Shontavia Johnson (00:00):
What’s up,
y’all. Welcome to The Shontavia Show, where my goal is to help you start a
business based on your life’s vision. This ain’t gonna be your daddy’s business
advice. I’m laser focused on entrepreneurship in the 21st century, vision and
breaking the traditional mold. If you can get with that, you can get with me,
be sure to visit shontavia.com for more episodes, blog posts, and other
content. Thank you for listening. The show starts now.
Shontavia Johnson (00:28):
Hey everybody.
I’m Shontavia and this is another episode of The Shontavia Show. Well, I hope
to inspire you to build a business based on the vision you have for your life.
I am so excited y’all to have Sherrica Sims here with me today. Thank you so
much for being here.
Sherrica Sims (00:43):
Thank you for
having, me.
Shontavia Johnson (00:44):
I am so
excited that Sherrica Sims is here. She is the dynamic creative force behind
the Simply Sims brand. Sherrica is a lifestyle blogger, a parenting expert, a
host, a speaker, a motivator. She’s got the most beautiful natural hair I’ve
ever seen too, and Sherrica’s goal is to empower women to rediscover their
purpose, their passions in life by sharing her family’s precious, yet hilarious
moments. You may have seen Sherrica’s daughter, if you’re one of the 13 million
people who saw their viral YouTube video in 2014 what was the title of it?
Sherrica Sims (01:28):
I think my
daughter, Tiffany, she tells a story about how she stole a doughnut – something
along those lines.
Shontavia Johnson (01:35):
So her three
year old — it’s been five years or so, 2014, her three year old tried to get
out of trouble cause she took a doughnut maybe when she wasn’t supposed to.
They’ve got 13.2 million views. I will link to that video in the show notes for
y’all, but Sherrica has agreed to come here today to talk about going viral,
starting a business out of that unanticipated viral moment and all the stuff
that goes into that.
Shontavia Johnson (02:05):
Because you
don’t get a blueprint when you go viral. Nobody gets a blueprint when they go
viral. So, so excited to have you here today.
Sherrica Sims (02:13):
Thank you
again.
Shontavia Johnson (02:15):
So why don’t
you tell the folks a little bit about yourself, about where you’re from, about
who Sherrica is and how she came to be.
Sherrica Sims (02:24):
So you can
tell I’m not really shy, but a little apprehensive. Sometimes to talk about
myself, but let me just give it a try. Um, but I am from Liberty, South
Carolina, a lot of people don’t know, but it’s between Greenville and Clemson
and I grew up in one of the probably the most churchy homes that you’re ever
gonna find literally. And so we were in church all the time. Um, so at this
point I was like, you know what, I didn’t have to talk about church to get
people to follow me or be interested in us. Just be yourself. So, and how old
am I now? 37. Just kinda realizing, just let it go and just be yourself. And
that’s what we are. And I think going viral was just literally us being us and
me parenting the way I parent.
Shontavia Johnson (03:13):
Yeah, so talk
about that video. How did it come about? What was Tiffany doing?
Sherrica Sims (03:18):
So basically
back in 2014, the technology just isn’t what it is today. So you couldn’t send
videos that were more than like 30 seconds via text message or anything or
email. So I would upload little videos on YouTube for my husband and my mom and
dad and my brothers to see. And that video just happened to be one of the ones
that went viral. So she had just, it was like 7:30 in the morning. I’d just
fixed them breakfast. She had just had breakfast. I was doing my normal thing
of cleaning out what was, was leftover and a box of doughnuts had like three in
there. I was going to throw them out, got distracted. I taken it from my hiding
place cause all moms have a hiding place. Okay. I took it from the hiding
place, put it on the counter cause I was going take it out with the trash
because they were stale. Um, got distracted somewhere somehow. And saw her come
out of the corner of my eye. She was munching on it and I was like, Tiffany,
what do you have? And she was like nothing. And at that stage in her
development, she had started to tell stories whenever I would catch her being,
you know, a normal three-year-old. But my husband didn’t understand what those
were like cause you know, she’s the golden child, a little girl. So that’s what
that moment was, was me showing him proof of her storytelling when she gets in
trouble. So it wasn’t like a plan. It literally was just a moment.
Shontavia Johnson (04:44):
So how did it
go viral? You sent it to your husband and family…
Sherrica Sims (04:47):
Yeah I shared
it on Facebook, like the link on Facebook. Um, then, honestly just kind of give
you the ins and outs. So a lot of people don’t go viral naturally, organically
anymore. So we actually did sign with a company because I got contact with the
company. But the video was at like 5,000 views and they were like, “Hey,
we think this has potential to go pretty big. Would you mind signing this
contract with us?” Well, at first they were just offering like $100 and
you’ve relinquished your rights and then, or you could sign it, you know,
option B, which was um, you get a percentage or they get a percentage, like 20%
or 15%, whichever you feel more comfortable with, um, in the hopes that you
would gain more money from it. And this was out of left field for me. I had no
idea that this was actually an industry because I didn’t know about the viral
nature of anything other than just, you know, I was happy with the 5,000 views
because I was like, “Oh, people think she’s cute.” And I was like,
cause she is cute, she’s my baby.”
Sherrica Sims (05:47):
But um, we
signed this contract with them and that’s when it really took off. So they
shared it with, through like a, like I said, aggregator through the news
industry and that’s where it went on to like Good Morning America, those
places. And that’s where we got more revenue from it.
Shontavia Johnson (06:07):
But so how
does it, how do you make money off of the viral video? Could you talk a little
about that?
Sherrica Sims (06:11):
Because
there’s lots of ways…
Shontavia Johnson (06:13):
So you
mentioned that when you got 5,000 views they reached out and said, “Hey,
we can give you $100 or a percentage. So where does that money come from?”
Sherrica Sims (06:22):
So they have
deals with, um, media companies to provide videos for talking points, like
morning TV shows, um, websites. Um, that’s the whole industry that I think a
lot of video creators or people who just post on social media don’t understand
that’s even there. Um, I didn’t understand. Um, but I learned quickly and I
said, okay, they want this, then this has value so I can now charge what I want
for my content. And so I made sure that we retained ownership and that was just
licensing, giving them permission to license the video…
Shontavia Johnson (07:01):
Smart. You
know the intellectual property lawyer in me is excited that you went that
route.
Sherrica Sims (07:07):
Cause I was
like, okay, that’s not going to happen. And I made sure to add that before I
signed in the contract, that stipulation. Um, and that was probably one of the
best business decisions I ever made. And it also added something that said I
could, um, cancel this contract at my discretion.
Shontavia Johnson (07:27):
Okay. So could
you talk a little about, to the extent you’re comfortable, a little about the
finances. What does that look like with a video with 13 million views.
Sherrica Sims (07:35):
So if you want
to post anything on YouTube, you need to, well YouTube has changed their
policy, but at the time you could just monetize your content without going into
the partner program. So that meant it didn’t matter how many followers or
subscribers you had or how many views you had, you could just literally upload
anything and get advertising dollars from it. So that’s what I did. I kind of
Googled it, said, how do I make money on YouTube and follow the step by step
instructions, set up the account, um, an AdSense account. And that was really
how I made more money than the deal I made with the people because I got the
revenue from the viewership. ‘.
Shontavia Johnson (08:20):
I see – that
makes sense. Brilliant.
Sherrica Sims (08:22):
So I got
double- I double dipped.
Shontavia Johnson (08:24):
I see. That is
brilliant. So you get a contract with this company, you realize, “hey, I
could make content that has value. You decided to build an entire business
empire and brand around this one viral video. So walk us through that decision.
How did that happen?.
Sherrica Sims (08:44):
I just
realized, you know, I didn’t want someone taking advantage of my child because
it was, that’s, that’s the motivating factor is that I can’t be naive because
I’m a parent, but I’m a mom protecting her image. And that’s online forever. So
understanding, I was mapping out her future as well. Um, and then to make it
easy and not to put so much pressure on her, I made sure that the whole family
was involved. So we started to vlog our family because that’s what the audience
wanted. That was the number one thing when they were giving me, I read the
comments to see what the fans wanted to see and created that content and that’s
what kept them engaged for a long time.
Shontavia Johnson (09:25):
Oh, that’s
brilliant. So I’ve talked about on this show I talk about on my website a lot,
finding your ideal customer, your ideal client. So you went and looked at their
comments, you saw what they wanted, you went and created that. And how did that
impact your family? How did they deal with the newfound attention and all of
that?
Sherrica Sims (09:43):
Well, okay. So
my husband is the biggest stepping stone because he is, I tell him all the
time, and this is not a surprise to you, Stanley, that if it had not been for
me, he would have been living in a basement playing video games and working
from home somewhere. Cause he just, he’s an IT guy. So he doesn’t, people are
not like… He can “people,” but it’s not what he wants to do. So
this was, um, he’s been the hardest person to get kind of on board with it, but
he’ll do it. Um, so I’m changing the trajectory after five years of it being
more just me and the kids because it’s easier, you know? And that’s really what
I’m more comfortable with. Um, so I create content that reflects that, like
something that’s relatable to the audience, which is motherhood and the
obstacles, obstacles that you encounter.
Shontavia Johnson (10:33):
Oh, that’s
brilliant. So your brand is motherhood, parenting and all those things. So you
created a business and you decided you were going to be an entrepreneur and do
this. And now I know that you have worked with huge brands like Nickelodeon and
Kohl’s. How do you do that? How do you go from a viral video, a YouTube
channel, you start a business, how do you end up with Koh’s and Nickelodeon and
what do those relationships look like?
Sherrica Sims (10:58):
Okay. So yeah,
it’s, it is, that’s the key word relationships. So I, formed a relationship
with YouTube, so YouTube contacted us and at what point? Um, so I think it was
like 2016, so we were two years into it before YouTube contacted us because I
think they want to see sustainability on their platform, but they look at their
analytics – it’s Google – so they can see who’s the top creator. And um, for a
long time that was us. And um, they will put you into their network and YouTube
has a network of advertisers and they’ll recommend people to those advertisers.
Shontavia Johnson (11:39):
Oh, I see.
Okay.
Sherrica Sims (11:40):
And so that’s
how we got some of those deals.
Shontavia Johnson (11:44):
Okay, cool. So
what has that been like? So you were going about your normal life, this
happens, you start a business and when I say start a business, did you like
register LLC…
Sherrica Sims (11:54):
I did.
Shontavia Johnson (11:54):
A tax ID
number and all of that. So you make the switch to running this company. And had
you ever thought about being an entrepreneur before?
Sherrica Sims (12:05):
No. So I have
a background in social work and sociology was my major, was a social worker,
um, and decided to become a stay at home mom when I had our son. Miles is now
11, so I haven’t really worked for 11 years. Um, so Tiffany was three at this
point and I just said, you know, when I had the money coming in, I said I need
to protect this. And the best way to protect that is with the LLC because it is
a business. Um, and that’s what I did. I put everything under the name of our
company, which is Go Be Great Productions and funnel everything through that
and make sure I do the taxes, you know, taxes accordingly. We pay our taxes
just like everyone else. And I don’t keep any of that revenue. Most of that
revenue went back into getting equipment, um, just, you know, setting it up
basically. Um, and then I put it, I started a savings account for our daughter
and our son.
Shontavia Johnson (13:00):
Oh, brilliant
of course. So how does all this impact your family? So now your family is the
brand your children and you and I see your husband on some of your stuff…
Sherrica Sims (13:13):
He shows his
face – he does.
Shontavia Johnson (13:16):
So how does
that impact you when your family is the brand and the business? But it also is
your real life.
Sherrica Sims (13:21):
No that we
did… Two years ago, I’m just going to be honest. It was extremely difficult
to create content because our kids were becoming uncomfortable with people
knowing them. Does that make sense?
Shontavia Johnson (13:34):
Were they
getting recognized?
Sherrica Sims (13:36):
At school,
kids… I didn’t realize it was a lot of the kids watching our content on their
parents’ social media accounts on YouTube. So like I would look at analytics
and it was like, Hey, you have a great, um, demographic in women ages eight,
well it was like 25 to 35 and I was like, but it was really their kids watching
their content on their account. I see. Does that make sense?
Shontavia Johnson (14:00):
Yeah yeah
yeah.
Sherrica Sims (14:00):
But I’ve
always kept it family friendly. I think you want to keep that in mind. What
type of content do you want to create? If you’re going to make a business that
recognizes, or, that relates to brands because you want to know what the brands
are looking for. Does that make sense? And so you want to actually, it’s a fine
line to create what the brand’s looking for and what your audience is looking
for under your voice. So for me as a mom, my audience was great. The brands are
great, but my first priority is my family. And so when these are just show
signs of uncomfortableness or discomfort is a better word, discomfort. I said,
well, you know, I’ll pull back. And it was a sacrifice because the audience is
not happy because they want you and they become quite possessive. And that’s
what I had to realize. You know what? I am in control of this. I don’t want
this to be in control of me and my family or if it started to feel very
tedious. Does that make sense? And the work is okay. But the emotional stress
was not good for our kids. Cause they had no privacy at school cause their
friends wanted them to perform like they did on YouTube, that kind of stuff. So
I say, well let’s back off of YouTube for a little bit, even though that’s like
some money, but also wanted to make sure I balanced it. Does that make sense?
Shontavia Johnson (15:24):
Yeah. No, it
definitely does. And kudos to you for prioritizing your kids over the money.
And I watch a lot of family blogs and family accounts on YouTube and that kind
of thing. I don’t think everybody probably is doing that,
Sherrica Sims (15:38):
No, they don’t
and nobody understands that either. So we have a lot of people behind the
scenes that we’ve worked with who don’t, um, who don’t understand why just
Sherrica, just do it, just do it. But I can’t just do it until, cause it’s not
just me. It’s the family. So that’s been my thing. They’re my number one.
Shontavia Johnson (16:01):
So you
mentioned – You mentioned the fans want things from you. The brands want things
for you. What do they want? What do brands want from you? Once you go viral and
you have this family brand, what do the fans want and how did you decide when
it is the right thing and when it’s not? You mentioned your kids, but what are
the other considerations? Even if they wanted to know, how do you decide?
Sherrica Sims (16:25):
All right, so
brands typically will have requested an increased production value. Does that
make sense? So like I’m usually with my camera or my, well my little vlogging
camera, but it’s really just been moments just us being us, but they want a
more, I guess scripted something that they can easily see themselves plugged
into. Um, which is difficult too because I’ve seen the same brands work with
other creators who have similar approaches. But I think the only difference is,
is being a woman of color that they think you have to be perfect. You know what
I’m saying? The standard desire. And I was uncomfortable with that because
again, I think we have quality content. It just doesn’t look overly-produced
cause if it’s overly-produced, you’re going to lose some of your fans. Does
that make sense? So I’m of the mindset is you can have us as on-air talent. So
if you want us to be highly produced and you pay for it and we’ll show up for
your commercial – does that make sense?
Shontavia Johnson (17:27):
It does. It
does.
Sherrica Sims (17:28):
So as, and I
realized I was telling you earlier, um, as the talent, you get to say those
things and if you have that value, um, you get to control the narrative.
Shontavia Johnson (17:39):
So how do you
get there? Cause I would imagine most people, if they were in your shoes and
they have like Nickelodeon saying, “Hey, we want you,” or Kohl’s
saying, “Hey, we want you, or anybody, say, “Hey, we want you,”
some folks would feel like, Oh well I should do whatever they want. How do you
get to that point where you can make that choice? where you say, “I’m the
talent, I get to decide.”
Sherrica Sims (18:03):
Because it was
a lot of tears. Okay. Like in private cause you know, I want this, you know,
this is like I’ve seen where this can go, I want this. But, um, I think as a
mom, a wife, a mother, a woman, you sacrifice, unduly sometimes, but I had to
realize that anything that’s going to be worth it, you have to go through that
struggle time. Does that make sense? Yeah. So it’s been more of me realizing
who I am in shaking off who other people have told me I had to be. Does that
make sense? And so, um, the brands were doing the same thing I felt and the
fans are doing the same thing. So I said, well, I don’t want to lose myself in
people pleasing. And, I think a lot of creative people, creative types are
highly sensitive to rejection or um, just the perception of others, period. So
I had to realize I wanted to do something different. I have control and I had
to get comfortable in my own skin and understand that rejection is going to be
a part of it. And say, if a brand doesn’t like me as I’m presenting myself,
then they just are not a brand I’m willing to work with no matter how much
money may come.
Shontavia Johnson (19:18):
So could,
could you speak a little to that concept of income? So you know, like you said
when you went viral, the first thing you did is said you Googled like how do I
make money on YouTube? So how do you, how do you make money as a content
creator? What are the various streams that can come in?
Sherrica Sims (19:37):
Okay. So you
have to first, if you’re going to look at any platform, you have to learn their
policies, their terms and conditions. You have to read those pages and pages
of, um, things that we typically just say. Oh, I agree. But there’s a lot of
information in that. Um, for YouTube in particular, um, I follow the blogs,
their YouTube blog, and they, there is a wealth of information about their
policies and how they implement them and how that affects creators. So I,
that’s what I do. I follow that. I look at Instagram. Um, same thing with Tik
Tok cause which is a new and upcoming thing to see how will that effect, um,
what I’m trying to do and making money. So I think most people, if you’re going
to go viral, you need to have something that you can fall back on too. So have
a business idea or I have a business already that you can kind of promote on
those channels. Does that make sense? While people are looking at you? So one,
um, I saw a comedian who did that – he had a viral video with his son and he
started his world tour, is what he’s calling it. Um, stuff like that. Yeah. I
think, um, that I didn’t have access to when we started or I didn’t even know
about. I’m learning from other people even now how they create other streams.
So people do merchandise on their websites. Um, lots of different ways you can
make money. We’re talking about being a speaker, lots of different avenues. Um,
it’s just what you’re comfortable with and what do you have a talent for.
Shontavia Johnson (21:12):
So what do the
brands you work with want you to do? Is it commercials? Is it, I, I think I saw
on one of your Instagram channels, you visited a location. What do they want
you to do? And could you talk about what you’ve done thus far?
Sherrica Sims (21:27):
So we’ve done
a lot of commercials. We did one with Kohl’s that was their commercial, a
social media campaign. Um, which was really fun. We went to New York and filmed
it. We were there for a week. It was really awesome. We came back, um, this
year, earlier this spring we went to the Nickelodeon resort in Punta Cana and
we were a part of their social media video campaign as well. So, um, it’s all
about, you know, again, finding brands that are relatable. So my kids love
Nickelodeon. I don’t have a problem working with them. They’re respectful of
the family, you know, that was something they wanted everybody to be involved
with. Yeah. So I was like, good. And the team was amazing. Everybody was great.
So I would love to work with them again. You know, that’s a relationship
builder. But as the talent, I’m learning that you want to work with people who
respect you and respect your boundaries. Um, so that’s really good for me. And
so they will be good for me to work with again. Um, but that was just, and I
think it helped me see, it helped me dream bigger for our vision, my vision for
the family. Does that make sense? That now I’m kinda wanting to go more into
the travel industry and maybe being, becoming travel influencers because
especially in the Southeast, a lot of people don’t travel outside of the
Southeast, um, on a regular basis. So I wanted to show them that it’s possible
that there’s a whole world out there and I want to show my children that too.
So yeah, that’s, that’s my, my goal, my vision as an entrepreneur for my, for
our business moving forward.
Shontavia Johnson (23:02):
So if someone
wants to become a content creator/influencer online, what do you tell them they
need to do? Like what are the first three things you need to do? If you want to
create an online platform where you are the talent, where you are the content
creator.
Sherrica Sims (23:20):
Okay. The
first thing you need to do if you want to become an online influencer or
talent, whatever is know your voice because your voice is going to draw your
audience. So I’m not just know your audience, but also like the way you engage
with them. How much are you willing to share of yourself? You know, cause um,
it can be very, it can be as invasive as you allow it to be, you know? Um, then
there’s, um, like if you want to work with brands, you have to know what brands
you wanna work with and then pair up your, your content to line up with that.
Um, and then probably the third thing would be just do it. Just do it.
Shontavia Johnson (24:05):
So what do you
mean by pairing your content with the brands? So do you mean like make it
visually look like their stuff, or…?
Sherrica Sims (24:12):
Or something
that they could see themselves plugged into? So if I wanted to work with Kohl’s
again, I would probably look at what Kohl’s is doing on their social media, on
all platforms. Um, Facebook, all the major platforms, Facebook, Twitter,
Instagram, YouTube, see what they are doing currently and then create that same
or similar type of content. Meaning if this highly produced, maybe abstract or
colorful, I would like to make sure that my stuff lines up with theirs. My
content lines up with theirs. Does that make sense? You’re not mimicking them,
but you’re being inspired by them because that’s someone that you want to work
with.
Shontavia Johnson (24:47):
Got it. Cool.
So who’s helped you? So you just gave amazing advice to people if they want to
get into this space. Who has helped you go from, you know, a viral moment to
creating a sustainable business?
Sherrica Sims (25:02):
So that’s been
something, again, I think I told you earlier, it was just you have to open
yourself up to it. So like I had to go back to realize what was holding me
cause you creatives will have creative blockage, um, and they’ll have their
hangups. So I had a hang up with, you know, it’s like I don’t really trust a
lot of people so I don’t realize where did that come from? Kind of going back
to growing up in Liberty and you know, kind of being the odd woman out all
girl, you know, odd girl out. Um, and just saying that’s not me anymore. Letting
that go and then reaching out to people who are, um, who are impactful in their
own right, being inspired by them. One being you, Shontavia, who’s helped me
out to see my value as well.
Shontavia Johnson (25:49):
So Sherrica
was a client of mine for a while. We worked together 4-5 times.
Sherrica Sims (25:54):
For the brand
and understanding that you can give yourself permission to evolve your brand.
It doesn’t have to stay stagnant. Um, so someone like yourself, um, we’ve
signed with another agency, out in LA cause I realized I can’t do it all by
myself and that says self sufficient. Yeah, there’s self sufficiency that we
kind of have to go through in life sometimes. And so being there for everybody
else made me a people pleaser. Like I said earlier in stopping doing that. And
just really focusing on, like I said, the goals I want to have for our family
that I do have for our family and going for it. Um, that’s been like the main
helpers is seeing, just saying you can’t do it by yourself. And that’s okay.
That doesn’t make you a failure. Yeah. Help is, you know, that is courageous.
That is strength. That is most entrepreneurs that you see who are on it, that
are blowing our minds now with the things that they’re creating and doing and
how they’re managing their businesses. They have a whole team, a whole team of
people, and you can’t do it all by yourself. So that’s been really helpful for
us. Is just to realize it well for me as I lead the family in this avenue, so
let it go and just trust other people to do what they do well for me.
Shontavia Johnson (27:06):
Yeah. Oh man,
that is such, such, such good advice, Sherrica. I so appreciate that in
particular. So what’s your vision? Last question. What is your vision for the
Simply Sims brand, your brand, your family’s brand? What is your vision?
Sherrica Sims (27:25):
The sky is the
limit. That is my, my, um, my vision. The sky is the limit in wherever we,
wherever we want to go. We can do it as long as we’re together and we’re doing
what brings us joy. Cause I feel like if it brings me joy it’ll bring others
joy. And that’s my vision for, for Simply Sims as a brand.
Shontavia Johnson (27:48):
So, so where
can people find ya’ll online?
Sherrica Sims (27:51):
Let me plug.
Um, no, they can find us on YouTube at Simply Sims. Um, on all platforms, we’re
either @SimplySimsFamily or @simplysimsfam because it would be too long. So
yeah, they could find us literally on every platform. Twitter, Facebook, um,
Instagram even Tik Tok. Okay. That’s the new and up and coming one girl, we
have to talk about that later.
Shontavia Johnson (28:13):
Oh hey, I have
Tik Tok on my phone. I think I’m too old to really get it,
Sherrica Sims (28:20):
That’s the
thing, we all feel like we’re too old, but it is not, there are women, men,
grandparents on that platform killing it.
Shontavia Johnson (28:26):
Oh, I, I
believe it. I am confused by VSCO girls, but I’m learning. I am learning. Tik
Tok and we will be on Tik Tok together pretty soon. How about we do something
together?
Sherrica Sims (28:37):
I got you,
girl.
Shontavia Johnson (28:37):
All right,
cool. So everybody, I hope you enjoyed this conversation as much as I did.
Sherrica thank you so much, you are so wonderful. I love you and your family
and what you’re creating, you know that already.
Sherrica Sims (28:51):
Good people,
Shontavia is good people as my grandma would say.
Shontavia Johnson (28:54):
Thank you. So
if you guys have questions about creating content about what happens when you
go viral, if you already have an online business and you’ve experienced some of
these same things, come over to shawntavia.com to this particular post.
Shontavia Johnson (29:10):
Drop a
comment. Let us know what you are experiencing and how you know how maybe we could
be helpful to you when you’re working in your platforms. Thanks.
Shontavia Johnson (29:20):
Thank you so
much for listening to this episode of The Shontavia Show. If you enjoyed this
episode, please be sure to like, subscribe and leave a comment wherever you’re
listening. You can find me on social media everywhere, Facebook, Instagram, Twitter,
LinkedIn, and wherever else @ShontaviaJEsq. You can also visit me at
shontavia.com to find a transcript of this episode along with other show notes.
While you’re there, please be sure to subscribe to my email newsletter. The
information shared in this podcast and through my other platforms is designed
to educate you about business and entrepreneurship and I love to do this work.
While I am a lawyer, though, the information I provide is not legal advice and
does not create or constitute an attorney client relationship. The Shontavia
Show is a LVRG Incorporated original. The show is recorded on site in South
Carolina and produced at Sit N Spin Studio in Greenville, South Carolina.
Original music and sound design is by Matt Morgan and Daniel Gregory. Mixing
and mastering is by Daniel Gregory and the video is by GVL Media.
(00:00):
What’s up, y’all. Welcome to The
Shontavia Show, where my goal is to help you start a business based on your
life’s vision. This ain’t gonna be your daddy’s business advice. I’m laser
focused on entrepreneurship in the 21st century, vision and breaking the
traditional mold. If you can get with that, you can get with me, be sure to
visit shontavia.com for more episodes, blog posts, and other content. Thank you
for listening. The show starts now.
(00:28):
What’s up everybody? I’m Shontavia
and this is another episode of The Shontavia Show where I want to inspire you
to build a business based on your life’s vision. Today’s episode is all about
copyrights and what the law actually has to say about it. So for many people,
I’d say probably even most entrepreneurs and content creators, copyrights are
the things that intersect with your business and your day to day operations the
most, more than probably any other kind of any other, probably more than any
other kind of intellectual property law.
(01:06):
Intellectual property is this
umbrella term that people use to refer to patents, trademarks, copyrights and
trade secrets altogether and copyright law is just one of those types of
intellectual property law. The law is actually relatively simple on its face,
but it is really, really complicated in its application. In fact, one of the
things I want to do on this show today, I have a lot of questions about, you
know, what is where, I’m maybe stepping on the line a little bit, but at any
rate, I want to use this episode to start with the relatively simple concepts
of copyright law and what it actually says. I’ll do later episodes about
specifically how copyright law might impact you online and that kind of thing.
But before we get started with what the law has to say, I want to start with
one of my favorite entertainers of all time, who is Missy Elliott and what she
has to say about it.
(02:05):
So Missy has this song from 2001
called Get Your Freak On. It’s absolutely probably one of my favorite songs on
the planet. I probably have sweated out many a perm to this. I don’t have a
perm now. Haven’t had one in a decade, but back in the day sweated out many a
perm to that song. The video too is amazing. Go watch the video if you’ve never
seen it. For my youngins, there are lot of you know folks from my childhood, my
college days and that video, LL Cool J, Ludacris, Nate Dogg, all them. Anyway,
in the song there’s this line in the song where Missy says, “ain’t no
stopping me, copywritten so don’t copy me.” And basically if you could
boil copyright law down into one sentence, Missy Elliot has probably done it
better than anybody on the planet, including all these high priced lawyers like
I used to be.
(02:53):
So basically that is the point. If
you hold a copyright in something, you get the right to keep others from
copying that thing. So thank you Missy for breaking it down for everybody.
There’s a lot more of course. And that’s really what I want to talk about in
this episode, how you can start to understand this big term,
“copyright,” and understand the big broad principles. Because like I
was saying before, really copyrights are pretty important for entrepreneurs and
content creators. And I want to say too about content creators. That is a term
that gets thrown around a lot now. The phrase is always on the news. Content
creator jobs are on the rise. People are calling themselves content creators. I
call myself a content creator and there are some very successful content
creators making a ton of money on like Instagram and Facebook and lots of
different social media platforms.
(03:55):
Everybody wants to get into the
content creator game, especially because the internet is ultimately a machine
for sharing and reproducing and repurposing content and the things we make. So
what I would like to do is start real big and we can drill down is as much as
people want.
(04:15):
Almost every facet of copyright
doctrine though has been impacted by the internet in some way. So the law that
I’m going to talk about here today was created, in some instances, hundreds and
hundreds of years ago. So you’ll start to see why in your own business,
especially if you’re operating online, there are a ton of questions about how
this stuff applies for us here in the 21st century. But let’s start with the
basics.
(04:43):
So in the United States, the, the way
in which we get to copyright law is through the United States Constitution. So
the framers of the US Constitution thought intellectual property and content
creation was so important that they wrote it into article one, section eight
clause eight of the Constitution.
(05:04):
This was one of the first articles
even passed and one of the first days of the first Continental Congress. And
essentially the Constitution gives Congress the power to promote the progress
of science and the useful arts by granting people who build stuff and create
stuff, exclusive rights in those things. So that is where we start. With the
Constitution. What I’d like to do from that kind of constitutional statement
though is break down what that looks like as a matter of law, meaning what is
required and what is not required in the United States right now as it relates
to copyright law.
(05:45):
So there are three things that are
required in anything else you hear is probably inaccurate or doesn’t tell the
complete picture. So first, what is required is “orginality, “the
second thing required is a “work of authorship.” And the third thing
that is required is “fixation.”
(06:06):
And in the United States that’s all
the law actually requires: originality, work of authorship and fixation, and
anything else is not a copyright requirement.
(06:17):
And I’ll talk a little bit about some
of the things that are not required. So you’ll know when you get bad advice
from folks. So first in terms of originality, what that really means, what at
least the courts have said that means is that you must independently create the
content or create the work.
(06:36):
And second, there must be a minimal
degree of creativity. So what does all that mean? Independent creation
basically just says you have created the thing, you’ve not copied it from
anywhere else. Go back to Missy Elliott’s definition.
(06:53):
You’ve created something without
copying anyone else. So, even if I’m sitting in a room and you’re sitting in a
different room and we write exactly the same poem, I mean that would be pretty
strange, but if we wrote exactly the same poem with exactly the same words, we
could both own a copyright in that work because we have independently created
that work as long as we meet those other requirements.
(07:19):
So independent creation, pretty easy
in most instances to deal with. I mean there’ve been some really strange things
that happened in the past few years. So there was like a question recently
about whether a monkey could own a copyright in a selfie that it took with
somebody’s camera, but weird things like that aside. Independent creation is
pretty simple to get to.
(07:42):
The second thing is a minimal degree
of creativity. So what’s that mean? A minimal degree of creativity. It’s a
really, really low bar, at least in the United States. A really, really low
bar. So like I have three kids, they’re nine, four and two right now. They like
to create things all over my walls, all over my house.
(08:04):
And where they’re creating probably
has that minimal degree of creativity as a matter of law. There’s a really
famous case about what it means to have a minimal degree of creativity and it
involves something, for the youngins who might be listening you probably
haven’t seen in your lifetime, which is a phone book and the phone book boys
and girls was a thing that listed everybody’s phone numbers back in the day and
they did it in alphabetical order with people’s last names, their phone number
and their home address. And there was this famous case called Feist vs. Rural
about whether or not if one person made a phone book with everybody’s name in
alphabetical order with their phone number and their address, whether or not
that could be considered copyrightable and have a minimal degree of creativity
so that they could keep people from copying their phone book.
(08:57):
What the court said in that case was
that is not a minimal degree of creativity if you’re just putting stuff in
alphabetical order that doesn’t meet the standard. So the bar is really, really
low for a minimal degree of creativity. So listing things in alphabetical
order, not creative, but the bar is still pretty low.
(09:20):
If you have little kids in your
family, they’re probably creating things with a minimal degree of creativity.
So that’s the first requirement for copyright law.
(09:31):
The second is something called a
“work of authorship.” And what the work of authorship means is
there’s a list of different categories of things that are copyrightable in the
Copyright Act, which is the law in the United States that deals with all of
this stuff. And I’m gonna read the list and talk a little bit about the things
on the list that are most relevant.
(09:57):
What I’ll say though is this is not
an exhaustive list. Courts have said you can add new things to the list if you
can make a good enough argument for them. So I’ll list out the eight things
that are mentioned in the law. Talk about a couple of things that have been
added to the law over time.
(10:16):
So the first thing as a matter of
law, that is considered a work of authorship, meaning it can receive copyright
protection are literary works, so like books, poetry anthologies, those types
of things. Books are considered copyrightable, things that are literary works.
(10:37):
Number two, musical works, including
any accompanying words. So if you have a song that is the audio and the lyrics,
those things, those musical works are copyrightable. They are considered works
of authorship.
(10:52):
Dramatic works. So theater plays,
that kind of thing, including the music, those things are copyrightable.
Pantomimes and choreographic works. They shows up a lot with dancers, with
ballet, with jazz, with tap, that kind of thing. Choreographic works, things
that need to be choreographed, pantomime.
(11:14):
Number five, pictorial graphic or
sculptural works.
(11:19):
Number six, motion pictures and other
audio visual works.
(11:24):
Number seven, sound recordings.
(11:26):
Number eight, architectural works.
(11:29):
So that’s what the law says, at least
as a foundation. These are the things that are copyrightable. Now again, this
is a non exhaustive list. So other stuff that’s not listed here could be
considered copyrightable.
(11:42):
Some things at least in the 21st
century that could be relevant for you to know that are copyrightable are
things like websites and software. So like if you’re developing an app, the
software behind that app is considered copyrightable and websites, so if you
scroll to the bottom of any website, you’ll see a copyright notice at the
bottom.
(12:04):
I’ll talk about copyright notices in
a little while in this episode, but copyright notices at the bottom of every
website because websites can be considered really a combination of a lot of, a
lot of the things I just mentioned.
(12:17):
There are some things that copyright
law does not protect, right, and so some of those things include ideas,
procedures, processes, systems, discoveries, principles, concepts, methods of
operation, usually that kind of stuff, like when you’re talking about ideas,
procedures, processes, systems, discoveries, that really is more in the patent
realm.
(12:48):
Copyright law protects those works of
authorship. That list that I just mentioned a few minutes ago, and you can try
to add things to this list.
(12:56):
Sometimes you’ll be successful,
sometimes you won’t. A lot of that depends on frankly, ultimately you being in
court or, or fighting with someone about whether your thing is copyrightable
you end up in court and the court interprets whether or not your thing should
be added to the list.
(13:13):
There was a lawsuit a few years ago
about whether gardens could be considered a work of authorship – court said no,
under that set of circumstances, gardens, because they’re flowers, they grow.
You don’t need really human interaction for things to grow in that way. Gardens
are not considered works of authorship. So now you can be creative but you
might not be successful.
(13:36):
So that’s the second requirement.
Works of authorship. Again, the first was originality.
(13:41):
The third requirement is something
called fixation. So I’m gonna say the legal kind of term, the legalese, and
then explain what I mean. But when we hear the term fixation, what that means
is that the work is fixed in a tangible medium of expression, such that it can
be perceived for more than a transitory duration. And what that basically means
is if you have created a work of authorship, it’s something we can see for more
than a brief moment it’s something we can perceive for more than a brief
moment.
(14:14):
We can experience, we can maybe touch
and feel it if it is, you know, some type of architectural work or whatever,
but we have to be able to see it, perceive it for more than a transitory
duration.
(14:28):
So what kinds of things might not be
considered fixed? So like blowing a bubble, you might blow a bubble, it creates
a circle or a sphere or whatever for a short period of time and then it bursts.
That would not be considered fixed cause it’s not perceivable for more than a
transitory duration.
(14:49):
For my artists out there. Things that
might not be considered fixed are, like, freestyles unless you’re
simultaneously recording that freestyle or, I mean it’s not a freestyle if you
write it down beforehand I guess. But unless it’s written down somewhere or
being simultaneously recorded, it is not considered copyrightable. Same with
like a parade unless it’s being recorded in some way. Photos are being taken.
(15:17):
The parade itself would not be
considered fixed unless it’s also being recorded in some way where we can see
it for more than a transitory period. Extemporaneous speeches, like things
you’re just saying or doing off the dome without being recorded. So if you are
in that universe of improvising, of doing extemporaneous stuff where you just
saying stuff off the top of your head or so like freestyles I mentioned
earlier, that kind of thing. Then you also want to be recording, writing things
down in a way so that those things are copyrightable.
(15:53):
Otherwise, if it’s not fixed, it is
not copyrightable.
(15:57):
So once you meet those three
requirements, at least in the United States, you own a copyrighted work. You
don’t actually have to go register anything with the Copyright Office. It does
not have to be brand new or or novel in any way.
(16:14):
It actually doesn’t even have to be
good. There’s no requirement that the thing you create is even aesthetically
pleasing or has any kind of creative value as long as you meet those three
things. Original work of authorship fixed in a tangible medium of expression,
and again, you actually don’t even have to register anything with the copyright
office.
(16:35):
So you can, but you do not have to.
If you choose to register your copyright with the copy.. Your work of authorship
with the copyright office or not, no matter what you decide to register or no,
you can still use a copyright notice and using a copyright notice just makes
the public aware that you’re staking your claim in the ground saying, Hey, I
have a copyright claim in this work. And so a notice you’ve seen them a million
times probably it’s usually the C with the circle around it, the year that a
work has been published and then either the name of a person or the name of a
business, and that is a copyright notice.
(17:18):
You actually don’t even have to do
that. You can, but you don’t have to, to actually acquire copyright ownership
in a thing.
(17:27):
I used to represent a client who did
not want to put copyright notices on his work because he thought it took away
from the aesthetic beauty of the, he was a photographer and painter didn’t want
to put the C with the circle around it and all of that on his work. Someone came
to pictures of his work and started selling reprints online and we were able to
stop that person from doing that even though there was no copyright notice,
even though there were none of those things. Because in the US you don’t
actually have to do those things. So again, you scroll to the bottom of any
website, you’ll see those. If you want to see some examples, if you go to my
website, you’ll see where I can… I explain how to step-by-step how you can
create copyright notices though they’re really pretty simple.
(18:20):
If you choose to register though, if
you choose to register your copyrighted work, there’s some benefits you get
because thus far I haven’t said anything that indicates you would need to
register a copyright. You get it automatically. You don’t even have to have a
registered copyright to put that little C with the circle around it on your
work.
(18:39):
So why would you spend the money to
register your work? With the United States Copyright Office? There are a couple
of reasons why you could/should register your work with the Copyright Office.
And let me give you just a couple of the benefits of registering your copyright
at work. So you have a public record number one that you created something you
can prove it kind of easily, if you filed an application with the Copyright
Office and they’ve approved it, you have a public record that you created
something and own it.
(19:17):
Number two in the U S if you want to
sue somebody in federal court over their illegal copying, which we call
infringement, of your work, then you have to have it registered first. And you
can do this at any time. So if you don’t want to spend the money up front, you
want to wait and if somebody does copy your work and then you want to file a
registration application, you can do that.
(19:42):
But if you do it within the first
five years, courts will assume that your copyrighted work is valid and that you
are the owner and that can be a pretty big deal in copyright lawsuits because
if you’ve filed an application to register your copyright, then that’s your
basic level of proof and the court starts from the premise that that is true.
And the other party, the one who has allegedly copied your work wrongly has to
prove that you’re not the owner or that your work does not meet the
requirements.
(20:16):
So it takes a lot more work on their
part than it does on your part. If you go ahead and register your copyrighted
work.
(20:24):
And if you register it early enough,
you can get better money damages if you end up in court. So these are something
called statutory damages. You can get more money and it’s a set amount. Well, I
won’t say more, but you can get a set amount of statutory damages for this
illegal copying, this infringement of your work. And statutory damages range
from $750 to $30,000 going up to $150,000 if the infringement is purposeful or
willful.
(20:58):
That’s kind of the legal term you’ll
see, “willful.”
(21:01):
Also if you register your work, if
you end up in court, you can get attorney’s fees and that’s important because
copyright infringement is really, really expensive. Just to send somebody a
letter. If a lawyer is going to do it, it’s going to cost you a few thousand
dollars and the average cost of being in court and litigating, having a whole
lawsuit about copyright infringement is just shy of $300,000 (on average!), So
if you want to sue somebody in court and you have a copyright registration, you
can ask a court to give you your attorney’s fees back.
(21:35):
And another thing that’s getting more
and more important for entrepreneurs is we have a more global world and society
is if you have a registration, you can record that registration with customs
and border control and that will protect you against illegal copies of your
work coming into the country coming into the United States.
(21:57):
So those are some of the reasons why
you might think about registering your work. Either way, once you have a
copyrighted work, something that is protected, whether you register it or not,
if you meet those requirements, you have a copyright that lasts for a pretty
long time.
(22:19):
If you’re an individual and the
copyright is owned by an individual creator, then the copyright duration is the
life of the author– of the creator– of the author plus 70 years. So you have
a copyright for a long time for your entire life plus 70 years.
(22:39):
Or if there’s corporate authorship,
the duration is a little bit more complicated. It’s 120 years from the date of
creation, or it’s 95 years from the date of publication, whichever date is
earlier.
(22:56):
So I’ll say that again, but basically
copyright duration last one of two time periods. If there is just a creator, an
individual who’s created the work, the duration is the life of the author plus
70 years. If there’s corporate authorship, it’s 120 years from creation or 95
years from publication, whichever date is earlier.
(23:20):
And publication means you’ve put that
work out there for the world to see either by selling it, distributing it,
disseminating it in some kind of way.
(23:30):
The last thing I want to mention
about copyrights and this part is actually pretty, this is something that I
think enough people don’t appreciate when they go out and either register
copyrights or claim copyright ownership in a thing.
(23:45):
Once you receive a copyright, whether
you register it or not, what you get is exclusive rights in that thing. You get
a right to keep others from doing certain things with your copyrighted work.
Now the thing that is not appreciated in my opinion is the fact that you actually
have to go out and police your work.
(24:08):
You have to monitor uses. You have to
affirmatively reach out to somebody and say, Hey, that is my copyrighted work
and you cannot copy it, you cannot use it in some way, so just you having a
copyright doesn’t stop me from copying your work. What it does is give you the
right to say to me, “Hey, you can’t do that.” So you actually, once
you get any kind of intellectual property, it is now on you to monitor and
police uses of your work online or wherever.
(24:42):
So what do you get? You get this
exclusive right to do certain things and there’s six things in the law and I’ll
talk about them not using legalese. I’ll just kind of explain what they are.
(24:54):
So the first thing you get under these
exclusive rights is the right to reproduce the copyrighted work. So that means
like I’m creating this podcast right now. I’m the only one who at least as of
right now, who can reproduce this work in some way. I’m the only one who can–
whether I want to sell it or do whatever it is with it, unless I give that
right to somebody else.
(25:19):
I’m the only one who can prepare
derivative works based on a copyrighed.. My copyrighted work. So like
derivative work examples would be like turning a book into a movie, or creating
a remix of a song or uthat kind of thing.
(25:38):
Number three, selling or distributing
copies of the work. So you have the exclusive right to sell or distribute
copyrighted work unless you give that right to other people. The right to
perform the work publicly, the right to display the right publicly. And when
you have a sound recording, you have the right to perform using digital audio
transmissions and that’s what copyright law gives you an exclusive right to do
those things and the exclusive right to police your, your work in that way.
(26:12):
So all of this is just the tip of the
iceberg. This is just kind of like the fundamental basics. It is really,
really, really complicated stuff and really, really complicated to understand
how this works out in the real world, especially like on YouTube and on other
social media platforms.
(26:31):
You can hire lawyers, yes. To do all
of this and manage all of this for you.
(26:36):
My thought though is that if there’s
something that’s really important to your business, you should at least
understand the basics of it, which is why I wanted to do a podcast episode
specifically about this.
(26:46):
So you understand at least
fundamentally what you have. Even if you have a whole team of lawyers, I know
this is a lot, I know this isn’t the most sexy topic necessarily, but as a
business owner, you really have to understand this stuff and know like
fundamentally what’s going on with your content, with the things that you’re
creating.
(27:05):
Do you have other questions about
copyright? Are there things in particular that you’re dealing with that
intersect with this in some way? Did you know you already may have a whole
portfolio of copyrighted work? If you’re out creating things, blog posts,
social media posts, pictures. If you have comments or questions, please head
over to shontavia.com leave a comment about this episode.
(27:29):
Ask me questions. If you have
questions, you can read more on my website about this and all kinds of topics
related to entrepreneurship and you can find other resources there. Thank you.
(27:40):
Thank you so much for listening to
this episode of The Shontavia Show. If you enjoyed this episode, please be sure
to like, subscribe and leave a comment wherever you’re listening. You can find
me on social media everywhere, Facebook, Instagram, Twitter, LinkedIn, and
wherever else @ShontaviaJEsq. You can also visit me at shontavia.com to find a
transcript of this episode along with other show notes. While you’re there,
please be sure to subscribe to my email newsletter. The information shared in
this podcast and through my other platforms is designed to educate you about
business and entrepreneurship and I love to do this work. While I am a lawyer,
though, the information I provide is not legal advice and does not create or
constitute an attorney client relationship. The Shontavia Show is a LVRG
Incorporated original. The show is recorded on site in South Carolina and
produced at Sit N Spin Studio in Greenville, South Carolina. Original music and
sound design is by Matt Morgan and Daniel Gregory. Mixing and mastering is by
Daniel Gregory and the video is by GVL Media.
What’s up, y’all. Welcome to The
Shontavia Show, where my goal is to help you start a business based on your
life’s vision. This ain’t gonna be your daddy’s business advice. I’m laser
focused on entrepreneurship in the 21st century, vision and breaking the
traditional mold. If you can get with that, you can get with me, be sure to
visit shontavia.com for more episodes, blog posts, and other content. Thank you
for listening. The show starts now.
Hey y’all. Welcome to The Shontavia
Show. This is Shontavia, and I’m here to help you create a business that
supports the life and vision that you want for yourself. So today’s episode is
about one of my favorite topics and it’s gonna sound like such a nerd thing,
but one of my favorite topics on the planet is trademarks, and the reason I
love trademarks is because what they do is communicate to the rest of us to, to
all of the people who come into contact with products or services, why we
should use them, why they are valuable, how they will change or improve our lives,
why we should, you know, drink Dasani water versus Aquafina.
If I put three glass cups with
different types or brands of water, how will we know which one we like other
than tasting all of them. And we know because of the trademark, because of the
branding, because of the reputation, the trust, the relationship that
companies, brands and entrepreneurs are creating for their products. And that’s
cool to me because I care a lot about relationships and the relationship
between an entrepreneur and a business owner and their clients and customers
should be one of trust and trademarks are the way to do that. And I for years
taught trademark law. I’ve been a trademark lawyer for 15 years now almost. And
so this is a topic that is near and dear to my heart for many, many reasons.
It’s one of those components of intellectual property and intellectual property
is a term that lawyers sometimes use to refer to patents, trademarks,
copyrights and trade secrets sometimes.
Trademarks is one of those that
doesn’t get as much love as patents in the entrepreneurship and the startup
ecosystem, but something that is still critically important and why it’s
important for you as you start your business is that this is what’s going to
help you stand out in the marketplace. If you’re a new entrepreneur or a new
startup founder, a person out here trying to build a reputation and a brand,
your trademark is going to be the thing that does that. And there’s so many
common misconceptions about trademarks. So I’d like to do in this episode is
give you an overview about just what trademarks are. And in future episodes,
what I’d like to do is show you how you can start to protect your trademarks in
a number of different ways, some even costing you, hopefully no money. So why
don’t we talk a little bit in this episode about what trademarks are.
I’ll give you some high level stuff
about what you can start doing to identify your own trademarks. And if future
episodes, we’ll walk through the different ways you can protect trademarks,
because really there, I can think of four ways off the top of my head to
protect trademarks.
So let’s start by defining, and a
trademark is just about anything, a word, a set of words, a catch phrase it’s
not just names and logos, it can be music, it can be holograms, it can be
vertical motion. One of my favorite registered trademarks is goats on the roof
of a restaurant for this restaurant out in the Midwest and the vertical opening
of Lamborghini doors, that’s also a registered trademark. So trademarks can be
just about anything. Anything that separates you and your business and your
products from everybody else in the marketplace of whatever you’re selling.
There’s also another really good
trademark out there. I’m a little salty. I’m a member of Delta Sigma Theta Sorority
Incorporated. There’s registered trademark is for Alpha Kappa Alpha Sorority
Incorporated. They make a specific sound when they greet each other. I’m not
going to even try to do it. Y’all Google it is terrible, but it’s a great
trademark.
So when I say trademarks can be
anything I really mean just about anything. Now, how do you get there? How do
you go from a sound or a color or a set of words or whatever and get to a
registered or protected trademark? Even though the definition is broad, there are
three specific requirements for determining whether or not you can actually own
something as a trademark. Number one, you have to be the first to use the
trademark in commerce. Number two, the trademark cannot be functional. And
number three, the trademark has to be distinctive.
So let’s walk through all those
things and unpack them a little bit.
Number one, you have to be the first
to use the trademark in commerce. Notice that phrase in commerce. That’s the
part that is commonly misunderstood and that can trip people up. So it doesn’t
just mean you have to be the first to use the word Apple, but you have to be
the first to use the word Apple to sell laptops and phones and that kind of
thing. So even though you know, we use the word Apple every day to describe a
piece of fruit the company Apple Inc owns the word Apple as it relates to
selling products and services like telephones, laptops, and other mobile
devices. So it’s not just that you have to be the first, but the first to use a
trademark in commerce. So what’s that mean in commerce?
It means that you’re selling or
offering something for sale out in the marketplace. And this is something that
is a little unique in the United States. So for those of you who are listening
from other countries, the US is a little bit different because we actually
require a trademark to be attached to a product or service. And other countries
don’t require that. So that’s the first thing.
The second thing is that a trademark
cannot be functional. If the thing does something useful, like if it makes a
product or service work better function better, make it more aesthetically
pleasing. You can’t protect that by trademark law. So like one of the best and
most recent examples that I can think of is, I think it was Miller light that
had a vortex bottle where the neck of the of the glass bottle was kind of
grooved. It looked kinda like waves around the neck of the bottle and they
said, Hey, the design of this neck of the bottle makes the beer easier to pour
or whatever because it had that function of making the beer easier to pour and
maybe had less bubbles.
I don’t know that function
disqualified the design, which otherwise might be trademarkable from being a
trademark cause it had that function. So again, trademarks can be just about
anything including designs, but it can’t be functional. And that’s where you
get into, you know, some of the more gray areas with trademarks when you have
things that might also be considered design elements with functional elements,
because if they’re functional, you can’t have a trademark for it.
Third, and this is where most
trademark lawyers spend a lot of their time, a trademark must be distinctive
and there are four relatively blurry at the edges categories of what it means
for your trademark to be considered distinctive. Those four categories are
arbitrary and fanciful trademarks, suggestive trademarks, descriptive
trademarks. And then there’s a generic category. And if something is generic,
it is not protectable as a trademark. So the worst kind of name you can adopt
for your product or service is something that is generic.
So like using the word Apple to sell
apples. So if you are founding an Apple company and you want to call it the
Apple company, that would be considered generic and not protectable as a matter
of law. So that first category, generic is what you don’t want. Now you will
probably get into some tension if you have a marketing person or a person who’s
going to help you with your branding. Because that is oftentimes what marketing
and advertising folks like to see because you’re communicating what your thing
is so the public doesn’t have to guess and figure it out. So there’s a lot of
stuff to balance because on the one hand, particularly if you’re new and
unknown, you want to communicate what you’re doing so that people know what
you’re doing, what you’re selling, and they can make quick decisions about
whether they need it.
If you make up a word, you know it’s
way harder to build that consumer relationship, that customer, client relationship
and reputation. But generic stuff you don’t want to choose. Descriptive
designations can be considered trademarks if they have something that lawyers
call secondary meaning. And that’s just basically like a fancy way of saying
you have a reputation with that word for selling whatever it is you’re going to
sell. So descriptive trademarks, identify characteristics or qualities of a
product or service. So some examples might be like QUICK PRINT. It says it’s a
printing service. It describes it as being quick. These are also the types of
words that marketing folks like you to use because you’re describing what your
stuff can do. But the descriptive trademarks are a little bit more difficult in
terms of getting trademark protection because you can only protect it if it’s
acquired that secondary meaning.
So you already have to have built a
reputation and to identify something as a protectable trademark that means you
actually, if it’s a descriptive mark, you actually have to have been out there
building a reputation for yourself with that name. And if you’re a new
entrepreneur, if you’re a new startup, if nobody knows you, you don’t have that
reputation. So it’s harder to say you have built secondary meaning in something
when you haven’t, you know, been out selling it very long or much at all. So
descriptive trademarks are great marketing tools, but again, it can only be a
protectable trademark, something you can own, if it’s acquired that secondary
meaning, if you have that reputation, then a third category, the third category
is suggestive trademarks. And so I feel like I’m going into law professor mode
a little bit, but some of this stuff you just have to know.
So suggestive trademarks suggest
characteristics or qualities of a product. And with suggestive trademarks you
don’t have to prove secondary meaning at all. So if you file a federal
trademark application for a suggestive trademark, the United States Patent and
Trademark office isn’t going to make you prove secondary. Meaning if you file a
trademark application with the United States patent and trademark office for
descriptive trademark, then you do have to prove secondary meaning. So
suggestive trademarks are better for you as an entrepreneur, business, startup
company because you have a lower barrier for getting that mark.
And then the final category is
something called arbitrary and fanciful trademarks. And these are the strongest
trademarks from a legal standpoint. So I used Apple as an example. Earlier, an
arbitrary trademark would be taking a word that already exists and using it in
an arbitrary way. So like using the word Apple, which is a word that’s been
around since the beginning of time and applying it to laptops, using the word
Apple is an existing word, using it to laptops.
There’s no connection between apples
and laptops. Then with the fanciful category of trademarks, the fanciful kind
of designation is where you’ve made up a word. So words like Xerox. So the
Xerox Company made up the word Xerox, Kodak made up the word Kodak. And so
doing that is also a way to get a really strong trademark out the gate because
you’ve made up a word. But the challenge there is you made up a word and nobody
knows what it is. So you’ll have to do a lot of work on the backend, marketing
and explaining to your clients and customers, this is who I am, this is what
I’m doing and this is what this word actually means. So those are all the
requirements for trademarks. You have to be the first to use it in commerce.
The trademark can not be functional and it has to be something called
distinctive.
And distinctive has those four
categories that I just mentioned. Generic words and phrases, never
trademarkable descriptive designations, words, phrases, logos symbols, whatever
songs, whatever, have to have secondary meaning, suggestive trademarks,
arbitrary and fanciful trademarks don’t need secondary meaning. They’re pretty
strong trademarks right out of the gate. But you will have to balance some of
that marketing stuff with how you’re going to communicate with consumers and
educate consumers about your products and services. So at a very high level,
that is fundamentally what you need to know.
But then the next question is the
question everybody always has, which is how do I go about protecting this
stuff? And bigger picture question, how much does it cost? So the how much does
it cost question is so deep, it requires probably its own episode. Attorney’s
fees in general probably require their own episode. But let me just tell you a
couple of things about trademarks really quickly.
So first common law, trademark
protection, second state trademark protection, third, federal trademark
protection. And then fourth, there’s some international options too. Those are
the ways in which you can start to establish and lay claim of ownership in your
trademarks and that word phrase, symbol, color, song, vertical motion,
whatever…that you’re using to identify yourself in the marketplace. And I’ll
do future episodes that fully run through all these things, but one of the
things people don’t know is that with common law trademarks, that starts
automatically. You don’t have to pay a lawyer, you don’t have to register
anything, you don’t have to file any paperwork anywhere. Common law, trademark
protection happens immediately. Once you meet all those three requirements I
just ran through. If you put a “TM” superscript or subscript on your
logo or your name or whatever, that’s good enough. In fact, you don’t even have
to use the “TM” superscript, but people do so that they can start to
communicate that they believe they have a trademark in this thing, in this
designation.
So at minimum you can start claiming
common law trademark protection for whatever the thing is that you’re using to
identify and distinguish yourself in the marketplace. State trademarks and
federal trademarks are a little bit more complicated because they do require
you filling out an application of some sort and filing it with somebody. So
with the state trademark in particular, every state is a little bit different.
If you go to my website at shontavia.com I’ve actually written about where you
can find the secretary of state and your specific office and what types of
things they do. So most secretary of state’s offices have like a one or two
page form you fill out. It might be $10 it might be a hundred or $200 probably
more like $10 or $50 for most States. File an application with the state and
you have trademark protection in that state. Federal trademark protection is a
little more expensive, a little more detailed because you get protection in all
of the United States states and territories.
They are a little bit more
complicated. Most times when you’re going to a lawyer and saying, Hey, I want
to trademark something. I want to get a trademark for something and they charge
you, you know, probably a few hundred to a few thousand dollars. This is what
they are getting for you, a federal trademark. You can find that application at
uspto.gov but at any rate doing that gives you protection across all 50 States
and US territories and it is pretty complicated. We’ll talk about that a lot
more in future episodes, but do you realize that you know there are multiple
ways to protect the trademarks that you want to use in your business.
Thank you so much for listening to
this episode of The Shontavia Show. If you enjoyed this episode, please be sure
to like, subscribe and leave a comment wherever you’re listening. You can find
me on social media everywhere, Facebook, Instagram, Twitter, LinkedIn, and
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The information shared in this
podcast and through my other platforms is designed to educate you about
business and entrepreneurship and I love to do this work. While I am a lawyer,
though, the information I provide is not legal advice and does not create or
constitute an attorney client relationship.
The Shontavia Show is a LVRG
Incorporated original. The show is recorded on site in South Carolina and
produced at Sit N Spin Studio in Greenville, South Carolina. Original music and
sound design is by Matt Morgan and Daniel Gregory. Mixing and mastering is by
Daniel Gregory and the video is by GVL Media.
