasons why I talk about negotiation so many times or so often,
or at least I feel like I do is because the art of being a female business owner,
the art of being a female lawyer and, and not being a pushover and not being,
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not taking it to the other extreme, but finding that middle route, I swear to you is like the
question of my life. That is what, that is a question that I examine every single day. And
so that is something that I'm very passionate about. And this is where this is part of why
I'm also so passionate about having these proactive conversations because so often we
(20:20):
are faced with scenarios where we, if we just stick to our boundaries, and I don't mean be
hardliners and not be willing to negotiate. That's the exact opposite of what I'm saying.
But what I'm saying is this is why I say, use your contract as a negotiation tool,
because if you've set up those parameters within the contract, then the person in a
speaks the least wins. So it's not a question of you don't have to get into the semantics. You
(20:45):
don't have to get into the feelings. You don't have to get into the arguing against the blistering
emails that they're probably at some point going to send you. You don't have to get into the muck
and then be called over emotional or overreacting or any of those comments that can be thrown our
way. The more that you can simplify the negotiation that you're facing or the potential
(21:09):
dispute that you're facing and just say, Hey, here's black, here's white. Which one are we
going to go with? It's written in the contract here. No, no further discussion needed. We're
both reading the same language. Framing it like that, that's knowledge I wish I could instill in
any business owner that's listening to this. I do too. It's also helpful on the team. I don't
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personally do it. Cassie writes it and she points out the contract and Cassie's so neutral
and it's helpful in that way, but it still sometimes feels tricky, especially when people
have an idea of you. I'm this friendly person that runs this podcast and I'm just happy and
bubbly and then it's okay. But I also uphold my contracts and I also hold a standard and I'm not
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going to be walked on. And I think that, yeah, it can be interesting. It can be interesting.
Exactly. It's just a matter of it's a matter. It's not just about being professional, but
just having to lead with a different side of professionalism than other scenarios may
require. But going back to the four good questions that you accidentally asked.
(22:16):
So a couple of things here. Number one, you pointed out something on accident that I want to
point out to anybody listening. It is dangerous for you to allow
multiple revisions to the payment schedule. You don't want to get into a situation where,
because if we boil it down, like if we go back to our basic, basic, basic of contract law,
(22:40):
a contract is defined as the meeting of the minds. Do we actually, you and I agree to what's on paper
here? You can get into some really wild scenarios where attorneys can get really creative. Like I
can go to town. If I see that someone like, if I'm trying to sue you and I see that, or I'm trying,
I'm representing your client, trying to get out of the contract. And I see that you've allowed
(23:04):
them to revise the payment schedule eight out of the last 10 months or 12 months. I can muddy the
easily and say, what have the parties actually agreed to here? Because you've essentially
superseded your own contract. Is that contract even what's governing this anymore? Seven times
(23:24):
it looks like it hasn't. So that's, so I just want to provide that angle so that the psychology
behind involved there. Second thing I want to hit on is if you do provide somebody with
flexibility regarding like, let's say one or two months payments, that's where you're either,
you are providing, you are amending a contract essentially. Amendments and modifications are
(23:46):
two different things, but you are amending a contract and it needs to be in writing.
And it needs to very specifically state that this is amending and superseding the original agreement.
And now the terms the parties are agreeing to are X, Y, and Z, meaning the new payment provision.
So I want to make sure that people actually have keep that in writing. And when I say in writing,
(24:07):
I don't necessarily mean just keep it in emails. You can get away with that once or twice,
one or two months. But if it's more than that, and this is where you're just as a business owner,
you're going to have to make that judgment call. If it's more than that, put it in actual writing
and require that they sign in. And that's in going back to my previous note about professionalism.
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There's no certain dollar amount that I would say is a benchmark in terms of when it's
gone too far. But just think through, again, this is where we have to, unfortunately, even though
we get into these professions to avoid math, we do at times have to face it. But this is where also
don't let it get so far that you're in a position where you're going to be losing thousands of
(24:53):
dollars and you have to hire someone like me. Even when I get in trouble with my team, because
I try to cut my costs all the time because it's so hard for me to charge somebody who's
in a position like that who is frankly just getting screwed. But don't get in a position
where you have to pay it, but where it gets so hairy and the waters get so muddy that you have
(25:15):
to pay a lawyer thousands of dollars to recoup just $1,000. And that's a really overly generic
statement. But again, you have to know within your business and looking at your numbers where
that line is. Yeah. I think that's an important line for sure. I think that's also why it's a
good idea to know your lawyer cost and have a lawyer that you can ask this kind of question
(25:39):
to. So they can say, hey, this will take this many hours. It'll cost you this much to bring
it to this place. Is that a place? Sometimes I think it's important even if I went through the
lawyer and then maybe didn't make any money, the lawyer was the same as... Sometimes I think it's
an important step for a business owner to just stand up for their business, follow through,
(25:59):
follow the law, uphold the contracts. And that brings me to another question. What if somebody
wants to cancel a contract mid contract? They're either a coaching client or their wedding client
who didn't like their engagement photos and there is changes their mind on that. Or yeah,
they see their engagement photos and then they don't want you to take their wedding photos.
(26:21):
Do you have caveats in there that you can't? And what if you want to get out of the contract too,
but you also think it's pretty unfair to lose the money? Do you have any good
advice or thoughts about that? I would like to think that I do.
I know you do. I say that, but I literally just
wrapped up one of these scenarios yesterday. So again, it's very topical. Okay. If anybody
(26:46):
listening can take one thing away from this conversation, set up your contract so that
you have more than two payments. So that again, using my previous, my now redundant analogy of
we're playing chess, not checkers. It's that cancellation scenario where that really comes
into play. What I would recommend that people do within their cancellation provision is set up
(27:10):
milestones. Meaning let's say you've broken the payments up into four payments. And let's say that
the wedding is 12 months from now. So every quarter they're going to be paying you a certain
amount. So if they cancel between milestone one and three, you retain that first 25% retainer.
If they cancel between milestones two and three, that you retain the first 50% of the payments,
(27:35):
so on and so forth. That's the best. It's really, it sounds overly simplistic, although you'd be
shocked at how much pushback I get on that. People really like, especially in the wedding
industry, people really like the 50% payment situation, but I can't tell you how hard it is
even for me to negotiate with somebody. If, if the client decides the week before the wedding,
(27:57):
that they want to cancel and you've maintained two 50% payment, and we know that you are owed
more money than what you're going to end up getting out of the deal. If you have two 50%
payments, we've lost that carrot and the stick element to the negotiation and they know it.
It's very hard to argue around those. One little tip that I would add, I learned the hard way. So
(28:23):
I will stand on the mountaintop and share it with everybody. Nothing like losing a case in court
because the judge says, Oh, I've decided that you need one half sentence in your termination section
to make it actual, actually viable. And that is requiring a termination or a cancellation
agreement before the event or the contract is actually canceled. Within that cancellation or
(28:47):
termination agreement, you're going to be able to state, and in some courts in my jurisdiction,
that's required to prove that the parties have actually agreed to cancel the agreement.
And I recommend that to any, anybody, any type of service provider, especially in the wedding
industry though. Because anytime we're talking about emotions and negotiations, those are,
(29:15):
we're already talking about a firecracker that can go off. And what I, a few of the elements
within a termination agreement that I always want people to look for is your conditions,
precedents, meaning how much money are you retaining or are you agreeing to refund?
Or how much money are they agreeing to pay you to cancel this agreement? And then you're also
(29:38):
looking at for mutual release language, meaning that they can't come back and sue you or claim,
claim that they have a cause of action against you later on. And then you're also looking for
that non-disparagement clause. And that's something that you hit on with one of your
statements earlier, D'Arcy, but that non-disparagement clause just simply states that
(30:00):
you all are both agreeing that you're not going to, you have a confidentiality clause and a
non-disparagement clause. I get, I like to be overly conservative and include both because I
want it to be in black and white writing that they are agreeing not to go around and slander my client
just because they are salty because they had to make their third payment per the contract prior
(30:23):
to canceling the agreement. And can those be upheld, like the
non-disparagement? Like I've talked to a lot of different lawyers about this, where it's like,
if somebody is defaming you online, it's hard to bring a lawyer into it because you almost have to
show statistically that they have hurt your business, that they have actually hurt clients
from coming in the door because of what they said. Or is that something different? We're just up...
(30:48):
And then what if they do go speak poorly? Then we screenshot it and we bring it to our lawyer and we
remind them in the agreement? So what you're hitting on is more so defamation,
and there is a nuanced difference between defamation and disparagement.
Yeah, the way that we phrase it within those agreements gives us a contractual cause of action
(31:11):
if somebody is then leaving bad Google reviews or I don't know, commenting on,
this is what I commonly see, but commenting on Instagram posts or something to that effect.
Defamation is different. With defamation, you're talking about libel or slander. And the attorneys
that you've talked to are correct in terms of you have to show... There's a four-factor prima facie
(31:34):
element scenario that we have to walk through to even prove defamation. And you do actually have
to show proof of evidence of damages or potential damages to the company. Those cases are very
difficult. At the end of the day, though, if you are facing a true defamation situation, which I
(31:55):
unfortunately have been in that position, if it's true defamation, then by all means, take legal
action and shut it down. If you're dealing with a client, which of course I've dealt with this as
well, but if you're dealing with a client who's just unhappy and is disparaging you for whatever
reason, I'm not saying that you're looking for one Instagram comment to incite you to go
(32:21):
sue them for disparaging you. But if need be, you can collect that. You can
collect those screenshots. You can collect that evidence. And if it continues, then your attorney
is going to be able to send a cease and desist letter. And instead of having to prove that
multi-level prima facie, those elements of defamation against that person, this is where I
(32:45):
would say, hey, you signed a non-disparagement clause in this agreement on this date. Now, again, we're
back to talking about a contract cause of action, breach of contract cause of action.
Slightly different tactics. I do want to make that distinction between disparagement and defamation.
Okay. That's really powerful. That's really good. I think that those are really beautiful.
(33:10):
I don't know. The disparagement one seems like a great thing to put in a contract. I just feel like
the defamation one, we live in this spill the tea culture where, especially when threads came out,
where it almost became popular to just speak really poorly of other people who you feel have wronged
you. I've just never taken part in those kinds of conversations, even if I felt that I've had
(33:31):
a coach that I didn't like, but I took that to him and I let him deal with it. And we
negotiated, organized through him, not just taking it to social media, but we are in that cancel
culture. Have you had anything with cancel culture and the law that you would just put
out there for us to think about in terms of, I don't know, just when the witches come hunting?
(33:56):
I don't know. Yeah, first I will. It's a bad joke. I have joked for years that what I'm really
trying to figure out to invent is like an online restraining order. That would be amazing. That's
what I really need to put my time and energy to, because this actually happened to me a couple
(34:19):
months ago. Some people are always going to surprise us. I had somebody like inquired with
when I say inquired with our firm had emailed or she'd sent some DMS and last quick question,
or she needed free advice real fast and received the response that we can't provide
(34:39):
on licensed device, blah, blah, blah. And then she went on a rampage on social media
and completely went on a rampage talking about our customer service, even though she wasn't a
client and all this stuff. And so I found myself in the position that we're talking about,
which brought a new level of empathy to when I help clients with these scenarios. But
(35:03):
this is where, again, first and foremost, have an attorney that you could reach out to
within your jurisdiction. If something like that does occur, because a good attorney is going to
shoot you straight and say, Hey, D'Arcy, this sucks. This, but this is going to cost $10,000
(35:23):
at least to fight. It's not really a clear cut case of defamation. And so you're going to waste
your money. You're going to waste your money on me fighting it for you. Those are hard conversations,
but that's, those are like, those are the right conversations that unfortunately I do have with
people. Sometimes I just had a client who somebody was using her was improperly using her trademark.
(35:44):
And my client sent a really kind Instagram messages, like a, not a cease and desist,
but like, Hey, I'm sure you aren't aware, but you're using my trademark improperly.
The recipient screenshotted it, redacted parts of it. And then it went viral because
she, even though she was an educator, she was actually a trademark bully. So she literally
(36:06):
was in that position where all of a sudden, like you said, the witches came hunting.
And some of the tough advice that I had to give her in that scenario was we're talking about a
larger reputation element at play. We're looking at this, not just from a legal lens, but from a
business lens, just as much. And when looking at it from a business lens, sometimes, sometimes,
(36:31):
I'm not saying I don't want this to be taken out of context, but sometimes fighting is going to
cause more reputational damage. And you have to have that 10,000 foot. You have to have either
yourself or somebody that you trust who can be an advocate, who can provide that calm,
cool and collected 10,000 foot perspective. No, which scenario is worth fighting in which is not.
(36:58):
I have had some people reach out to me and say, doesn't it create, or am I losing rights? If I
continue or allow people to just post whatever they want without taking action against them.
And no, you're not losing any rights that you are not losing any rights whatsoever. It's not like
people all of a sudden get the right to criticize you just because you allow it for so long.
(37:24):
But this is where I said it earlier. I'm going to say it again. Whoever speaks the most in a
negotiation loses generally speaking. And I've been hit with, I've been slandered pretty badly
a couple of times in my career. And I'm one of those people that when I speak, it's going to
(37:46):
matter. You're not, I'm not someone who's going to just sit and talk a lot in general. If I speak up
and if I put my foot down about something, it's going to, it is going to matter. And it's going
to stop that event. And generally speaking with my clients who might receive that, especially like
you said, with social media, where people just take too many creative liberties when it comes to
(38:07):
what they want to do with somebody's reputation. You can ride that line of rise. I don't want to
even say rising above it, but I do agree with that though. I think I've been in business a
really long time. There are going to be people who I had a re it's not recent, but it keeps popping
up because she keeps saying all of these things that aren't true. And I have the exact proof that
(38:30):
they're not true. I have all of her forms that she submitted that said the pro all of, and I'm
like, I have all, I'm like, everything she's saying is not what she said to me. And I have this
and it's, but what would it do for my reputation to be like, Hey guys, here's the truth. Here's
her thing. Here's the, everything she's saying isn't true. I just know the truth for me, my,
(38:52):
my version of the truth and also the truth she gave to me. And it's, I just, I'm going to let
the truth play out. I'm just going to let, if people are drawn to that story, drawn to that
energy, drawn to where she is perfect, they're probably not for me. And I'm going to, whether
it's rise above it or just, I sit with myself and think, do I have anything to defend here? Am I,
(39:13):
should I be defensive about this? And I do think that defensiveness is matching that energy of
what they're putting out there in a way, not to say that there are not times where you should
stand up for yourself. I think it's a tricky place to know how to stand up for yourself without,
I don't want to throw other people under the bus. I don't want to bring personal stories into it.
I feel like the conversation should be had with the person, with the two people instead of her
(39:37):
with the whole world or whatever. But at the end of the day, I can't really control that.
I just think it's really interesting in the creative world. I've coached a lot of people who
have had one person did this amazing shoot. I helped her review the shoot and she came up with
the idea and she shot it. And then literally a week later, another photographer, she didn't
know about, I didn't know about, was like, you stole my shoot. Oh wow. No, we never even saw
(40:02):
your shoot. And they were similar looking. What do you do? There are those things where
people think a cease and desist, you're taking this idea. And it's like, I don't even know who
you are. I think those things really do happen in the creative world, unfortunately.
And then I think copying absolutely happens also. And there's not a whole lot you can do about that
except for continuing to be innovative. But I think the point of it, contract wording,
(40:26):
the contract language, having these specific contracts, you were talking to me about somebody
who needed more of a bespoke contract from you, but they had to get on your wait list
and they had to wait two months to get this updated contract where as with the AI software
that you've created, people are able to go in, put in the scenarios and the AI is going to
(40:48):
generate the exact contract that they need that will be very specific and nuanced to the situation
that they are in, which is mind blowing. When I read about it, you guys, I'm going to post the
link to read about this in the show notes. Paige, when can we buy this and where can we sign up?
Thank you so much for asking that. One thing I want to add real quick too that I'm excited about
(41:10):
when it comes to this, one of the elements to this platform, I trained a chat bot on all of my
negotiations, all of my redacted cease and desist and demand letters and different client questions
that came in and my own negotiation handbook that I use to train my team and my mentees and things
like that. So my hope is that's another element, a non-contractual element of this platform that
(41:36):
people can use to help in these types of really tricky scenarios. But so it actually, the platform
launches, it actually launches as of the day of us recording this, it'll launch tomorrow.
Fingers crossed that we don't have any more tech glitches when it comes to that. But yeah, V1 is
launching this summer, which means that V1 is defined as all of our client agreements. V2 is
(41:58):
going to be launching in October. So that just means the remainder of all of the contracts that
currently exist in the Creative Law Shop. And when people come to the Creative Law Shop,
so this platform, I've named it the Foundry. So this is just the name of the actual software
itself. You're still going to go to the Creative Law Shop website, and now you're going to have
(42:18):
the option of downloading the template or downloading the template and also using the
Foundry as well. So it's because sometimes you do actually just need to have a contract template
that you can keep on your desktop and utilize it. No, it's really helpful. And it gives you
the outline of what to even think about in the situation that you need. And then you could go
(42:39):
into the AI and really fine tune it, which I think is just a brilliant, both of those are such good
tools. It's basically like we all get access to you. I'm joking, I've created something.
I've created, I've literally replicated myself as much as possible and provided that because every
(43:00):
explanation to every single line of every single contract that I could possibly provide, even the
answers to questions that people don't know to ask, it's all in there. Like everything in my
brain regarding these contracts is in that software. And it's just sitting there ready
for whoever wants to use it. That sounds like a dream because I pick your brain all the time
(43:23):
about every situation. So I'm excited to dive in tomorrow. I've got some, I'm going to go up,
up-level my non-disparagement clause, take a look more into that. Just look into more things that
as the world becomes more cancel culture and I don't know, just witch hunting and things like
that. Not that I want to give a lot of attention to that. I just think it's really important to
(43:46):
know how to have a solid contract and not be afraid to uphold the contract. And that's what
they're there for. They're there to have each party know exactly what they're agreeing upon,
right? Nobody's not aware of what they're signing and to hold to that agreement. And I think that
is accountability and responsibility and it's maturity and it's all the things. So we need to
(44:08):
make sure we have those elements in our business to make our business one of those things that we
don't have to, it just takes away a lot of the worry because you do have yourself covered for
the situations that you need. And that is one thing I do really love. I love the law and I
love a good contract. One thing I want to add really quickly, D'Arcy is, is I'm not going to
(44:30):
be so Pollyannish to say the truth always comes out because it doesn't. That's just a reality.
It doesn't, but integrity over time shows itself and that consistency with your, with repeated
professionalism and the way that you treat people and the people that flock to you, that want to
work with you, that continue working with you, that you have that longevity of relationships with
(44:53):
that eventually does paint a story or paint a narrative that non-action can paint a more
powerful narrative than taking quick heated action in the moment. If somebody is online,
just trying to stir the pot, just because they're looking for that click bait and that little,
that all those reactions, just all of that crap. So that's just one thing I want to add.
(45:17):
I love that. I just wrote that down. Thank you. And I think that is a powerful lesson for all
of us who are in business for a very long time to learn and to learn that, yeah, that it is that
consistent energy. Not that we don't all make mistakes and we can forgive ourselves for those
mistakes and we can do our best to recover from the mistakes, but also how much we are showing up
(45:37):
in our own integrity and willingness to serve and wanting good results for our clients. And the
thing that's at the heart of what we both do and what I think most business owners do. So I think
that's such a beautiful reminder. I could ask you questions all day long. We should pop back on one
day and do a Q and a, because I'll ask the audience right now, if you guys have a legal
question that you didn't get answered that you would like to hear on the podcast, we'll have
(46:01):
Paige back again. We'll get those answers, but until then, make sure you check out the Creative
Law Shop with the new AI and app component, which will be listed in the show notes here.
You can also DM me on Instagram. It's also listed on the website as well, because we
love the Creative Law Shop and we will use you forever and ever.
Thank you so much. I really enjoyed this conversation.
(46:21):
Always good to have you, Paige. Always good to see you.
You've been listening to the Play It Brave podcast. Love what you heard. Wonderful.
You can shout about it in the reviews. I bet you know someone who needs a shot of self-belief.
Then don't keep us a secret. If you've missed something crucial, we've got show notes for this
and all past episodes over at darcybenincosa.com forward slash play it brave. Thanks for tuning in.
(46:45):
But don't forget the world teaches you to play it safe. Stand up, stand out and start playing it brave.
I'm going to ask you a question. Have you ever had somebody breach their contract?
(00:03):
Have you ever had somebody default payments on a contract? Have you ever had somebody try to get
out of a contract? Have you ever had somebody try to defame you online? Have you ever had a contract
where people came back and wanted to have the copyright of your images or they wanted you
to give them raw files? There's so many different things that can happen legally within the United
(00:27):
States, especially because we are a culture where people get sued and they get sued for a lot of
money and they get sued often and we need legal binding contracts. Also, have you ever been too
nice to uphold a contract? All of these things and more we are diving into in this episode as
I bring on my dear friend, Paige Hulse, who is not only my friend, but she is also my lawyer.
(00:51):
I have used her contracts throughout my business. I've had her review contracts. I've had to go to
her with some sticky situations with clients. I have had hard clients because I photograph in the
wedding world, a lot of lawyers and doctors. So my contract has to be like very, very solid.
And within the coaching industry as well, there's a lot of things that can come up in a coaching
(01:12):
program that can lead to online disparagement. So we're going to dive into all of these things
in the podcast today. And even more importantly, Paige has created something that has never been
created before. And it's a way for you to get customizable contracts. Right now, the templates
are the big thing because everybody doesn't want to pay a lawyer a ton of money to draft up a
(01:35):
contract from scratch. But what Paige has created is an AI component that goes along with her
customizable templates. So you buy one of her contracts, a template, and then with the AI,
you can put all your details in and it will recalculate to give you a very binding legal
(01:55):
contract that will make you look super professional because you are and because contracts are not one
size fit all. So we're going to dive into all of these things and more today on the Play It Brave
podcast. Let's go. You're listening to the Play It Brave podcast. Join D'Arcy for a wild rummage
around in her wit and wisdom. She's a photographer, an educator, and a marketing ninja. Each week,
(02:20):
she's going to be teaching you all about creating a life full of mindset, money, and marketing
miracles. Listen to real-world experiences and surefire strategies from expert guests,
all to keep you focused on your path to success. Think less hand-holding or fist bumps. So stop
playing safe. It's time to start playing it brave. Here's your host, D'Arcy Benincosa.
(02:41):
Thank you so much, D'Arcy, for having me. As we were talking earlier, I cannot believe
how long we've known each other now, and I really appreciate being here. As an introduction for
anybody that I haven't met before, my name is Paige Hulse. I'm an intellectual property
and a contract attorney. I work specifically with online CEOs, primarily creative entrepreneurs,
(03:02):
and have been practicing in this with my law firm since 2017 now. Through the law firm,
we practice, like I said, intellectual property law, and we work as a fractional general counsel
for startups and CEOs around the country, providing that ongoing legal support and
business consultancy and strategy as well. I think it would be really powerful for us to
(03:26):
dive into some of the legal things that coaches, consultants, photographers, wedding professionals
could face. One of the recent ones is a client. It was called Sepia Gate. I was texting you about
it this morning. I'm like, have you heard of Sepia Gate? It's where a photographer took photos
(03:46):
and the bride said that she loved them, and then she came back later and was like,
no, I look orange. I'm this. I want the copyright of these photos, and everything ensued. I want to
your general rule of thumb for giving a client raw files and giving them the copyright. I have
never given raw files and I've never given the copyright. I did have one client. It was a lawyer
(04:11):
who really wanted to buy the copyright. I never ended up selling the copyright. In your mind,
when you sell the copyright, what is that meaning for the client? When you're giving raw photos,
is this a good idea, a bad idea? Do you not have an opinion on that?
Oh, I have an opinion. I have an opinion on that. Let's see. A couple of different ways I want to
(04:38):
attack this. First of all, if I were selling, if I were helping you sell the copyright rights,
I would actually, I've helped people sell the copyright rights to the photos they've taken
at an event or at a wedding. I don't think that's a bad thing. I think that's actually a great
revenue generator. Sometimes that is actually what does, of course, help suit that client's
(04:58):
circumstances. What I would recommend though is that you have a separate copyright assignment
agreement to do so. Within that assignment agreement, I would include limiting language
that says basically what the client can do with the photos in terms of whether or not it's
transferable. That's where we can be a little bit more nuanced because we, of course, and I've
(05:21):
actually had this happen with a client before. She photographed a wedding that was televised
and the bride and then in all of the press and everything afterwards, and the bride
had actually the production agency for this televised wedding required the purchase of the
copyrights. After the fact, we don't know if it was the bride or somebody else. Anytime the photos
(05:42):
were popping up on ABC News or wherever they were popping up, sometimes they had a little bit,
they had a filter on it that my client had not edited. Obviously, it was a misrepresentation
of the client's works. With that being said, I would be open to the idea of selling the client
the copyright rights to photos, but just know that you can. I would recommend that you do
(06:08):
consider putting limiting language in terms of what they can do with those photos.
The limiting language, how much would somebody generally sell a wedding copyright for? Is it
$4,000, $10,000? Does it depend on if the images are going to be used all over the media or if the
client just wants to keep the images solely for themselves? Is that something a lawyer would help
(06:31):
negotiate? Yeah. No, this is a great question. Let's reverse engineer the logic here. If you're
selling the client your copyright rights, you're losing two major rights. One, you're losing the
right to ever be able to go after somebody if they infringe upon, if they copy that work somehow.
Once you relinquish your copyright rights, you just have to sit back and let the client do with
(06:58):
that what they will. That's issue number one, but issue number two is that you're also losing
the right to publication. You're losing the right to use those photos in your portfolio
or in your marketing. We know, especially this is where I'm stepping on your toes here a little bit
with this advice, but building a portfolio, marketing your photographs. If you shoot 10
(07:20):
weddings a year, if you give the copyright rights to that client, you just lost 10% of your potential
portfolio for the year. That has a monetary value and that's where we can back into, we have to get
creative with how we back into the numbers, but that's where depending on obviously the scale of
the photography that you're shooting, the types of weddings that you're shooting, etc. If you can
(07:45):
attach a number of how many inquiries you receive per wedding that you publicize, that we can start
to back into numbers in that way. I'm thinking of one client in particular who she shoots between
10 and 15 weddings a year and her wedding package starts at $15,000 and we just negotiated for her,
(08:08):
this wasn't like taking advantage of the client, but we negotiated for her a $30,000 assignment
for the copyright rights to the photos because the, for some factors I'm not going to add in there,
but because the clients did genuinely understand that she was losing that intellectual property
(08:29):
protection and she was losing the marketing rights to this wedding that would have been a huge asset
in her portfolio based upon who they were. The answer is, it depends, but also you can
put pen to paper and again, reverse engineer and you can back into that logic.
Interesting. Yeah, because I was looking at the sepia gate thing and she sold the couple,
(08:52):
the raw files for 4,000 copyright and then when the client saw the raw files, which are not
edited, which the raws can look bad until you work your magic sometimes, then that also went
sour and I think that worked against her in the situation. What's the difference between releasing
the copyright or having or signing an NDA? When you release the copyright, you're losing
(09:17):
all intellectual property rights. You no longer own those photographs at all. An NDA just simply
states that. With an NDA, you're assuming that the NDA has language around you being able to
use the photographs in a marketing sense. I'm assuming that's where you're going with that.
I've shot weddings with celebrities and they're just like, you can't publish anything from this.
(09:42):
Think of your rights. Anytime you click that shutter button, think of them two ways. One,
intellectual property, two, marketing, the value that brings to the business.
There's an argument to be made that if you can't publicize any of this-
I've always just charged them the same prices. If they're paying me 12,000, then the NDA is 12,000.
(10:03):
I just kind of double it. Something else I want to hit on really quickly too,
I didn't fully answer this a minute ago. There is a difference in my mind, a very strong difference
between selling somebody or assigning the copyright rights of your photos and selling them the raw
footage or giving them the raw footage. Personally, if I were a photographer, I would want my editing,
(10:28):
my artistic style, I want that to be the final file that the client receives no matter what,
even if they slap a different filter on it later on. I want that original file
because you never know who actually gets their hands on it. I want that photo to reflect my
portfolio. Again, even if it never sees the light of day. I think that selling somebody the raw
(10:50):
photos, I know that it happens or the raw footage. I know that it happens. I just personally think
that's a much riskier move. I do too. I would never do it.
The lawyer in me doesn't like to speak in absolutes. I'm not saying I would never do it.
I would never allow a client to do it, but I would be really hard-pressed, really hard-pressed.
(11:16):
I would argue with you before we wrote that. Let's move on to unpaid contracts. I'm a coach
and a woman. I don't know if this is common in coaches who are men or if it's just the
self-help industry in general, but more than anything, I have had clients who say,
sorry, I just can't pay you this month, even though we have signed a contractual agreement
(11:42):
that the payments need to be made. I think the consensus is it's too hard to get the payment
from them, so you just let it go. I have started with last year or maybe it was a year and a half
ago where a client didn't pay. I was like, I'm going to take legal action because this is just
not the way you run a business, even though the very nice person in me really was having a bleeding
(12:05):
heart because they really couldn't pay. They were really struggling financially. I let my emotions
come into my business, but also we had a contract. What are your thoughts or feelings about that?
As a lawyer, do you think we need to be taking the action? I don't know. I guess I just want
(12:25):
your thoughts and feelings about unpaid contracts, especially in the coaching industry,
the mentorship industry, things like that. Just to clarify, you're talking about people
backing out of or being slow to or failing to make a payment, not asking for a trade.
Yes. One of my particular examples, she couldn't make a monthly payment. I said,
(12:46):
okay, and I still let her stay in the program. She made smaller payments and all of these things,
and then in the end, she ultimately owed me about $7,000 and it never got paid.
This is where I put on my negotiation hat and view your contract as the chessboard that we
(13:09):
have to play with in terms of how can you set up the language in your contract so that you're
maneuverable and so that you have different options in those scenarios. Because unfortunately,
that's one of the most common scenarios I see. There are a couple of different strategies that
I employ to help prevent or help at least give us some options and so that I already know what
(13:34):
the letter will say in those scenarios occur. One is how you break up your payment plan.
Sounds like in this scenario, there are monthly payments. This is a little bit different, but
breaking up your payment plan into multiple installments, that's useful for a few reasons.
One, hold off on that because this is where this can get a little heady pretty quickly. But first,
(13:57):
if you have multiple installments, you can accrue late fees on those multiple installments rather
than the chunks, if you had two payments or something like that. From a negotiation standpoint,
though, the reason why breaking up your payments and having multiple installments is so helpful,
one of the reasons is because when I say that allows us to play chess rather than checkers
(14:20):
with our contract, when you have to send that email to the client saying, hey, you're behind
on this payment, your next payment is due in nine days, whatever that may be. Think of it like a
carrot and a stick, meaning you don't necessarily, and just you being, you don't want to actually
have to lay the hammer down on somebody until you actually have to. So as much as you can provide
(14:45):
that incentive, even if it is, and I'm just spitballing here, but even if it's something
like we'll waive the late fee on this month on satisfaction of this month and the next month's
no later than date, looking at it like that. And again, just keep in mind that concept of
the carrot and the stick so that the client is not in a position where they can just ghost.
(15:10):
The other thing to keep in mind, and this is getting really technical, but when we're looking
at breach of contract disputes, which that's where these situations are heading, obviously,
keep in mind your, so your contract should obviously be reflect the governing law of
your jurisdiction. I would take that extra step. And I advise all of my clients to take this extra
(15:32):
step and look at what the small claims court amount is in your jurisdiction and put yourself.
So for example, where I live, it's $10,000. I would try to put myself in a position where
at a $15,000 year long coaching program, I would break up the payments so that they're in smaller
installments because that would, I'd be more likely to at least, you know, gather that first
(15:55):
$5,000. And the minute we hit that $10,000 mark, if they do renege on payments, or if they do just
simply fail to pay, then if need be, and I, of course I would, this is never the first option.
This is always our very last ditch resort. But if need be, you have the, I'll say the option,
not the opportunity, but the option to send that final demand letter that says this matter is going
(16:18):
to court if it's not resolved amicably between us no later than date. Any, in any of those
contracts, just some of the little language to look for, obviously we want the language that
says the payments are non-refundable. Non-transferable is the other really important
keyword that I always look for and always recommend that people look for in their contracts
(16:39):
because you don't want the client to be in any sort of position where they can say,
and it sounds stupid, but I've seen this. I've seen this argument play out at least quarterly.
I see this argument play out. They say, Hey, your coaching program's not for me, but I really like
your masterclass or I want to purchase your course or something like that. I'll make a deal
(17:00):
with you and I'll transfer the payments from this coaching program, leave the coaching program to
purchase the course or something like that. And that's, or they'll try to act like that's their
right to do so because they have paid you that money already. And they should in their mind,
retroactively decide how that money is going to be spent within your company, which again,
(17:22):
it's hard for me to even say that with a straight face because some it's because it sounds so
asinine, but that is one of the most common. One of the most common scenarios that I do see,
especially when you have a, like a 12 month coaching program or something like that.
It's yeah, there's that element of having to educate the client in terms of
(17:43):
where that money is actually allowed to go and say, it can be very interesting.
Yeah. I think, I think as women dealing with other women, we maybe have this feeling that we should
be really nice to each other and Oh, okay. Okay. I feel that. And like when we stick to the contract,
(18:04):
we could then have people online say we're difficult or they just were their, their
coaching program sucked. And then people can get angry that we didn't change or alter the contract
and go out and start spewing a lot of unhappy, not being happiness, being just being dissatisfied. I
wanted to ask one more question like that. And then we're going to go on to what to do when people
(18:26):
are dissatisfied and they take it online. So let's say you negotiate a contract, right? Because I
think that sometimes if you are needing seven, but you can negotiate to get four, you just take it
and at least get what you can. But let's say you negotiate past the contract, right? So it's,
they've finished up their contract. The payment should be in. They're not, they're like, I'll make
(18:49):
smaller payment plans. You give them another six months and they still don't do it. How long can
you then take them to court? Will court be like, Oh, you waited too long to try to do this. Or I
guess you just have to keep having them sign a new contract where you're extending the old
payments. Because I feel like that happens a lot too, where people are nice and they try and give
(19:09):
other people time to pay it. And then they don't pay it within the new timeframe. And then it's
so far away from the original that then they just let it go. Okay. You're asking four questions.
No, that's not it. That is, that's a weird compliment. I promise. I want to hit on something
(19:31):
before I actually answer that though, just going back to your note about especially being women
business owners. One of the reasons why I talk about negotiation so many times or so often,
or at least I feel like I do is because the art of being a female business owner,
the art of being a female lawyer and, and not being a pushover and not being,
(19:54):
not taking it to the other extreme, but finding that middle route, I swear to you is like the
question of my life. That is what, that is a question that I examine every single day. And
so that is something that I'm very passionate about. And this is where this is part of why
I'm also so passionate about having these proactive conversations because so often we
(20:20):
are faced with scenarios where we, if we just stick to our boundaries, and I don't mean be
hardliners and not be willing to negotiate. That's the exact opposite of what I'm saying.
But what I'm saying is this is why I say, use your contract as a negotiation tool,
because if you've set up those parameters within the contract, then the person in a
speaks the least wins. So it's not a question of you don't have to get into the semantics. You
(20:45):
don't have to get into the feelings. You don't have to get into the arguing against the blistering
emails that they're probably at some point going to send you. You don't have to get into the muck
and then be called over emotional or overreacting or any of those comments that can be thrown our
way. The more that you can simplify the negotiation that you're facing or the potential
(21:09):
dispute that you're facing and just say, Hey, here's black, here's white. Which one are we
going to go with? It's written in the contract here. No, no further discussion needed. We're
both reading the same language. Framing it like that, that's knowledge I wish I could instill in
any business owner that's listening to this. I do too. It's also helpful on the team. I don't
(21:30):
personally do it. Cassie writes it and she points out the contract and Cassie's so neutral
and it's helpful in that way, but it still sometimes feels tricky, especially when people
have an idea of you. I'm this friendly person that runs this podcast and I'm just happy and
bubbly and then it's okay. But I also uphold my contracts and I also hold a standard and I'm not
(21:53):
going to be walked on. And I think that, yeah, it can be interesting. It can be interesting.
Exactly. It's just a matter of it's a matter. It's not just about being professional, but
just having to lead with a different side of professionalism than other scenarios may
require. But going back to the four good questions that you accidentally asked.
(22:16):
So a couple of things here. Number one, you pointed out something on accident that I want to
point out to anybody listening. It is dangerous for you to allow
multiple revisions to the payment schedule. You don't want to get into a situation where,
because if we boil it down, like if we go back to our basic, basic, basic of contract law,
(22:40):
a contract is defined as the meeting of the minds. Do we actually, you and I agree to what's on paper
here? You can get into some really wild scenarios where attorneys can get really creative. Like I
can go to town. If I see that someone like, if I'm trying to sue you and I see that, or I'm trying,
I'm representing your client, trying to get out of the contract. And I see that you've allowed
(23:04):
them to revise the payment schedule eight out of the last 10 months or 12 months. I can muddy the
easily and say, what have the parties actually agreed to here? Because you've essentially
superseded your own contract. Is that contract even what's governing this anymore? Seven times
(23:24):
it looks like it hasn't. So that's, so I just want to provide that angle so that the psychology
behind involved there. Second thing I want to hit on is if you do provide somebody with
flexibility regarding like, let's say one or two months payments, that's where you're either,
you are providing, you are amending a contract essentially. Amendments and modifications are
(23:46):
two different things, but you are amending a contract and it needs to be in writing.
And it needs to very specifically state that this is amending and superseding the original agreement.
And now the terms the parties are agreeing to are X, Y, and Z, meaning the new payment provision.
So I want to make sure that people actually have keep that in writing. And when I say in writing,
(24:07):
I don't necessarily mean just keep it in emails. You can get away with that once or twice,
one or two months. But if it's more than that, and this is where you're just as a business owner,
you're going to have to make that judgment call. If it's more than that, put it in actual writing
and require that they sign in. And that's in going back to my previous note about professionalism.
(24:29):
There's no certain dollar amount that I would say is a benchmark in terms of when it's
gone too far. But just think through, again, this is where we have to, unfortunately, even though
we get into these professions to avoid math, we do at times have to face it. But this is where also
don't let it get so far that you're in a position where you're going to be losing thousands of
(24:53):
dollars and you have to hire someone like me. Even when I get in trouble with my team, because
I try to cut my costs all the time because it's so hard for me to charge somebody who's
in a position like that who is frankly just getting screwed. But don't get in a position
where you have to pay it, but where it gets so hairy and the waters get so muddy that you have
(25:15):
to pay a lawyer thousands of dollars to recoup just $1,000. And that's a really overly generic
statement. But again, you have to know within your business and looking at your numbers where
that line is. Yeah. I think that's an important line for sure. I think that's also why it's a
good idea to know your lawyer cost and have a lawyer that you can ask this kind of question
(25:39):
to. So they can say, hey, this will take this many hours. It'll cost you this much to bring
it to this place. Is that a place? Sometimes I think it's important even if I went through the
lawyer and then maybe didn't make any money, the lawyer was the same as... Sometimes I think it's
an important step for a business owner to just stand up for their business, follow through,
(25:59):
follow the law, uphold the contracts. And that brings me to another question. What if somebody
wants to cancel a contract mid contract? They're either a coaching client or their wedding client
who didn't like their engagement photos and there is changes their mind on that. Or yeah,
they see their engagement photos and then they don't want you to take their wedding photos.
(26:21):
Do you have caveats in there that you can't? And what if you want to get out of the contract too,
but you also think it's pretty unfair to lose the money? Do you have any good
advice or thoughts about that? I would like to think that I do.
I know you do. I say that, but I literally just
wrapped up one of these scenarios yesterday. So again, it's very topical. Okay. If anybody
(26:46):
listening can take one thing away from this conversation, set up your contract so that
you have more than two payments. So that again, using my previous, my now redundant analogy of
we're playing chess, not checkers. It's that cancellation scenario where that really comes
into play. What I would recommend that people do within their cancellation provision is set up
(27:10):
milestones. Meaning let's say you've broken the payments up into four payments. And let's say that
the wedding is 12 months from now. So every quarter they're going to be paying you a certain
amount. So if they cancel between milestone one and three, you retain that first 25% retainer.
If they cancel between milestones two and three, that you retain the first 50% of the payments,
(27:35):
so on and so forth. That's the best. It's really, it sounds overly simplistic, although you'd be
shocked at how much pushback I get on that. People really like, especially in the wedding
industry, people really like the 50% payment situation, but I can't tell you how hard it is
even for me to negotiate with somebody. If, if the client decides the week before the wedding,
(27:57):
that they want to cancel and you've maintained two 50% payment, and we know that you are owed
more money than what you're going to end up getting out of the deal. If you have two 50%
payments, we've lost that carrot and the stick element to the negotiation and they know it.
It's very hard to argue around those. One little tip that I would add, I learned the hard way. So
(28:23):
I will stand on the mountaintop and share it with everybody. Nothing like losing a case in court
because the judge says, Oh, I've decided that you need one half sentence in your termination section
to make it actual, actually viable. And that is requiring a termination or a cancellation
agreement before the event or the contract is actually canceled. Within that cancellation or
(28:47):
termination agreement, you're going to be able to state, and in some courts in my jurisdiction,
that's required to prove that the parties have actually agreed to cancel the agreement.
And I recommend that to any, anybody, any type of service provider, especially in the wedding
industry though. Because anytime we're talking about emotions and negotiations, those are,
(29:15):
we're already talking about a firecracker that can go off. And what I, a few of the elements
within a termination agreement that I always want people to look for is your conditions,
precedents, meaning how much money are you retaining or are you agreeing to refund?
Or how much money are they agreeing to pay you to cancel this agreement? And then you're also
(29:38):
looking at for mutual release language, meaning that they can't come back and sue you or claim,
claim that they have a cause of action against you later on. And then you're also looking for
that non-disparagement clause. And that's something that you hit on with one of your
statements earlier, D'Arcy, but that non-disparagement clause just simply states that
(30:00):
you all are both agreeing that you're not going to, you have a confidentiality clause and a
non-disparagement clause. I get, I like to be overly conservative and include both because I
want it to be in black and white writing that they are agreeing not to go around and slander my client
just because they are salty because they had to make their third payment per the contract prior
(30:23):
to canceling the agreement. And can those be upheld, like the
non-disparagement? Like I've talked to a lot of different lawyers about this, where it's like,
if somebody is defaming you online, it's hard to bring a lawyer into it because you almost have to
show statistically that they have hurt your business, that they have actually hurt clients
from coming in the door because of what they said. Or is that something different? We're just up...
(30:48):
And then what if they do go speak poorly? Then we screenshot it and we bring it to our lawyer and we
remind them in the agreement? So what you're hitting on is more so defamation,
and there is a nuanced difference between defamation and disparagement.
Yeah, the way that we phrase it within those agreements gives us a contractual cause of action
(31:11):
if somebody is then leaving bad Google reviews or I don't know, commenting on,
this is what I commonly see, but commenting on Instagram posts or something to that effect.
Defamation is different. With defamation, you're talking about libel or slander. And the attorneys
that you've talked to are correct in terms of you have to show... There's a four-factor prima facie
(31:34):
element scenario that we have to walk through to even prove defamation. And you do actually have
to show proof of evidence of damages or potential damages to the company. Those cases are very
difficult. At the end of the day, though, if you are facing a true defamation situation, which I
(31:55):
unfortunately have been in that position, if it's true defamation, then by all means, take legal
action and shut it down. If you're dealing with a client, which of course I've dealt with this as
well, but if you're dealing with a client who's just unhappy and is disparaging you for whatever
reason, I'm not saying that you're looking for one Instagram comment to incite you to go
(32:21):
sue them for disparaging you. But if need be, you can collect that. You can
collect those screenshots. You can collect that evidence. And if it continues, then your attorney
is going to be able to send a cease and desist letter. And instead of having to prove that
multi-level prima facie, those elements of defamation against that person, this is where I
(32:45):
would say, hey, you signed a non-disparagement clause in this agreement on this date. Now, again, we're
back to talking about a contract cause of action, breach of contract cause of action.
Slightly different tactics. I do want to make that distinction between disparagement and defamation.
Okay. That's really powerful. That's really good. I think that those are really beautiful.
(33:10):
I don't know. The disparagement one seems like a great thing to put in a contract. I just feel like
the defamation one, we live in this spill the tea culture where, especially when threads came out,
where it almost became popular to just speak really poorly of other people who you feel have wronged
you. I've just never taken part in those kinds of conversations, even if I felt that I've had
(33:31):
a coach that I didn't like, but I took that to him and I let him deal with it. And we
negotiated, organized through him, not just taking it to social media, but we are in that cancel
culture. Have you had anything with cancel culture and the law that you would just put
out there for us to think about in terms of, I don't know, just when the witches come hunting?
(33:56):
I don't know. Yeah, first I will. It's a bad joke. I have joked for years that what I'm really
trying to figure out to invent is like an online restraining order. That would be amazing. That's
what I really need to put my time and energy to, because this actually happened to me a couple
(34:19):
months ago. Some people are always going to surprise us. I had somebody like inquired with
when I say inquired with our firm had emailed or she'd sent some DMS and last quick question,
or she needed free advice real fast and received the response that we can't provide
(34:39):
on licensed device, blah, blah, blah. And then she went on a rampage on social media
and completely went on a rampage talking about our customer service, even though she wasn't a
client and all this stuff. And so I found myself in the position that we're talking about,
which brought a new level of empathy to when I help clients with these scenarios. But
(35:03):
this is where, again, first and foremost, have an attorney that you could reach out to
within your jurisdiction. If something like that does occur, because a good attorney is going to
shoot you straight and say, Hey, D'Arcy, this sucks. This, but this is going to cost $10,000
(35:23):
at least to fight. It's not really a clear cut case of defamation. And so you're going to waste
your money. You're going to waste your money on me fighting it for you. Those are hard conversations,
but that's, those are like, those are the right conversations that unfortunately I do have with
people. Sometimes I just had a client who somebody was using her was improperly using her trademark.
(35:44):
And my client sent a really kind Instagram messages, like a, not a cease and desist,
but like, Hey, I'm sure you aren't aware, but you're using my trademark improperly.
The recipient screenshotted it, redacted parts of it. And then it went viral because
she, even though she was an educator, she was actually a trademark bully. So she literally
(36:06):
was in that position where all of a sudden, like you said, the witches came hunting.
And some of the tough advice that I had to give her in that scenario was we're talking about a
larger reputation element at play. We're looking at this, not just from a legal lens, but from a
business lens, just as much. And when looking at it from a business lens, sometimes, sometimes,
(36:31):
I'm not saying I don't want this to be taken out of context, but sometimes fighting is going to
cause more reputational damage. And you have to have that 10,000 foot. You have to have either
yourself or somebody that you trust who can be an advocate, who can provide that calm,
cool and collected 10,000 foot perspective. No, which scenario is worth fighting in which is not.
(36:58):
I have had some people reach out to me and say, doesn't it create, or am I losing rights? If I
continue or allow people to just post whatever they want without taking action against them.
And no, you're not losing any rights that you are not losing any rights whatsoever. It's not like
people all of a sudden get the right to criticize you just because you allow it for so long.
(37:24):
But this is where I said it earlier. I'm going to say it again. Whoever speaks the most in a
negotiation loses generally speaking. And I've been hit with, I've been slandered pretty badly
a couple of times in my career. And I'm one of those people that when I speak, it's going to
(37:46):
matter. You're not, I'm not someone who's going to just sit and talk a lot in general. If I speak up
and if I put my foot down about something, it's going to, it is going to matter. And it's going
to stop that event. And generally speaking with my clients who might receive that, especially like
you said, with social media, where people just take too many creative liberties when it comes to
(38:07):
what they want to do with somebody's reputation. You can ride that line of rise. I don't want to
even say rising above it, but I do agree with that though. I think I've been in business a
really long time. There are going to be people who I had a re it's not recent, but it keeps popping
up because she keeps saying all of these things that aren't true. And I have the exact proof that
(38:30):
they're not true. I have all of her forms that she submitted that said the pro all of, and I'm
like, I have all, I'm like, everything she's saying is not what she said to me. And I have this
and it's, but what would it do for my reputation to be like, Hey guys, here's the truth. Here's
her thing. Here's the, everything she's saying isn't true. I just know the truth for me, my,
(38:52):
my version of the truth and also the truth she gave to me. And it's, I just, I'm going to let
the truth play out. I'm just going to let, if people are drawn to that story, drawn to that
energy, drawn to where she is perfect, they're probably not for me. And I'm going to, whether
it's rise above it or just, I sit with myself and think, do I have anything to defend here? Am I,
(39:13):
should I be defensive about this? And I do think that defensiveness is matching that energy of
what they're putting out there in a way, not to say that there are not times where you should
stand up for yourself. I think it's a tricky place to know how to stand up for yourself without,
I don't want to throw other people under the bus. I don't want to bring personal stories into it.
I feel like the conversation should be had with the person, with the two people instead of her
(39:37):
with the whole world or whatever. But at the end of the day, I can't really control that.
I just think it's really interesting in the creative world. I've coached a lot of people who
have had one person did this amazing shoot. I helped her review the shoot and she came up with
the idea and she shot it. And then literally a week later, another photographer, she didn't
know about, I didn't know about, was like, you stole my shoot. Oh wow. No, we never even saw
(40:02):
your shoot. And they were similar looking. What do you do? There are those things where
people think a cease and desist, you're taking this idea. And it's like, I don't even know who
you are. I think those things really do happen in the creative world, unfortunately.
And then I think copying absolutely happens also. And there's not a whole lot you can do about that
except for continuing to be innovative. But I think the point of it, contract wording,
(40:26):
the contract language, having these specific contracts, you were talking to me about somebody
who needed more of a bespoke contract from you, but they had to get on your wait list
and they had to wait two months to get this updated contract where as with the AI software
that you've created, people are able to go in, put in the scenarios and the AI is going to
(40:48):
generate the exact contract that they need that will be very specific and nuanced to the situation
that they are in, which is mind blowing. When I read about it, you guys, I'm going to post the
link to read about this in the show notes. Paige, when can we buy this and where can we sign up?
Thank you so much for asking that. One thing I want to add real quick too that I'm excited about
(41:10):
when it comes to this, one of the elements to this platform, I trained a chat bot on all of my
negotiations, all of my redacted cease and desist and demand letters and different client questions
that came in and my own negotiation handbook that I use to train my team and my mentees and things
like that. So my hope is that's another element, a non-contractual element of this platform that
(41:36):
people can use to help in these types of really tricky scenarios. But so it actually, the platform
launches, it actually launches as of the day of us recording this, it'll launch tomorrow.
Fingers crossed that we don't have any more tech glitches when it comes to that. But yeah, V1 is
launching this summer, which means that V1 is defined as all of our client agreements. V2 is
(41:58):
going to be launching in October. So that just means the remainder of all of the contracts that
currently exist in the Creative Law Shop. And when people come to the Creative Law Shop,
so this platform, I've named it the Foundry. So this is just the name of the actual software
itself. You're still going to go to the Creative Law Shop website, and now you're going to have
(42:18):
the option of downloading the template or downloading the template and also using the
Foundry as well. So it's because sometimes you do actually just need to have a contract template
that you can keep on your desktop and utilize it. No, it's really helpful. And it gives you
the outline of what to even think about in the situation that you need. And then you could go
(42:39):
into the AI and really fine tune it, which I think is just a brilliant, both of those are such good
tools. It's basically like we all get access to you. I'm joking, I've created something.
I've created, I've literally replicated myself as much as possible and provided that because every
(43:00):
explanation to every single line of every single contract that I could possibly provide, even the
answers to questions that people don't know to ask, it's all in there. Like everything in my
brain regarding these contracts is in that software. And it's just sitting there ready
for whoever wants to use it. That sounds like a dream because I pick your brain all the time
(43:23):
about every situation. So I'm excited to dive in tomorrow. I've got some, I'm going to go up,
up-level my non-disparagement clause, take a look more into that. Just look into more things that
as the world becomes more cancel culture and I don't know, just witch hunting and things like
that. Not that I want to give a lot of attention to that. I just think it's really important to
(43:46):
know how to have a solid contract and not be afraid to uphold the contract. And that's what
they're there for. They're there to have each party know exactly what they're agreeing upon,
right? Nobody's not aware of what they're signing and to hold to that agreement. And I think that
is accountability and responsibility and it's maturity and it's all the things. So we need to
(44:08):
make sure we have those elements in our business to make our business one of those things that we
don't have to, it just takes away a lot of the worry because you do have yourself covered for
the situations that you need. And that is one thing I do really love. I love the law and I
love a good contract. One thing I want to add really quickly, D'Arcy is, is I'm not going to
(44:30):
be so Pollyannish to say the truth always comes out because it doesn't. That's just a reality.
It doesn't, but integrity over time shows itself and that consistency with your, with repeated
professionalism and the way that you treat people and the people that flock to you, that want to
work with you, that continue working with you, that you have that longevity of relationships with
(44:53):
that eventually does paint a story or paint a narrative that non-action can paint a more
powerful narrative than taking quick heated action in the moment. If somebody is online,
just trying to stir the pot, just because they're looking for that click bait and that little,
that all those reactions, just all of that crap. So that's just one thing I want to add.
(45:17):
I love that. I just wrote that down. Thank you. And I think that is a powerful lesson for all
of us who are in business for a very long time to learn and to learn that, yeah, that it is that
consistent energy. Not that we don't all make mistakes and we can forgive ourselves for those
mistakes and we can do our best to recover from the mistakes, but also how much we are showing up
(45:37):
in our own integrity and willingness to serve and wanting good results for our clients. And the
thing that's at the heart of what we both do and what I think most business owners do. So I think
that's such a beautiful reminder. I could ask you questions all day long. We should pop back on one
day and do a Q and a, because I'll ask the audience right now, if you guys have a legal
question that you didn't get answered that you would like to hear on the podcast, we'll have
(46:01):
Paige back again. We'll get those answers, but until then, make sure you check out the Creative
Law Shop with the new AI and app component, which will be listed in the show notes here.
You can also DM me on Instagram. It's also listed on the website as well, because we
love the Creative Law Shop and we will use you forever and ever.
Thank you so much. I really enjoyed this conversation.
(46:21):
Always good to have you, Paige. Always good to see you.
You've been listening to the Play It Brave podcast. Love what you heard. Wonderful.
You can shout about it in the reviews. I bet you know someone who needs a shot of self-belief.
Then don't keep us a secret. If you've missed something crucial, we've got show notes for this
and all past episodes over at darcybenincosa.com forward slash play it brave. Thanks for tuning in.
(46:45):
But don't forget the world teaches you to play it safe. Stand up, stand out and start playing it brave.
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