Make Your New Year’s Resolution Legally Binding

Resolving to Write More - a Worthy Thought by Carol VanHook from Flickr (Creative Commons License)

Resolving to Write More – a Worthy Thought by Carol VanHook from Flickr (Creative Commons License)

As I was reading my Twitter feed the other day, I saw a post that said only 8% of people keep their New Year’s Resolutions. I don’t know if that statistic is accurate but I believe the number is low. If you want help keeping your New Year’s Resolution, make it legally binding with a contract.

Here’s what I suggest: get a friend who also has a New Year’s resolution and write a simple agreement with benefits for sticking to your resolution and penalties if you don’t. The penalty has to be painful enough that it motivates you to want to avoid it. And it helps if your friend is kind of a jerk who will hold you to it.

If I were writing this type of contract, it would be something like this:

Joe and Mike’s Resolution Agreement

Parties.  The Parties to this Agreement are Joe Smith and Mike Jones.

Consideration. In consideration of mutual desires to improve our lives and ourselves, we have created this binding agreement to stay motivated to stick to our New Year’s Resolutions.

Joe’s Resolution. Joe currently weighs 250 pounds. Joe resolves to weigh 220 pounds or less on December 31, 2015. If Joe fails to do this, Joe will donate $1,000 to the charity of Mike’s choice on that day.

Mike’s Resolution. Mike currently smokes a pack of cigarettes per day. Mike resolves to be a non-smoker by December 31, 2015. If Mike fails to do this, Mike will donate $1,000 to the charity of Joe’s choice on that day.

The Celebration. If both of us are successful in keeping our resolutions, we will celebrate by getting opening day tickets for the Arizona Diamondbacks.

This is a real contract. This contract is governed by Arizona law. All disputes will be resolved in litigation in Maricopa County.  The non-prevailing Party will be responsible for the prevailing Party’s attorneys’ fees. The Parties can modify this Agreement only in writing that’s signed by both Parties (but you better have a good reason to ask to change this Agreement).

Signed by:

 

Joe Smith                    Date                                       Mike Jones                 Date

 

Witnessed by:

 

Friend Name #1           Date                                    Friend Name #2             Date

 

I threw in a celebration clause so both sides would have a reason to encourage their friend to keep their resolution, plus it’s always good to celebrate successes. I added in witnesses so there would be more people holding them accountable.  I’d tell both sides to put a copy of the contract on their refrigerator so they’d see it every day and remember the promises they made.

Contracts are fun, and they can be simple and personalized and still be valid. Good luck to everyone who making resolutions for the next year. I hope you’re successful. If you want to chat with me about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Hat tip to my friend Jeff Moriarty for suggesting this as a topic.

Be Wary of Downloading Contract Templates

Copy Taste by Maik Meid from Flickr (Creative Commons License)

Copy Taste by Maik Meid from Flickr (Creative Commons License)

One of the questions I frequently get at my speaking gigs is where can people go to find good contract templates online. This question makes me simultaneously happy and nervous. On one hand, I’m happy that the person is asking about their contract needs; however, I’m nervous that they think there might be an acceptable resource online that could replace proper legal advice.

I usually tell these people that contract templates from the internet are a good place to start when doing research on a type of contract and the types of provisions they should include in their agreement. It should be the beginning of their search, not the end. When you look at a contract template online you can never know for sure who wrote it, where it came from, or whether it would be suitable for your needs. There have been many times when I’ve seen someone using a contract for their business that had provisions that made no sense – like a 2-person business that had an operating agreement that required a 2/3 vote to make changes and an Arizona-based business that was using a contract that said the agreement was governed by New Jersey law.

Instead of looking on the internet for a template, you might be better off asking your colleagues in your industry if they would be willing to share their contract templates, depending on where they got them. You are more likely to find provisions that are applicable to your business and the practices of your industry.

Regardless of where you get your templates, it’s always a good idea to have a business lawyer review them before you use them for your company. Otherwise you may find yourself using a contract that is bad for your business, and as long as the provisions of the contract are legal, you could be stuck with it. It may not be as expensive as you think to have a lawyer review your contract in advance. I’ve always said it’s cheaper to hire a lawyer in the beginning to prevent problems than to have to hire one after the fact the clean up the mess.

If you don’t already have a contract template you’re considering using, talk with your lawyer about whether it would be more cost effective for you to find or create your own contract draft for them to review or simply hire a lawyer to create your contract from scratch.

And be equally leery of contract templates created and sold by lawyers. Some of these are good and some of these are crap. I saw an operating agreement this year that was created by a law firm that sells start-up packages for businesses. My client asked me to review the contract to help him resolve a problem with one of the owners. This contract was dozens of pages long, was filled with excessive legalese, and did not address all of my client’s needs; hence, he needed a hire me to help him fix his problem.

Best of luck to everyone whose plans for 2015 include starting a new business. Creating contracts to suit the needs of your business should be one of the many things on your to-do list. If you want to chat with me about your business plans for 2015, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

What is a Statutory Agent?

FW Pomeroy's statue of Justice atop the Old Bailey by Ben Sutherland from Flickr (Creative Commons License)

FW Pomeroy’s statue of Justice atop the Old Bailey by Ben Sutherland from Flickr (Creative Commons License)

If your plans for 2015 include starting a business, you need to understand what a statutory agent is.

Starting a business usually begins with filing paperwork with your state’s corporation commission to create an LLC or a corporation and paying a fee. (Talk with your accountant to determine which entity is right for you. And yes, every business owner needs an accountant.)

Filling out the paperwork is a fairly straight forward process, and part of that will be designating a statutory agent for the business. A business can be sued just like a person. In the event that the business gets sued, the process server will need to know how to serve the business. They can’t serve a building – they need to serve a person. Your statutory agent is the person who will accept service (notice that you’re being sued) on behalf of the company. You have to provide a name and a street address.

As long as you live in Arizona, you can be your own statutory agent. Most business owners I work with choose this option. The only thing I remind them about is this information is publicly available on the corporation commission website, so if you’re running a home-based business, you’ll be using your home address. For people who live out of state or who don’t want to be their own statutory agent, there are companies who will provide this service for you. You pay a monthly or annual fee and they agree to accept service on your behalf. Many of these companies will also provide your business address as well.

In the event you are in a position where you want to sue a company, you’ll have to look up that company’s statutory agent to determine where to have them served. It’s an important part of beginning a lawsuit.

A gentleman called me a few weeks ago asking me to explain what a statutory agent is. The phrase “statutory agent” can sound scary to some, but the scope of the position’s responsibility is very narrow.

If you want to chat with me about your business plans for 2015, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

End of the Year To-Do List for Entrepreneurs

5/4/2010: To-Do List by john.schultz (Creative Commons License)

5/4/2010: To-Do List by john.schultz (Creative Commons License)

We’ve made it to December 2014! It’s hard to believe another year has flown by. I don’t know aobut your industry but most people stop calling their lawyers around the 15th or 20th of the month. (Exception: DUI attorneys.) That will give me almost two weeks to review and tie up loose ends from 2014 and get ready to hit the ground running in 2015. There are certain things I do as an entrepreneur during this time and I think they’re things all entrepreneurs should do.

1.  See your Accountant
I’ve said it before and I’ll say it again: a good business accountant is worth their weight in gold. I see my accountant twice a year – when I’m getting ready to do my taxes in February or March and every December. Every December he looks at my books to give me an estimate regarding my taxes for the next year and tell me if I should do a spend down before the year ends. We also talk about my plans for the next year and what financial implications might be on the horizon.

If your accountant advises you to do a spend down, buy quality things for your business – like new software or equipment or pre-pay for legal projects you want your attorney to tackle. Don’t buy a ton of pens and sticky notes that will take you a decade to use.

2.  Fund your Retirement Account
If you’re an entrepreneur, there’s a good chance you don’t have a 401(k) through your company. When you are your own boss, it’s your responsibility to prepare for your financial future, including getting a retirement account. If you don’t have one yet, start one. If you have one, give the maximum contribution if you can. The more you can put away when you’re younger, the faster it will grow.

3.  Review your Progress from 2014
I hope you had a list of goals for this year. Now is a great time to get that out and review all that you’ve done this year. Celebrate your victories and successes, and when you came up short, ask yourself what happened. Was it an unobtainable goal? Was there a shift in the company that made it a lower priority? Did you forget that it was your goal? Take some time to reflect on how you personally and how the business has changed in the last 12 months.

4.  Write Down your Goals for 2015
Think about the year ahead. What do you want to be able to say you did a year from now? Think about what you want to accomplish in the next 12 months and write down your goals. Try to make your goals measurable, tangible, and specific so it’s easier to determine if you’ve achieved them. Really take some time to think about what you want to do in 2015 and start laying the foundation to make it happen.

I hope you’ve have a productive year and that you’re excited for what’s to come. I know I am – there are many projects in the works for 2015. If you want to chat with me about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

What Should You Do If Someone Steals Your Work

Attention - Man Stealing White Stripe by Julian Mason from Flickr (Creative Commons License)

Attention – Man Stealing White Stripe by Julian Mason from Flickr (Creative Commons License)

Copyright infringement appears to be rampant on the internet. Some people don’t understand that they can’t use anything they find online. They don’t understand that the law lets the copyright holder dictate where their work is displayed and distributed. Some people get defensive when they get caught and say you should be happy that you’re giving them exposure.  Others know it’s illegal and take the gamble that you won’t notice or that you won’t object if you see what they’ve done.

Make Sure It’s Your Work They Copied
People don’t always own what they think they own. Check your contracts to verify that you are the copyright owner and not just the creator of a work. Remember – employees don’t own the copyright in anything they create within the scope of their job but independent contractors retain the copyright in anything they create unless there’s a written copyright assignment or work made for hire contract. Additionally, two artists can independently come up with similar ideas for original works and it may not be problematic so long as they’re only claiming rights in what they created.

How Do You Want This To End?
This is the question I ask all my clients who are in a suspected intellectual property infringement situation. Their goal determines my course of action. Ideally you should determine how you want to react to infringement before it occurs so you can lay the foundation in advance for your desired outcome.

If you just want the infringer to take down your work, you can respond with one of the following:

If you want the alleged infringer to pay you for using your work you can send a bill or sue them for infringement. If you want to pursue one of these options, you definitely want to use a lawyer to contact the alleged infringer on your behalf or through the court.

If you’re OK with the person using your work, you should send them a notice that gives them permission and requests they ask permission before using your work in the future. You always want to respond when you suspect someone is using your work without consent. Otherwise you could create the impression that you’ve attached a blanket license for anyone to use your work which could hurt your chances of going after other suspected infringers in the future.

Please note – you can send a notice without being a jerk about it. Jack Daniel’s sent what’s been referred to as the nicest cease and desist letter when an author copied Jack Daniel’s label on his book cover.  You could write or ask your attorney to do something similar

If you need a legal resource about how to avoid problems related to copyright and trademark infringement online, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to intellectual property and the internet. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Telling the Truth when you get Free Stuff

Our Books Arrive by Jarkko Laine from Flickr (Creative Commons License)

Our Books Arrive by Jarkko Laine from Flickr (Creative Commons License)

One of the perks of being a blogger is sometimes you get free stuff. Companies will send you free things with the hopes that you’ll write about it. One of my writing gigs is product reviews for lawyers so I have to use various office gadgets and software and write about it.

If you are lucky enough to get free stuff in the mail or you review products as part of your job, there are some rules you need to know. By federal law, you have to do two things if you do product reviews:

Your review of the product must contain your true opinion about it that is not misleading.

You must disclose when you are compensated for giving your opinion.

This means that you have to be honest about what you think about a product and not feel compelled to say nice things just because you got it for free or paid for the review. And you have to tell the audience that you got a benefit for the review – perhaps so they can be aware of the potential bias. The disclosure doesn’t have to be a big deal – just a “XYZ sent me this product for free and here’s what I think about it.”

If you don’t follow this rule, you could be fined up to $11,000 by the Federal Trade Commission. They can go after the reviewer or the company who sent the product. I suspect they’ll go after who has money to pay the fine.

Legal Side of Blogging Book CoverA company that sends out free products to bloggers or reviewers should include a reminder to their reviewers that they need to comply with this rule. This rule also applies if you’re writing comments on other blogs or websites or writing original content for your own site.

This rule also applies to review sites like Yelp and Trip Advisor. If you’re a Yelper, your must only post accurate reviews and you can only review products and services you’ve used. A company can’t legally tell its employees to post exaggerating positive reviews about the company or fake negative reviews about their competition.

If you need a legal resource on this topic or anything related to the laws that apply to social media, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to copyright and the internet. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Who Really Owns Your Content?

ZombieGrafitti by RhodanV5500 from Flickr (Creative Commons License)

ZombieGrafitti by RhodanV5500 from Flickr (Creative Commons License)

If you outsource any of your content creation (blog, photos, videos, etc.) you need to read this.

A lot of business professionals have the misconception that if they pay for something, they automatically own it. If your marketing department or employees create your content, that’s true. The company will own the copyright in (and actually be the author of) everything your employees create within the scope of their employment.

That is not always the case when you use third party contractors to create content for your company. If you don’t have a contract with your independent contractor, the law says the contractor owns the copyright in whatever you’ve hired them to create. You only get an implied license to use the content. The contractor can stop you from using the content in a different way than the original project.

If you find yourself in that situation where you thought you owned the contract but you only had a license and you wanted to become the copyright owner, you would need to have the contractor sign a copyright assignment to give it to you. This is a contract that must be in writing. And since the contractor owns the copyright, it’s his/her prerogative to charge whatever they want to assign it to you. So that means they can basically make you pay for the same work twice.

So how do you avoid being in this situation? When you work with independent contractor, you need a solid contract for each project that explains what you’re hiring them to create and who will own the final product. Many contractors I’ve worked for have requested contracts that state that the hiring company only owns their work product when the company has paid its bill in full. If the company doesn’t pay its bill, the company doesn’t own the content and the contractor has legal recourse to prevent the company from using their work.

Legal Side of Blogging Book CoverIf you work with independent contractors on a regular basis, consider having a lawyer create a contract template for you to ensure that the document is complete and that all your interests are protected.

If you need a legal resource for laymen on this topic, I recommend my book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed. It covers a lot of the major issues that apply to copyright and the internet. If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me.

Please visit my homepage for more information about Carter Law Firm.

Check the USPTO Database Before You Brand

Fake Brands (Weird News No. 4) by "Caveman Chuck" Coker from Flickr (Creative Commons License)

Fake Brands (Weird News No. 4) by “Caveman Chuck” Coker from Flickr (Creative Commons License)

I asked my friends who work in marketing, who create campaigns and brands for a living, whether they check the U.S. Patent and Trademark Office (USPTO) database before finalizing a project for a client. I was surprised when all of them said, “No.”  To me, this would be an obvious step in the brainstorming or idea development process.

Let’s go over a little bit about trademarks. A trademark is the name, slogan, logo, etc. you put on your company or products to differentiate them from your competition. A trademark has two components – the mark itself and your product or service. That’s why it’s permissible for two unrelated companies to have similar names – like Delta Faucets and Delta Airlines. You can’t put a trademark on your company or product that is so similar to your competition that consumers are going to be confused about what they’re buying.

If you create a brand but don’t register it with the USPTO, you only get common law protection for it which extends only as far as your geographic market. You also risk being in the Burger King situation where you could be limited in your ability to expand if someone registers your trademark after you’ve started using it.

When a company registers their trademark, they get the exclusive right to use their mark on their category of goods and services everywhere in the United States. No one can enter the marketplace with a confusingly similar name on similar products or services, even if they do it in a geographic area where the trademark owner isn’t doing business. They can send you a letter demanding that you rebrand or sue you for infringement. This happened to a friend of mine who had a dog training business that had a similar name to a dog trainer who lived across the country. Since the other guy registered his trademark for dog training, he had the authority to make my friend change her business’ name.

The USPTO trademark database isn’t that hard to use if you’re only looking up words. When you are researching potential names and slogans, make sure you look up various spellings of the word(s) and watch out for the word you want in other languages. It’s a good idea to verify with a trademark that the name or slogan you want as your trademark is available. You don’t want to invest a lot of time, money, and energy in creating a brand that you can’t have. I’ve worked with too many companies who have had to rebrand their company or a product because they got a cease and desist letter from someone who had registered the name.

I also made a video about the importance of checking the USPTO database when selecting a brand.

I’m also a huge advocate of registering the trademark in your blog because if someone else takes your name, it can essentially shut down your site. If you want to chat more about trademarks, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.

Arizona Drone Law Basics

Drone and Mood by Don McCullough from Flickr (Creative Commons License)

Drone and Mood by Don McCullough from Flickr (Creative Commons License)

There has been a lot of controversy and questions around unmanned aerial vehicles – aka drones. According to Amazon, you can get one for under $100 and they look really cool. If you equip a drone with a camera, the potential footage is amazing. Improv Everywhere used one this year to shoot part of Black Tie Beach 2014. Apparently there’s a way to attach a beacon to yourself and have your drone follow you, which could make for amazing footage if you’re involved in a hobby like surfing or rock climbing.

I’ve been getting questions about the legalities of having a drone in Arizona. So I did some research and here’s what I’ve learned so far:

Arizona does not have any drone-specific laws at this time. You can legally fly a drone, with or without a camera, Arizona; however, there are some guidelines about that. You have to keep it under 400 feet and you can’t fly it within five miles of an airport without permission.

The Federal Aviation Administration (FAA) prohibits the use the drones for commercial purposes. That means you can’t make money from your drone. You can’t sell services that include using a drone – like a video production company or a realtor who wants to use a drone to shoot footage of properties that are for sale. It also means you can’t run ads on the videos you shoot with your drone and post on YouTube. I have friend at Fox 10 Phoenix and he said the station has a drone but they don’t use it because they make money by sharing videos of newsworthy stories.

If you injure a person or their property with your drone, you will be responsible for paying for the damages. This is same rule that applies if you’re playing catching with a friend and you accidentally hit your neighbor with your ball or throw it through their living room window.

There have been discussions about whether the City of Phoenix will create city ordinances around drones. I think drones should be dealt with at the state level, not the city, especially a metropolitan area like Phoenix where there’s not space between where one city end and the next begins.

One of the challenges that I expect will emerge related to drones is related to the fact that it’s not always easy to tell who is operating a particular drone. Unlike remote-control aircrafts, you don’t need line of sight to operate a drone. If someone violates the FAA rules or any law with a drone, it may be difficult to identify the operator.

This is an emerging area of law that I will keep an eye on. The FAA’s rules regarding hobbyists’ use of drones are expected to be released in 2015. You can learn more about the FAA’s guidelines for drones here.

Fellow Phoenix attorney and overall nice guy James Arrowood is also following developments in drone law. He did a fantastic interview on PBS about this topic recently.

If you want to chat more about this topic, feel free to connect with me on TwitterFacebookYouTubeLinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.

Important Money Lessons for Entrepreneurs

Piggy Bank Awaits the Spring by Philip Brewer from Flickr (Creative Commons License)

Piggy Bank Awaits the Spring by Philip Brewer from Flickr (Creative Commons License)

I’ve been listening to, and loving, The Mistake Podcast, hosted by Peter Shankman and Peter Keller. Each week they interview a successful business owner or C-level executive about their biggest business mistake and what they learned from it. Shankman and Keller started this podcast earlier this year and I’m really enjoying hearing about others’ experiences building their businesses. Ironically enough, I usually listen to The Mistake Podcast during my morning run.

Some of the mistakes featured on the podcast have been about poor money management. I wanted to share these people’s mistakes with you so you can learn from them instead of repeating them.

Now, I’m not a financial expert or an accountant, but I’m lucky that I had a fantastic business mentor who showed me how to read and analyze my financial reports during my first year in business. I also have an awesome accountant who takes care of me and my business from a tax perspective. So, I’ll share a little about how I manage my business’ financials.

Understand Your Business Cycle and Cash Flow Needs
Gary Kanning of 420 Science, a business that makes “stash jars” learned the hard way how important it is to understand your business’ financial reports. He’s in a business where there a cycle over the course of the year with periods of high volumes of sales and lower volume months. Lots of businesses have this type of ebb and flow and it’s important to plan ahead so you’re not short on cash or inventory when you need it.

One of the gems from Kanning’s interview is never assume that everything is OK. If you’re the owner, it’s your responsibility to check your financial reports like your profit and loss statement and cash flow report to see where your money is coming from, where it’s going, and watching for patterns so that you can be ready when there’s a natural drop off in business.

One of the benefits for me as a solo business owner is it’s all on me to do everything. The only work related to the business’ finances that I don’t do myself is my taxes. Every week, I pay my bills. Every month, I have a two-hour meeting with myself where I pull my reports from Quickbooks and analyze  how the business is doing, look back on whether I achieved the goals set for the previous month, and make plans for the future.

More Profit = More Taxes
Amanda Steinberg is the founder of Daily Worth, a financial media company that educates women about personal and business finance. She’s also a serial entrepreneur. She had the fortunate experience of growing one of her businesses from $300K to $800K in one year, and she wasn’t ready for the $90K tax bill that came with it. She recovered from this mistake and learned a lot about the financial side of running a business.

If you’re an entrepreneur, there’s a good chance you pay quarterly taxes. That amount will be based on your financial performance the previous year. If you have a substantial jump in financial success, you could be writing a big check come April 15th despite paying your quarterly taxes. If you are having this type of success, you may want to talk with your accountant about what that will mean for you tax-wise so you won’t be caught off guard.

I meet with my accountant twice a year. I sit down with him when I drop off my materials for him to do my taxes and I meet with him every December to discuss how the business did for the year, to determine if I should do a spend down before the end of the year, and he gives me ballpark figures on what I can expect to pay in quarterly taxes and for my annual taxes the following year. Since I’m paranoid, I increase this amount on my projected financial reports and plan accordingly. If it ends up being less, I’m pleased; but I’d rather be prepared to pay more than worry about my cash flow.

I’ve said it many times – a good accountant is worth their weight in gold, and yes, every business owner needs one. But your accountant can only help you if you give him/her accurate information about your business, so maintain an open line of communication.

If you want to chat or commiserate about the joys and challenges of being an entrepreneur, feel free to connect with me on TwitterFacebookLinkedInGoogle+YouTube, or send me an email. You can also subscribe to the firm’s newsletter. If you want more information about Carter Law Firm, please visit the homepage.