Legal Strategies for Protecting Your Brand and Transactions

The Virtual CPA Success Show: Episode 84

0:00:40

Jamie

So first, before I introduce our guest, I'm joined once again by Joey. So we are getting another episode with Joey instead of Jody. So sorry for the confusion on the close names, but like I said in the previous podcast, Joey's a lot taller, a lot cooler, a lot smarter, everything you can imagine than Jody. So welcome to the show, Joey. Thank you, Jamie. I appreciate it. Awesome. So introduce our guest. So, Sharon Toerek is the founder of Legal and Creative, and she is here to talk all things legal. So welcome to the show, Sharon.

0:01:09

Joey

Thanks for having me. Looking forward to the conversation.

0:01:12

Jamie

So why don't you give us a little bit of your background so our listeners kind of know who we're talking to here. So give us little a bit of your background and kind of how you've got to where you are today.

0:01:21

Joey

Yeah, I'd be happy to. So I am really an intellectual property lawyer by training and trade who sort of eventually worked my way down a path towards helping marketers and then agencies. And the way that really happened was I had a lot of experience helping folks with brand protection issues, and I started to realize more and more as I helped them with the trademark consequences of all that, that really agencies were on the front line of helping marketers with brand development, brand selection. And so started working with agencies, really as an audience initially in the trademark and copyright arena, and eventually founded my current firm, which is toRick Law. We do business as legal and creative to the agency world, and we help agencies in three ways.

0:02:14

Joey

One way is helping them develop and protect and monetize their intellectual property. The second way, which is probably our most frequently requested way, is helping agencies develop and negotiate strong contracts, whether that's with their clients, their contractors, other agencies, whomever it might be. And then the third way is helping agencies and their clients stay on the right side of any marketing regulations that might come into play when you put a campaign out into the world. So whether that's influencer marketing or whether that's data privacy, compliance or any of the other sort of compliance issues, you have to deal with when you're putting a product on the market and talking about it in your marketing and your advertising.

0:03:00

Jamie

Great. I think those are three great topics. And I know, like I said, I've been to events and all three of those have come up, some more than others. Like you mentioned, I think contracts is usually where the conversation goes, let's start there and let's see where it takes us. So when you're advising clients or when you're talking to people in this space, what are some of those tips that surprise you that they need to know or that just happen very frequently when it comes to writing contracts?

0:03:29

Joey

I think our client base is independent agencies who tend to be small and mid in size. So generally they don't have in house legal. They rely on us for that function. And what I find talking with a lot of owners or leaders of these agencies is they don't necessarily love devoting the resources of time or treasure to being proactive about their legal affairs. Many agencies are not super excited about investing dollars proactively to sort of minimize risk versus throwing money basically after fires once they occur.

0:04:15

Joey

So what's exciting to me about that is the opportunity to actually help an agency owner see how much easier their lives can be, how much bigger their bank accounts can be if they put a little time and attention into being proactive, about putting these measures in place, making sure their teams are well trained about the legal issues that matter to them and the work that they put out every day. So I would say that's sort of the first thing. The second thing is I always get a kick out of an agency owner telling me that they don't believe in contracts and that if a client is really unhappy and wants to go their own way that they're totally fine with the parties separating and dividing. And one time I actually had a conversation, it was an inbound.

0:05:02

Joey

Inbound used to have a pretty healthy agency track of content actually, during the main conference. And so I was speaking one year and talking to a gentleman afterwards and we don't believe in contracts and a party is only going to comply to the extent they're honest anyway, and we don't want to keep them if they're not happy. I said, okay, tell me a little bit about how you describe the work you're going to do for the client?

0:05:29

Joey

Oh, we have a written statement of work, of course, and we write out what we're going to do. And I said, you probably include what your fees are going to be and when things are going to be due and you put a few terms. Yeah, it's a contract. I don't care what you call it, call whatever you want to call it, call an estimate, call it a proposal, call it a birthday party. It doesn't matter to me if it's got the terms in it and it's signed by both parties. It is a contract. So let that document work for you as an agency.

0:06:03

Joey

Enter into those transactions with your clients on your terms, or at least understand what your baselines are going to be if you're going to sign the client's version of a contract. And I guess that would lead me to the third thing, which is it's amazing to me how much agencies underestimate their leverage when it comes to legal in so many ways. Getting first to the table with their own master service agreement or their own professional services contract is one, not investing enough time or energy into protecting their intellectual property so that they could maybe turn it into passive revenue streams down the road.

0:06:44

Joey

It's amazing to me how little time they're willing to invest sometimes in doing that as well because you're just leaving money on the floor if you don't think about that strategically. So those are some of the things that surprise me still when I talk to agency owners about agency legal.

0:07:03

Jamie

Is there a mistake that you see or something that's missing from contracts that's kind of pervasive across the industry that you see commonly that is really easy to fix, that we don't know anything about?

0:07:15

Joey

I see a few things that recur with a lot of regularity and I think it's because the first one I'll mention I think is more about the agency's interest in getting to deals speedily right and not wanting to put any friction in the way of that. And that is that agencies tend to be reluctant to talk about confidentiality and nondisclosure in the business development phase of their conversations with potential clients.

0:07:48

Joey

They're really reluctant to ask for a mutual nondisclosure agreement, for example, they think it makes them look hard to do business with or like they're not laid back or cool enough or easy enough to work with. Meanwhile, most of them are signing the nondisclosure agreement that the client has shoved across the table, which only protects one party and not both of them. So I think that's a common first opportunity, if you will, to put your stake in the ground about how you value what you're going to be bringing to the table during that conversation.

0:08:23

Joey

Because most agencies I know discuss strategy, present ideation, maybe even a few sample concepts or campaign ideas. Some even go so far still as to do spec work occasionally. It's still a thing, believe it or not, even in 2023. And those are fine to make, it's fine to make that business decision. But if you're not protecting the agency's stake in the ground in terms of ownership of those strategies that you're maybe popping into a written proposal or those concepts that you're sharing during a pitch meeting or that spec work, that you're showing off, then don't be surprised at the outcome when the prospective client either decides to execute that internally or you end up not being the agency who wins because you're competing against somebody who offers to do it cheaper. So that's the first misstep is protecting yourself during the business development phase of the conversation.

0:09:28

Joey

In the actual contract itself, I think the major missteps that we see frequently are a reluctance to trigger the transfer of owning the rights to the work upon getting payment. Everybody's always quick to say the client will own the work product, usually at the end of the day. But the agencies are not always careful enough about saying you don't own anything until we've been paid for it. So we see that that's a recurring theme and error that we see in agency contracts. And I would say things we're seeing emerge now more frequently requests for exclusivity in categories.

0:10:14

Joey

And that's sort of the double edged sword of being a specialist agency is you end up being really effective and then very sought out either for a particular skill or in a particular agency client vertical. And so they want you all to themselves, or at least they don't want you working for their competitors. And so that's coming up with more and more frequency right now with agency client contracts.

0:10:41

Joey

And then I guess the final thing I would highlight is the Fair competition covenants, which get glossed over in an agency client agreement. Talent is tight in the agency industry, still not quite as tight as it maybe was 18 months ago, but still tight. And agencies need to be thinking about protecting themselves and the client agreements with appropriate non solicitation language so that they're not embedding somebody in with the client who the client loves so much that they end up saying, hey, come work for us and you've got all our institutional knowledge and so we won't need the agency anymore. So those are some of the most frequent things we see patterns around in terms of agency client contract negotiation.

0:11:29

Jamie

I think the last one you mentioned there is the one that I've seen enacted the most, where it's like, wow, I'm so glad we had that right. I can't tell you how many times I've had those conversations. The client, they're like, oh no, this company is trying to steal one of our employees. Let's look at what it says in the contract. It's like, oh, wow, if they want to take them, they're going to have to pay two years compensation to us. And it's like, that's 200 grand. How many people are willing to pay a 200 grand signing bonus for an employee or whatever that language is? So I've seen that save my clients several times.

0:11:59

Jamie

Some kind of language in there.

0:12:01

Joey

Well, every agency should be thinking about, I'm on the fence, honestly, about whether to put a penalty in there about it. It can be effective in some cases. In other cases, depending on the size of the client, it can just be a door opener for them to just if your goal is to keep the employee, you might go one way. If your goal is to keep the business, you might end up going another. It just depends on the circumstances, but something you have to think about. And I've been representing agencies long enough to say that this isn't something we had to frequently negotiate into MSaS even five years ago. And so the world is smaller.

0:12:43

Joey

Specialization is definitely on the rise in the agency world for good reason, I think, and so expect to get these requests at some point in your career from a client who you pursue.

0:12:58

Jamie

I think that you said something really important there. I think a lot of people, when they think of legal, they think it's black and white. I think it's only one way to write different parts of the contracts. And I think it's really important that's why you have a legal advisor because you want to tell them, this is what we want and this is our goal of the contract, help us write it appropriately. So I think that's a really key thing for our listeners, because I know a lot of times when I think legal, I'm like, oh, I'm either writing this correctly or I'm not writing it correctly. And a lot of times there's different ways to do things.

0:13:25

Joey

I'm glad you said that, because I think it's important to mention that a lot of agencies, especially if you're an agency that does a lot of business with enterprise size brands or you do a lot of business with government agencies or any client that has a big machine in terms of procurement or in house legal, or they think that it's a done deal, that they're going to end up signing the paper that the client creates around the deal, and you may end up signing that.

0:13:55

Joey

And so they don't see the value in having their own really well thought through master service agreement. That is your secret benchmarking punch list for when you go into that negotiation. First of all, if you get it to them faster than they get theirs to you, it helps them understand that you know your worth and that you know how to negotiate the points that matter to you as an agency. Second of all, if the deal is structured well enough, or if it's small enough, even though the client is big, they might just sign your agreement.

0:14:32

Joey

If your marketing counterpart has a certain amount of financial authority where they don't have to go through their internal procurement or legal processes and the agreement looks fair to them, you might be done. And that's a beautiful thing. And then, third of all, even if those two things are not true, it's your internal punch list for when you're negotiating about what the distance is between what their agreement says and what your baseline is on specific terms and conditions. So tons of good reasons why going through the exercise of having your own well thought through and updated regularly.

0:15:07

Joey

Client services agreement is so important for every agency.

0:15:12

Jamie

It's a great point because I think it goes back to leveling the playing field. Right. I've had some conversations with clients who said, well, they've just got this big legal team, and I'm just me, right? What am I going to do? And it's like, well, it's good to have someone at least on your side protecting your interests and looking at it from that perspective. Even if you do end up signing the larger organizations thing, at least you vetted it. You went through the process and went through the steps, and you know what you're getting yourself into.

0:15:40

Joey

Exactly. I couldn't agree more. And you know where to push back. You know where those headlines need to be, and you know where those conversations need to be, and you're positioning yourself, even as a micro agency, as an enemy that understands their worth and has certain expectations of what the transaction is going to mean for them. I mean, the client has certainly thought through what value or ROI they're expecting on their relationship with you.

0:16:09

Joey

Show them that you are giving it the same care and consideration on your end of the transaction.

0:16:17

Jamie

If we could, sorry. I'd like to circle back to one thing real quick that you mentioned earlier, because I'm thinking about my clients in particular with regards to intellectual property. So I can see my clients saying, you know, we're just this little shop. We don't really have intellectual property that could be considered an asset to us. I'm curious what your response to that would be. Maybe there's something we're not paying attention to that really is intellectual property that we need to be protecting.

0:16:44

Joey

We use a framework at the firm that we've dubbed it our Triangle Framework, of assessing whether you have IP as an agency. And from there, once you kind of put it through the Quick framework, you could figure out whether it makes monetary sense to sort of pursue developing it into something. So at one tip of the triangle, you've got a brand, right, which is protectable by trademark. And this is if you've assigned a proprietary name to a system of yours or a method of yours, or you've designed a training or a course, for example, that you deliver regularly. It's how you've branded it. So there's brand, then there's content. And that's the actual stuff that you've created, whether it's a piece of software code, a mobile app, a foresaid training course, a digital online opportunity.

0:17:42

Joey

We have agencies create original proprietary research on a topic and then build subscriptions into that. So that's the content, that's the actual stuff. And it's usually protectable in one of two ways, either copyright or it's a trade secret if you're not going to disclose it to a lot of people. And then you've got 0.3, the triangle, which is your transactions, which is how you monetize it. And that's either by a license agreement or through some sort of subscription model or transactions could mean transactions in. For example, have you used a contractor to help you create words, copy, imagery, software coding, any of that stuff? So transactions in, transactions out. So that's the framework you use to assess what you have.

0:18:32

Joey

I think though, underlying your question, Joey, is how do you know whether you've got something that's worth spending the time, energy, going to market? You just have to understand enough about what your client avatar might need or find value in, or look at patterns of problems that you've solved for clients in the past. Because if you've seen patterns, because you've worked on a lot of the same kinds of clients or used the same tactics over and over again, you've learned a thing or two about how to automate that or about how to help clients DIY it or do it with you. Versus just engaging so you can create different access points that might be more affordable for them.

0:19:16

Joey

Versus losing the sale altogether. So you got to look at patterns and you got to look at what the most frequent demands are that are made of your agency's expertise and that'll give you some clues along with the triangle framework we just went through about whether you've got something that's worth investing in the protection of and the going to market with. And my challenge with agencies is they don't want to go through this exercise because they get in a pattern of thinking, well, all the IP that we create is for the clients to own.

0:19:48

Joey

And so we're really just about work for hire and handing over what we've created. And I kind of crowded fall on that because I think an agency that is a problem solver or has developed a recognized expertise in an area, they've got a lot of internal knowledge, know how to productize and turn into additional revenue streams. We've seen it over and over again. And I had a glimmer of hope during the pandemic that more agencies could focus on this because they had the time and battle because their client work was slow. And some of them really did do some cool things.

0:20:25

Joey

We've had clients create virtual events that they sold for a per seat license fee, training modules, do it yourself courses that people could access on demand, original content libraries. We've had some agencies who have a high concentration of clients in a particular industry. They created content banks that they would license to multiple clients in non competing territories for a fee. They were creating all this content anyway.

0:20:58

Joey

And we've had clients do their own individual proprietary research in a particular industry and sell licenses to it in addition to using it in client deliverables. So lots of options beyond what we typically think of as developing IP, which is let's develop software or a mobile app. Those work too, by the way.

0:21:19

Jamie

The interesting thing on both, talking through both these areas with you is a lot of times when I talk to clients, when we talk about meeting with lawyers, it's always on a neat basis. It's like, oh, we're working with a different client. We need to look at our contract, or it's an acquisition or something like that. It's always like, okay, this is the time we need to talk to our contract. But a couple of things you mentioned both on the IP side and the contract side, it would make sense to me that meeting with your lawyers should be a twice a year or just a recurring thing because things in your business change so much, there might be stuff you're missing. Is that kind of how you operate? And is that how you'd recommend agencies operating with their lawyers?

0:21:57

Joey

It is how I recommend agencies operate. It's how we operate with some of our clients. We're always happy to be here when projects arise or unanticipated things arise or opportunities arise that you hadn't expected. But ideally, you should have a relationship with council, accountants, financial people, operations, people who understand your business model, who know how you make money, who know about the industry or something about the trends in your discipline so you don't have to keep explaining it over and over to them every time.

0:22:39

Joey

This was not my first law firm, and when I made a decision to found this firm, I had been partners in a couple of different business focused law firms where I sort of served agencies as a silo within and worked with other types of clients as well. But when I developed this, we really doubled down on understanding our client industry. And so, yes, the direct answer to your question is you should be looking at your relationship with counsel just like you look at your relationship with your other professional advisors who help you make money by either reducing risk or taking advantage of opportunities to generate revenue that you might not have thought of. And a lawyer who understands your business and your industry should be able to help you do both those things.

0:23:29

Joey

And so that is why I feel like the intersection of the types of law that we practice and the type of client that we help is so important, and I think it's important for agencies too. Just take some of that to heart and think about the way they help and who they help, because the more you can intersect them, I think the more powerful you can be.

0:23:55

Jamie

Yeah, I definitely agree. So you mentioned earlier one of the events that you've spoken at, and it sounds like you may have a couple of new events you're going to here in the near future. So you want to talk a little bit about where people can see you.

0:24:08

Joey

Yeah, thank you. There's a couple of upcoming industry events for entrepreneurial agencies. One is the build a Better Agency conference, which is coming up in May in Chicago. AMI Agency Management Institute runs that event and the vibe there is great. You'll meet great other agency owners and the content is usually excellent. And I know there's going to be a lot of conversation around AI this year and its impact on agencies in addition to a lot of other things that are more evergreen.

0:24:46

Joey

The Prsa, which is the Public Relations of Society of America's Counselors Academy, which is their owner group, their agency owner group. Their spring conference is also in May in New Orleans. I'm going to be presenting on independent contractor relationships and how to structure them and how to avoid risk there. And then we've got some of our own online Q and A event. We do a quarterly online live Q and A event where we do a brief learning.

0:25:20

Joey

By brief I mean ten to 15 minutes. Then we open it. It's open mic for questions. We just had about 200 people at the last one, which was about MSaS. Agency owners love talking about and asking questions about master service agreements. Our next one is going to be in April, and it is about all about independent contractor relationships because we're getting so many questions about that along with the changes and how the Feds might look at non comp agreements either for contractors or for employees and how to prepare for those coming changes. So those are just a few of the upcoming sounds busy.

0:26:01

Joey

Yeah.

0:26:02

Jamie

That leads me to our fun question. Okay. So one thing we do at the end of every one of our podcasts is we kind of go off topic here a little bit and try to get to know you. And so I'm going to embarrass Joey a little bit here. So we're going to keep this to US cities because Joey doesn't like to fly. So if I went international, it would be an unfair advantage to Joey. So with the conferences that you attend and I know I'm pretty, I attend quite a bit as well, I'm sure there's that city that when it pops up, you're like, yes.

0:26:29

Jamie

Can't wait to do a conference in that city because it's a lot of fun. So I'm going to talk to both of you about what's your favorite city to attend for a work type event. And we'll start with you, Sharon.

0:26:41

Joey

San Diego.

0:26:42

Jamie

Okay.

0:26:43

Joey

I love Orange County. I think it's worlds different than LA in lots of ways. All good from my perspective. I love the combination of vibrant downtown. They got a baseball stadium right downtown, which I love because I'm a baseball girl. And then you've got the coastline. And so I probably wouldn't want to live in San Diego because of the cost of living out there. But having to go there to speak at an event or go to a business conference is awesome. I love Chicago too. I'm a big city girl. I got to say, San Diego is kind of a nice blend of city and ocean and water, and so I guess I would pick that one first.

0:27:24

Jamie

Yeah, and it's funny. We did a conference in San Diego once, and it was almost like its own little private island in San Diego that had these little bungalows. And it's probably my favorite concert I've ever been to because it was a conference I've ever been to, because they had basketball courts, they had bikes, they had everything you could do there. And you just got to know everybody within the conference really well. And San Diego has always been a favorite city for me just because being in Colorado, it's a real quick flight. It's a one stop flight, and it's less than 2 hours. It's just a real quick way to.

0:27:50

Joey

Get there no matter what time of year you go. If you happen to have a gig that lines up with Comic Con, which happened one year, the people watching is just not to be matched. It's just really interesting. So, yeah, there's a lot to be said for San Diego. Love it a lot, and their convention center is very large, so they tend to attract quite a bit of conference business.

0:28:13

Jamie

Yeah, sure. All right, Joey, your turn. Well, Sharon's not leaving me a whole lot of options because she just picked my two favorite cities, not Albuquerque in the country from not just a thing to do perspective, but talk about great food, too. In both cities, the food scene is really good, which is usually where my stuff ends up. I'll go a little bit off the beaten path here, Jamie, and go not too far from you. And I'll go with Denver as a place that I enjoy, because, as Jamie mentioned, it's not the flying so much that I have the problem with. It's the propensity of planes to sometimes just rapidly drop in altitude without any type of warning, and that just doesn't work really well for me.

0:28:56

Joey

It sounds like a little post traumatic stress there going on.

0:29:00

Jamie

We could spend another 30 minutes talking about that and not get anywhere. But I do love Denver. It is a great city for me because it's close to the outdoors. So no matter what type of time of year you're going there, whether it's spring, fall, summer, winter, you've got good stuff to do. Again, a great food scene, really vibrant downtown, and there's lots of little pockets. It's a neighborhood type of town, so if you get into the right neighborhood, you can really explore and feel like you're getting to live a little bit like a local.

0:29:28

Jamie

Plus, it's a really easy drive from Albuquerque.

0:29:32

Joey

Awesome.

0:29:33

Jamie

I'll throw Santa Fe in there.

0:29:35

Joey

I'm going to have to try Albuquerque. I will contact you, Joey, for a restaurant list.

0:29:42

Jamie

I'll hook you up. We were down there, and we definitely found some great places because of. Joey. So, yeah, I mean, you guys obviously chose some great cities and so it's hard for me, but I'm gonna go with I would have chosen San Diego. So you took that one, but the one I'm going to go with is Nashville. And the reason is because I actually hadn't been to Nashville until I was an adult, and then I went there and then almost every organization we work with has Nashville in their rotation. But I feel like almost every organization that I work with has done Nashville in the last two years, so it might be a little while before I get back there again. I was actually just there a couple of weeks ago, but to me, the food, just the whole energy of the city is great. I think when you go to Vegas, it's about drinking and gambling. When you go to New Orleans, it's about drinking and jazz. But just going to Nashville, it's about having just a great time. And the music is unbelievable, as anybody who's been there knows. Like, you can walk into any location and you feel like you're seeing the best musical performer you've ever seen in your life. And that to me, is just so crazy that that many talented people live in such a small, little city.

0:30:50

Joey

Isn't that amazing? Yeah, the concentration of talent in just one place is and you wonder about how many people are not going to ever get their big break who are just so talented and we're not going to know about them. It's just crazy to me how the odds work in that industry.

0:31:08

Jamie

So a lot of the conferences I go to down there, they do what they call like a singer and songwriters thing, where they have these songwriters that write these country songs come out and sing them. And when actually Joey and I were both there for this one, for a summit event, this guy came up and sang and he was a good looking guy, had long hair, looked like he could be a professional country singer, and his voice was amazing. And it's like he wrote all these songs for Kenny Chesney and I'm like, how can Kenny Chestnut be any better than this guy? And you kind of think about it, it's probably what he wants to do. He just wants he'd rather write than perform. But I agree, it's crazy that math doesn't make it. So I appreciate you guys participating in my off the cuff question, but we'll get back to wrapping this up. So I always like to end the podcast with a final thought. So, Sharon, do you want to kind of give a final thought to our listeners and then also tell them how they can find you?

0:31:56

Joey

My final thought is that legal is a profit center in your agency, or it should be. Think of it that way and think about if you think of it that way, you will ultimately spend less on legal and, yeah, I happy to talk to any agency folks who need guidance, want more information, or who just want to know when our next Q and A is and you can reach us@legalandcreative.com. I'm very active on LinkedIn, so reach out to me there. It's T-O-E-R-E-K. Sharon Toerek.

0:32:28

Joey

And I really appreciate you guys having the conversation with me today. It's been a really fun conversation.

0:32:33

Jamie

Yeah, it was great and I learned a lot. How about you, Joey? What's your final thoughts? I think my final thought here is that the legal side here can be an asset and it needs to be just like anything else. Like with our accounting, it's always easier to solve an accounting problem if we solve it from today looking forward, than trying to go back and fix what was already done. So with my clients, I'm going to be urging everyone to get a little bit more prescriptive with their legal work. And it never hurts just to have someone look over it, even if the answer is, hey, you're good, everything looks great.

0:33:04

Joey

Absolutely.

0:33:05

Jamie

That's better than not knowing, right?

0:33:07

Joey

Yeah. The peace of mind is really important.

0:33:10

Jamie

Yeah. And I think just from my final thought is, obviously I took a lot away from this, but when you were talking about the IP and all the things that qualify, it's like you were creating this giant bucket of things that people need to think about. And I think that to truly understand whether you have IP or not, you need an expert to talk to or you need either a giant list on the Internet somewhere because it sounded like there were a lot of things that qualify, but you have to really understand what it takes to make them qualify. So that was really one of the big takeaways for me. So, again, appreciate both having both you guys on here and I thought this is a great show and hopefully our listeners enjoyed it as well.

0:33:42

Joey

Thank you. Thank you, Jamie. Thank you, Joey. It was great having the conversation. Really appreciate your time.

0:33:48

Jamie

Thank you. Enjoy this podcast. Visit our website@summitcpa.net to get more tips and strategies for achieving business success. We're here to be a resource in this ever changing industry.

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Episode 84 - Legal Strategies for Protecting Your Brand, Content, & Transactions with Sharon Toerek 👉

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