Having The Talk ….. With Your Parents

No!, not THAT talk. Oh my gosh, NO! BabyGirl is only nine-and-a-half and THAT talk is at least a few years away. (Please say yes!). I’m talking about the talk we should have with our parents (or in my case, grandmother) as they get older. The one where we talk openly about “their affairs”. No, not THOSE affairs that are daily news on TMZ. Geez! I’ll just say it ….

Talking to our parents (or possibly grandparents) about their legal, financial and medical affairs. When my mother had her stroke that led to her being in a coma for nearly two months before she died, not having an advance directive or living will wasn’t all that unusual. There was no HIPPA, so medical professionals freely spoke with friends and family about how she was doing (or, to be honest, not doing). And having a health care power of attorney wasn’t all that necessary because doctors and nurses looked to the family, in general, despite that my mother was married and my step-father should have been the decision maker.

But when you’re fine one minute and have a stroke that will ultimately render you comatose, without your written wishes it’s a free-for-all of other people deciding what’s best for you. And although my mother and I had many, many discussions about how she would want to live (or not live) my point of view was dismissed because it was not what the rest of the family wanted. I knew my mom didn’t want to be kept alive, but that didn’t mean anything.

I’m thankful that my grandfather was very detailed and wrote out very specific instructions for his medical, financial and legal affairs when he got too sick to make decisions and then when he died. It made taking care of things for my grandmother much easier. But as my friends speak of having to care for their parents (or grandparents), I hear very different stories. Stories that are heartbreaking because they have no idea about their parent’s medical, legal or financial affairs and are trying to get up to speed during a time of high stress.

I think we all know it’s important to know that our parents (or grandparents) have a will, a power of attorney and maybe even a living will. And, of course, we should have all this stuff too. But I’m finding out that many of my friends have no clue if their parents have a will or any type of legal documents to help them out “just incase”.

Having “The Talk” with our parents (or grandparents) isn’t easy. I know this first hand. We’re the kids, we’re not supposed to talk to our parents about their finances or who they want their stuff left to when the inevitable happens, or if they’ve chosen someone to be their power of attorney. Part of it that we don’t want to have the talk because we don’t want to be morbid. But it’s also that we’re taught to be respectful of their privacy.

But here’s the truth. When something happens, that’s not the time to find out your parents don’t have a Power of Attorney and there’s no one who can take care of their finances. It’s not the time when your mom or dad is on life support to realize you have no clue if they want to have all medical heroics or if they’d rather just be allowed to go or that a sibling who can’t be there is the designated decision-maker. And after a funeral is not the time to find out the last will done was in 1974 and there have been divorces/kids/deaths/births/etc.

Many people are hesitant to fill out all these “legal forms” because they’re told it’s an expensive proposition. However, I’m here to tell you that it doesn’t have to be. When it comes to health care directives, many hospitals and senior advocacy groups offer forms for free. Often the biggest challenge is finding a notary and, if required by your state, the witnesses.

What should you talk about when you have The Talk with your parents?

1. Do they have a will (Last Will and Testament)? When was it last updated?

2. Do they have a Durable General Power of Attorney? This is the document that will give someone the ability to handle their financial affairs should it be necessary. There are a number of options for this so you may need to talk with a legal professional. For example, a power of attorney can be affected by a person’s incapacity so you’ll want to know about this.

3. Do they have an Advance Directive for Health Care (often called a Living Will) that sets out their wishes for medical care?

4. Do they have a Health Care Power of Attorney? And does it include a HIPPA release? This document is NOT the same as a Durable General Power of Attorney. The Health Care Power of Attorney is ONLY for health care matters when the maker is unable to make those decisions.

Years ago it was easy to get health care information and take care of our elderly family members in times of crisis. Now though, with strict privacy laws in both health care and financial matters these documents are necessary. And while not having a will isn’t the end of the earth if there is a surviving spouse, it sure makes matters so much easier.

Many people think it’s morbid, but it’s actually a very responsible conversation. As I tell my clients, these documents ensure that YOUR wishes are carried out and your family isn’t left trying to figure out what you wanted. Sure, there may be hurt feelings or fighting among siblings but the ultimate purpose is to make sure that those who have to act on your behalf can do so with some knowledge. And unless there is a sizable estate, there is affordable legal help to create a basic will.

Have you had the talk? How do you think your parents (or grandparents) would react if you broached this subject with them?

photo credit

Sara

BlissDom At Home: Legal Confidence Session

BlissDom At Home

 

Nothing like a recording of your speaking session to make you feel like a rock star! As many of you know, I was a speaker at the BlissDom Conference in February 2012. This year my session was recorded and is now available as part of the BlissDom At Home program. This is a great opportunity to get access to all the sessions. If you couldn’t make my session, or you weren’t able to attend the conference live, you can get it all online!

For $99 you get unlimited access to all the sessions posted, as well as any mastermind worksheets that were made available in the sessions. There were fabulous speakers, all sharing their expertise to help you take it to the next level. And this isn’t just for bloggers. These sessions are excellent for work at home professionals, writers, and photographers of all levels.

“BlissDom At Home is your ideal conference…  To Go! Imagine the concentrated intellectual and creative power of 30 experts, in one space, absorbed at your own pace. You are one click away from grabbing the reins of limitless potential!”
                                                                                                                                                                                        ~ BlissDom At Home website

If you missed BlissDom 2012 or just my session, listen to my session on BlissDom At Home. Due to some technical difficulties in the recording, my session will also have an accompanying transcript to help ensure you are able to get all the information presented.

If after listening to my session you have questions, please feel free to leave a comment or contact me and I will do my best to clarify the information.

Disclosure: As a BlissDom speaker I have been provided complimentary access to BlissDom at Home. In addition, I am an affiliate and may be paid a small commission for your support and purchase of access to my session.

Sara

Avoiding Copyright Pitfalls on Pinterest

 

Copyright Issues with Pinterest

You either know what Pinterest is or you don’t. For those who do, just skip this next section. For the uninitiated, let’s bring you up to speed.

Pinterest in the online equivalent of all those torn out magazine photos, articles and recipes you’ve got taped on your wall, stuffed in a drawer, bookmarked in your browser even though you have no idea how to find them ever again, or piled high in a ‘to be filed’ which used to teeter on your desk until it fell over so now it’s on the floor. For those of you who are ‘my age’, it’s an online cork board. For the younger crowd, it’s similar to a vision board only you can have many vision boards without having to put together any more furniture from IKEA.

In a single word, it’s genius! Pinterest is a hybrid of Etsy, Facebook, Twitter, Tumblr, Posterous and a Blog. As of the writing of this post, Pinterest is an ‘invite only’ community. It’s not some secret handshake kinda place, I think it was done that way to manage initial traffic. If you’re not on Pinterest but want to be, just email me and I’ll send you an invite. (As of August 2012, Pinterest is open to anyone without an invitation) So, now that you have an idea of what Pinterest is why the talk about copyright?

I signed up for Pinterest shortly after it went live. I used a stealth email so I can lurk and see how this thing worked. Sure, with about an hour worth of work you could probably connect me to my James Bond-ish Pinterest but I signed up for a very different reason. Anytime there’s photo and content sharing there are potential copyright issues. And I wanted to check it all out and see how it would unfold.

First, let me say that the Pinterest Terms and Conditions are pretty straight forward. While I’d guess about 90% of the Pinterest population just clicked the ‘agree’ box, I, in fact, have read the T&C. Several times. There are places where they are convoluted and exceedingly verbose. And, in many instances they’re quite a bit more ‘techy’ than they really should be. But, being a lawyer who works with online content creation, protection and sharing I’m probably a bit deeper into the reality of how a site like Pinterest is used than the average corporate or tech attorney. That being said, I didn’t see anything in Terms and Conditions or Copyright notice that would raise any red flags related to privacy or copyright protections.

I do have serious concerns about Pinterest hosting full-size images on their server, often without knowledge or permission from the original copyright holder. In doing this, Pinterest removes all references to the the original source. That creates significant issues with copyright (as well as other issues), especially when the copyright holder may not have provided authorization, tacit or otherwise, for the redistribution of the image. Now, the image can easily be redistributed without any determination of whether the image is protected by copyright. This is an issue I have with Pinterest directly, and not necessarily with Pinterest users. And, of course, Pinterest is based in the US yet it is a global board and thus there are concerns with protecting the rights of non-US citizens as well.

Now, that being said, let’s get to the reality of how Pinterest is used. The site is intended for users to ‘pin’ content to your virtual pinboard. By pinning a specific web page you can add comments, categorize that ‘pin’, and connect an image. And by doing so, potential copyright violations are apt to occur.

It’s not 100% the pin-ers fault, nor 100% Pinterest. Much of the issues related to copyright problems come about because the law is not straightforward. There is a great deal of wiggle room in copyright, which tends to fall under the category of Fair Use. And while there are licensing issues that are addressed in the Pinterest Terms and Conditions, the fact that people don’t read them combined with a lack of understanding of what Copyright Fair Use really is means that problems are bound to happen.

How can you avoid Copyright Pitfalls on Pinterest?

I’m glad you asked!

1. Avoid ALL cutting and pasting – When pinning on pinterest, the point is to add your insights, comments or thoughts NOT to cut the article and post it so you never have to reference back to the original. Since you’re linking to the original (or what is believed to be the original), in the ‘Describe your pin’ window you write something meaningful to you.

2. Pin the original source – I know that re-pinning is an acceptable practice and a time saver. However, if you’re really interested in what was pinned, take an extra minute or two and verify the source. Sadly, I’ve seen things re-pinned that don’t belong to the site mentioned.

3. Never copy an image from Pinterest to use on your blog! – Chances are whatever you’re doing will not fall under fair use, so you’ll risk the copyright holder saying you’re infringing their rights. If you really like what you see, reference back or get permission.

4. Don’t perpetuate the wrong owner – I’ve seen the same image attributed to many different blogs. This is not only frustrating for the reader but it’s downright maddening for the original owner. It takes a lot of work to get your images taken off other sites, and when you have to take extra steps to prove you’re the real owner it’s not only maddening but also very time consuming.

5. Watemark your images – I know that many photographers do not like to watermark images because it takes away from the beauty they were capturing. And for the average blogger, like myself, adding a watermark isn’t always easy (especially now that Picnik is shutting down but it’s gotten easier thanks to free sites like PicMonkey). It’s important to know that Pinterest doesn’t crop the image. That means the watermark will remain, letting people know the original source. This is not foolproof, but it’s a start.

Hope this helps with honing your Pinja skills!

UPDATE: On April 6, 2012, Pinterest updated its Terms of Service to specifically address several issues regarding what Pinterest can do with uploaded images as well a creating what they believe are simpler tools for reporting copyright violations. Overall, the general nature of Pinterest did not change. The one big change in the platform to help those whose words were lifted was to limit the comment to 500 characters.

For other articles about the legal implications of being online, check out my series on blog law and online rights.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.

Sara

Contract Law Basics Part 2

Contract Law Basics

Now that you know what the basics of Contract Law are, I’d like to move on to the main issues of contract negotiation. Most contracts, whether from the brand directly or via their PR agency, will have been crafted by a team of lawyers and heavily stacked in favor of the brand. It’s just how it works. Most lawyers aren’t in the business of making contracts fair and balanced. It’s all about protecting the client.

I take a bit of a different approach and don’t believe that contracts have to be imbalanced or onerous to one party. One-sided contracts don’t do much good because it immediately puts the other party on the defensive. However, if you know that the contract will be heavily favored toward the brand (other party) you’ll be better able to read through it without feeling taken advantage.

Contracts, or Agreements, are usually negotiated documents. There are many that are not, such as website Terms of Service, Ad Network agreements, sponsored posts via a third-party ‘mom collective’. But we’re talking about contracts with brands to engage you, the blogger, to do work for them.

If you’ve been talking with a brand or PR rep and are entering into a relationship with them, the agreement or contract you receive is something that should be read fully, understood and, if necessary, negotiated to include terms you need or want as well as spell out more clearly those terms that are ambiguous.

Some aspects of the contract will non-negotiable, but that doesn’t mean you need to forget about them. For example:

1. Jurisdiction – in the case of a dispute, this is the location the dispute will be settled. It will often be in the state of incorporation or where the corporate headquarters are located. No matter where you live, work, or are qualified as a business, very few brands or PR agencies will allow this term to be changed. It’s not in their best interest and creates logistical issues for them in case of dispute. Just be aware of this so if something does go wrong you know where you’re headed.

2. Notice – there will almost always (I say almost because sometimes are they inadvertently left out) be a Notice term. This sets out where and to whom notice is given in case of changes or disputes. The key here to to make sure your information is correct so that they can reach you at any point in time.

3. Assignment – usually a clause is included that prohibits the assignment of the agreement. Often it will say that the brand may assign it without notice or approval but that you may not assign it without their approval. This makes sense from a business perspective as the brand enters into thousands of agreements and does not want to obtain permission prior to assigning an agreement for business purposes such as merger or change of structure. However, because the brand is contracting with you or your business specifically they don’t want you changing places with someone else.

The terms and conditions you will want to focus on are those that directly impact your relationship, scope of work and compensation. These include:

1. Non Compete – If an agreement includes a non-compete provision, read it over carefully to determine (a) length of time, (b) scope as well as (c) location. A world-wide brand may want to limit your ability to work with a competitor on a global scale. Does this make sense if you’re only focused on the US? Is it appropriate to prohibit your working with a competitor for 12-months when your agreement is only for a 3-month contract?

2. Scope – Define as clearly as possible what work you are to do. Is it a set number of posts? Are there time or word-length requirements? Who provides the images? Will they pay for shipping giveaways? If you need to travel, how is that paid and what is covered? When it says ‘electronic’ does it cover all new aspects of electronic media? Or is the term vague?

3. Compensation – Most people know that the actual amount you’re being paid is negotiable. However, they often overlook the terms of payment. Some companies pay 30-60 days after receiving the invoice. Is that acceptable to you? If your compensation includes both cash and goods, be clear as to the value of those goods and how it will be reported to you for tax purposes.

4. Intellectual Property – this is a big one for bloggers. Who owns it? And what is ‘it’? Read this provision carefully as you will want to know exactly what you may be giving up. In addition, you will often be providing assurance and guarantee that you will not provide anything for which there is a potential dispute over ownership. Thus, if you use images on your posts or site that may be copyrighted for which you do not own or have a license, permission or fair use argument for then there could be a potential for breach. In addition, you will want to know what you are giving up to the brand. Will they be able to use your post on their site without linking to you or without reference to you by name or site? The other concern you should evaluate is whether this is, in fact, a Work for Hire. Work for Hire is a technical legal term related to Copyright and certain terms and conditions must be met.

5. Dispute Resolution – If there is a dispute that escalates beyond the ability to resolve through discussions, you or the brand may need to take a more formal route to resolve the problem. Many companies are now moving to Alternative Dispute Resolution (ADR) programs such as arbitration or mediation rather than using the court system. There are pros and cons to each type of resolution system. Many litigators will tell you that litigation is cheaper and more reliable than ADR. Mediators and arbitrators will say ADR is the way to go.

Some lawyers will say avoid arbitration clauses at all cost. This is fine if you never want to work with the other party again. If you don’t mind standing on scorched earth at the end and having no possible means of maintaining a relationship then litigate away. Some lawyers believe that because the more powerful party can stack the arbitration clause in their favor that there is an inherent lack of fairness or that it could be cost prohibitive to the party that can’t make any changes.

In most situations, this term will NOT be part of any negotiations. The more significant the agreement and relationship the more likely you can negotiate this term. The reason I bring it up here is that if you can negotiate it then you’re likely working with a lawyer who can advise you what is in YOUR best interest. If you are NOT able to negotiate this term, at least know what it means to you should the relationship go bad.

6. Parties – Who are the people/businesses who will be liable on this agreement? I include this although it seems like a no-brainer. If you have been working with a brand or PR agency they likely know you as a person who has a blog. They many not realize you have formed a legal business entity. When entering into an agreement, be sure that the agreement is between the other party and your business if you have one. Indicate on the agreement the name of the business, the address and the state where it was formed. Indicate the type of business as well. It may not mean much at first, but it can be used as proof to the IRS as well as in case of dispute that you are not sued personally. If they want both you personally AND the business on the agreement, understand what that means for you legally.

Conclusion

While most every term of a contract or agreement is negotiable, it’s not often realistic to negotiate with a brand on what may seem to the brand to be routine relationships. If a brand or agency wants to work with you, coming back to them with a marked up agreement that looks like you’ve had a run-in with an axe-murderer will not set the tone for a friendly relationship. Remember, they need to go back to managers, supervisors or a legal team with your changes.

From personal experience, I was more willing to make changes to an agreement when the changes were presented in a clear and concise manner. Telling me why it’s important for you to have the changes helps the other side know what your goal is. Remember, you may actually be trying to negotiate with people who know nothing about you. You need to give them a reason to make the changes. Especially when it’s a large company.

Also, rather than marking up every single term you don’t agree with consider why the term or condition is there. Keep in mind that many of these agreements were drafted months or years ago and may not be updated with references to new technology. Also, understand that they’re not trying to pull one over on you. As a large corporation they tend to focus on standardization within the legal department. They do not devote resources to review ever single agreement, often leaving it to brand personnel to finalize agreements. Their authority to modify and change agreements may be limited because they are not lawyers and they, themselves, may not fully understand the agreement either.

All that being said, when asking for changes be clear about what changes you want. Know which ones you will be ok with if they can’t change it. And if it is very important that something be changed, do not be afraid to ask for it. Often explaining why you need the change will allow them to see a different perspective.

Finally, when presenting your changes submit them all at once. Dont’ piecemeal your requests. It’s very frustrating to have to keep looking over the same agreement and you’re less likely to have success getting your terms and conditions incorporated.

Disclosure: While I am a lawyer, I am not offering legal advice. Posts on legal matters are intended to provide legal information and do not create an attorney/client relationship. This post is part of my Blog Law Series.

Sara

LAWsome Bloggers take over Nashville for Blissdom

Sara Hawkins Blissdom Speaker

Nashville may be known as Music City USA. But for a few days at the end of this month, country music will need to take a back seat to three LAWsome women heading to Blissdom. Sure, the women who put on the Blissdom Conference are pretty spectacular in their own right and I’m not here to take anything away from them.

However, a few weeks ago they notified Me, Charlene from Charlene Chronicles (who is a lawyer like me) and Sarah from In the Trenches of Mommyhood (who is a paralegal and despite what some lawyers say, we’re nothing without a good paralegal) that we were the Blissdom Legal Eagles (my phrase, not theirs) and I quick jumped onto email to them and began sharing my crazy sense of how the law should be fun and exciting and that we should be the panel that everyone wants to go to. And you know what? These two women didn’t laugh at me! As a matter of fact, they joined me in the LAWvely banter on Twitter about how LAWkey we are to be doing this and that we’re creating a LAWndry list of topics. Get it? Yes, lawyers (and paralegals) can be funny too!

I think Alli and Megan may be reconsidering asking us to speak. Nah, they know LAWsome when they see it, which is why they chose us! *waves to Alli and Megan*

Here we are, just a few weeks out from Blissdom and Charlene, Sarah and I (yes, even more to confuse you because I’m Sara and she’s Sarah and it makes me think of that SNL skit with Maya Rudolph and Fred Armisen as Nuni and Nooni) are working on what is sure to be The legal panel of the new decade, or at least of the conference. We’ve got that great video Charlene created, there will be props and possibly costumes and music! We’re in Music City, we’ve got to have music!

So watch the short LAWsome Blissdom Panel video (about 2 minutes) and get ready to get your LAW on at Blissdom.  If you’re not going to Blissdom, don’t worry because we’ll make sure you get all the info too when the conference is over! If you’re going to Blissdom, I’ll see you at 4pm on Thursday the 27th!

And whether you’re going to Blissdom or not, be sure to follow us on Twitter, as well as the #Blissdom hashtag to keep up on all the conference information.

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Sara