Knucklehead Podcast Ep 133: Translating Legalese For Your Business With IP Attorney Andy Nelson.

Knucklehead Podcast Ep 133: Translating Legalese For Your Business With IP Attorney Andy Nelson.

Andy Nelson (00:01): There's all sorts of armies to be amazing. And your copyright, I'm not infringing your trademark, Mr. [inaudible], you may be right at the end, but guess what to get to the end, the result you want, and you just spent a whole lot of cash to get there and you don't even know if you're gonna do right.

Intro (00:14): Choose not to live in a world of filters, realize your mistakes, set the foundation for your success. Get some wins, knucklehead podcast.

Stephen Colon (00:28): Welcome to another edition of Knucklehead Podcast. You've got with you today. The Knucklehead Steven, and I'm excited to have Andy Nelson, Fortis law, all the way out in the great country of California, all the way out there on the left coast, all the way out there on the coastal side of the United States, I'm calling you from Texas. So those of you who are listening, Andy is a actually we've, we've gone back and forth for the better part of a year. We've actually been connected in some social media for some time. Yeah. I was going to say connected for much longer than that, but so this would be who are listening, who are unfamiliar with his expertise, something that you do every single day draws me something that your business does, honestly, that a business that you buy from his, his company and what he does, his expertise in affects that it's like one of those things I've heard people talk about the difference between don't take this the wrong way.

Stephen Colon (01:20): Like what's the difference between a parasite and a lawyer. Honestly, that joke couldn't be further from the truth. It's just because they operate, they being what lawyers, they operate in so many gray areas, but they do it so succinct so well that quite frankly, you don't, you just don't have enough context as a business owner to dive into that area, unless it absolutely affects you. So that's why they are completely necessary. One of my favorite conversations I've ever had with an entrepreneur is actually one of my mentors. He said, there's three things that you need as a business owner. You need an insurance agent, a banker, and an attorney. And it's amazing how quickly we can overlook the importance of an attorney. So, Andy, I appreciate you taking some time to chat with, you know, in the context of what you can screw up along the way, which is what knucklehead podcast is.

Stephen Colon (02:05): Appreciate you taking some time, man. How the hell are you doing great. I appreciate you having me on Steven. This is a longer conversation with you, so I really, really appreciate the opportunity. Absolutely. Absolutely. All right. So for those of you who are listening live, ever have a conversation with an attorney, let's paint this picture here for a second. So if you're talking to an attorney, odds are either you're trying to collect some information for a friend, right? Like really it's it's for a friend I'm just asking for a friend, Hey, what happens if this person has gotten in trouble? So the conversation is you really don't want to reveal too much because you're not quite sure exactly what you're, you know, if there's, you're not in a court of law, so you're not, you're not talking to that attorney for the first time and divulging a whole bunch of information, but at the same time, and he lets let's just be real for a second. There's a lot of resistance that people have in terms of talking to an attorney, because I don't want to get an inference for the, for the expertise. And then on top of that, they just don't, they don't want to reveal a need and, and look ignorant. Do you think that that's true or am I mischaracterizing the conversation?

Andy Nelson (03:08): Yeah, I think there's a lot of things that go into it. Of course there's the never ending, you know, stereotypes, plural, you know, that are largely, I think, generated by one TV shows. Uh, and then two, of course, the sensational things that, you know, make the news that make you go, Oh my God, how does somebody even come up with something so ridiculous how to be an attorney, blah, blah, blah. So all those things, you know, kind of create this era of separation. I think sometimes people think, okay, so his attorney says hello on the phone bills and that sort of thing. That's true with a lot of people, I guess the, the ticket to actually getting a phone, that's got to be paying something. Um, but that one business lawyers, you know, they're, they're going to build relationships that look and do that. And plenty of lawyers out there who will be happy to talk for 10, 15, 20 minutes and they can learn a lot about someone's problem in that short period of time.

Andy Nelson (04:04): But sure. I mean, we're all seeking, I guess, recognize a need for it. Often reactionary, it's a reaction to something. Some other force that's happened often, something bad. Um, so of course that can make anybody really kind of resistant to open up. I think a lot of us are resistant. They're resistant to opening up anything that's private or damaging or personal, or what have you, um, in a meeting somebody for the first time, you don't know cool. You may have an image of as being stuffy, stilted, aloof, whatever, and talking to that person about it. It doesn't, it's not too appealing. So

Stephen Colon (04:43): Not at all. Well, I mean, do you find that true? You deal with clients not necessarily just in a stay in California, right? Or is that, is that primarily and solely where you practice your, your, your law?

Andy Nelson (04:54): Well, I'm licensed in California, um, which means I can practice throughout the state that largely focuses on, uh, where I can care. So what I do here, a court that is in California courts, rarely do I go out of the state, sometimes get special permission to appear in other States, but other things I do clients all over the place, intellectual property counseling, I do, that's not limited to people in California, as a matter of fact, some people are not even in this country, so they can be in other places there's times where it wouldn't be appropriate to me to help somebody in another state with some local issue that involves, you know, a city ordinance that just makes no, it doesn't make any practical sense. Doesn't make economic sense, but you know, so it's kind of a mixed bag in that regard.

Stephen Colon (05:37): Yeah. I think that you, you touched on two things that really, I think is there's the essence of why it makes sense to have an attorney come on to knucklehead podcast specifically as it relates to IP intellectual property, just trademarks, copyrights, all those terms. That means something somewhere that we recognize in practice, but don't necessarily know how it applies to our business all the time. For instance, I work for a construction company back in the day. Like I couldn't believe that this, this guy, he had insurance on everything. And, uh, and you know, we were pouring concrete back in high school. And, um, we had some guys that worked with us that, you know, were they just make, came from a different, you know, the different upbringing. So long story short is they made decisions, not the same way that we an after work one day, uh, one of these guys actually broke into the, uh, to the shop and he took it like a bench and broke into the shop and stole a lot of the equipment.

Stephen Colon (06:33): Actually, he was intoxicated. He, he wrecked the work truck. And the thing is, is the guy who owned the company, thought he was, he thought he was clear. Like he, he had everything insured or at least so he thought, and what's crazy is you have these qualifying events. I think you would, you had talked about it a little bit earlier about how, you know, the need for an attorney it's largely reactionary, right? So if, if these qualifying events triggered this, this need to audit what you actually have and what you're paying for. I mean, he would have looked a little bit closer because there was special language in his insurance policy that didn't cover certain things. And it turns out he was out. I mean, obviously you're going to be out some money in that, in that instance, but he was out of boatload of cash.

Stephen Colon (07:12): And not only that, but a boatload of the tools that made his service actually work. So we had to go behind it. It was just, it's a crazy situation. And I can think as an attorney, you probably run into that quite a bit with people that think that they're covered, because they're putting a little TMS next to their quirky phases, or, you know, they put a C when they actually don't have any of those things applied. Is that accurate? Is, I mean, do you find that to be true quite a bit as a, as a small business owner, sometimes people think they're protected when they're not.

Andy Nelson (07:41): Yeah. Or, or a lot of it was just ignore it. Don't give it much, much thought, but yeah, I run this every single day. You know, people often don't come at me with questions, come at me with statements. Like, I've got this, I've got this, I'm totally protected here. I'm this and that. And I'm going to hold on, slow down. Not even close, not even close. So I get it. I mean, it's, I mean, there's, I mean, we're flooded with info all the time. There's only so much weekend. Me too. I mean, like there's a lot of things outside of what I do that I probably would like to think I'm hip to, or have working knowledge of. But every once in a while I go in thinking that the whole time, okay, let me just slide over another right place here. And hopefully nobody's gonna call me out what I was thinking before.

Andy Nelson (08:27): You know, if it's like a subject of marketing and stuff like that. I mean, it's was just outside my camp. I looked down at people to help me out with that sort of thing. But yeah, I run into every single day, you know, one of the worst ones, if you want to call it, that is, you know, people constantly mixed up copyright trademark be in here and it's going to always, they're always doing the next step. Um, but there's a lot. So I'll say I have this, I have it. And you think they're floating along safe and they're not, we a conversation last week

Stephen Colon (08:56): About, you know, it's something that's going on with, uh, with knucklehead and I, as I was talking to you about it, you're in a database like you're, you're actually typing it up. We're we're most people when they're running a small business, they, there is something that's unique about this. They have a differentiating value proposition that they bring to the market, whether it's something unique about their service or unique about their product, but it's difficult to put that in the context of actually being protected. And that's where a service like yours and somebody with the level of expertise that you have is significantly valuable. So if, think about all the times that, you know, you ran into the quarterlies qualifying events or conversations where there was qualifying events and let's back up maybe a step or two. And if you're that small business owner, at what point would they recognize, Oh, geez, I actually need to reach out and be proactive and talk with somebody.

Andy Nelson (09:48): Yeah, I think, um, yeah, it's a little bit blurry, but there's certainly plenty of information out there. There's good information out there. If people have the time they can, you know, give themselves a sufficient education. So they'd have a working knowledge of what a lot of these concepts are. And, you know, there's a danger of course, to relying on things like on the internet, whether it's just an Apple from the beginning or it's outdated or what have you, but there are some places, you know, maybe, you know, forums, articles, and that's just one example. But, um, those tend to be, I mean, if you look at something that's relatively current, you can get a listicle right on things that need to be concerned with. So people can have that good working knowledge and probably put it through the top of their problem funnel, if you will.

Andy Nelson (10:29): And I want to get down to the nitty gritty. That's probably the time to maybe reach out to professionals. It doesn't take a whole lot of time. It shouldn't take a whole lot of time. Like I said, I can, I can, you know, if I'm just having just an open ended intellectual property conversation with somebody, you know, let's call it an audit or inventory or whatever. I can bang out a lot of value in 15, 20 messages, somebody, what are you doing? What do you got? What do you think you own? What, what have you ideas and what do you claim? What do you think is yours? And you can pull all that out pretty quickly. You know, that might set the table for a further discussion do sometimes it's okay. You know, your, you don't need the help of an attorney at this point, keep that down the road four months or six months or whatever, because sometimes, okay, we need to have a further discussion because you've got a couple of holes here.

Andy Nelson (11:17): Your flanks may be expensive, so it's hard. It's like, you know, it's a matter of budget for sure and priorities, but I wouldn't want everybody to think that talking to a business minded attorney, whether it's going to Washington property or an attorney that can help you choose the right entity to form a CPA for tax reasons, they don't think about the legal ramifications of what entity they want. I guess there's all these different things that you might want at least have a consultation with an attorney about. And I don't want you to think it's going to be extraordinary expense. That should not be plenty of business attorneys out there. And it should be a consultation like that that provides some real value should probably have three things. It should be three figures, maybe four figures of it's longer. But I mean, that's, you're getting a couple of hours in at that point should be less than that. And in the grand scheme of things, as to what you get out of it and the kind of shields, the preemptive shields, it puts around you, that is a good investment.

Stephen Colon (12:13): So when you talk about the ramifications, so to speak, can you think of an example of, we don't necessarily need it? You know, you need to think of a material example. That's going to create some, you know, some, some issues or friction here, but the, uh, the idea of, of running a business where somebody was protected, they marketed a product. I'll give you a specific example, Peloton Peloton. This is a specific example that you could probably speak very intelligently about the license. They didn't own the license for the music that they were using so that, you know, the instructors, they have this, you know, video streaming device where everybody's on there and they're listening to the music in the background. And that, for some reason, they didn't own the license, I guess, for the distribution of that. And they got hit with like $125 million fine. If we could take that scenario and then put it to Bob's tire, shop down the street, you know, that has like some type of social media campaign where they want to market to the local community. And they use, you know, a song in the background, or maybe there's somebody who's not skilled at editing. And there's a, you know, a song playing in the background. What type of issues are we running into? I mean, it's a crappy example, but

Andy Nelson (13:23): Yeah. Cause when I happens quite a bit and that's, you know, we don't think about this. I mean, it could be going to a retail store. You know, somebody might just, you know, bring in their own radio and start playing music in the retail store. Oddly enough, when thinking about it. But that's a violate different artists, copyrights for licensing companies that have the rights to public performance of that music. It's a copyright violation. Could it be a copyright violations? Um, so it's yeah, you just don't think if you think this is my word, when I own this, I'm going back a little bit on the CD. I can't play my own CD in my store kind of thing. You can play it for personal consumption. You might don't play it with just a few friends around, but when you play it in a commercial setting for a lot of folks, you've been, we're getting into a different type of license when you buy that CD.

Andy Nelson (14:09): It doesn't go on back a little bit. You're buying that physical object, but very within that physical object is a license on how you can actually use it. All these numbers think about that. You know, I used to buy video games back in the day with the shrink wrap on it. You know, I'm not going to be a sticker on it outside, which as soon as you take off that shrink ring to the license, that's in it. So it's just, it's something that just doesn't, you know, I didn't process myself consciously. Let me think about what's happening here, you know, but to your point, a lot of restaurants, for example, I've had this exact issue before, so restaurants will have live musicians, come in and play, play covers, okay. Those covers they can do, but to run the license. And that's kind of what we call a mechanical license, they're allowed to do it.

Andy Nelson (14:57): But the venue when they're performing, it has to have the appropriate license for all of the songs are not flying. So there are folks out there that work for these licensing agencies as can't be mic sack, it's gotta be the greatest job in the world, by the way, you just go to a restaurant and, you know, and just sit and have a meal, he'd write down all the songs that were played that night, check it against the license for that restaurant two or three aren't on it. And they don't just don't go nuclear. At that point. They just send a nice letter saying, Hey, you know, great music. Why don't you do you have a license with us, but let's go ahead and upsell you to the next level because you know, some of the songs on Friday night within the license sale and I've had that exact issue before, and that happens all the time. I want that job at some point,

Stephen Colon (15:40): For those of you who are listening, who are with those three agencies, uh, there is a willing participant out there in the great country, California known as Andy Nelson. So we'll provide his contact information afterwards. So I'm just kidding. All right. So what were those three agencies? Cause I've heard of this before, but I also, you know, you all, it's like, it's like a, the boogeyman or, you know, uh, the, the, what's his name, the Sasquatch. I've never seen him before. I've heard about him, but you know, I've never seen him before. So who are these agencies?

Andy Nelson (16:06): Okay. As cap is probably the most famous one, DMI B Amazon, Mike, and then C SAC SAC, SAC three, there might be more licensing agencies, but those are the three big ones out there. Those mostly deal with live performance and playing musical or sneakers, that sort of thing. So thinking music to say like a commercial, you want to create a, whatever. That's not going to be covered by the, they may have those rights. If you look and you'll often have to figure out who the publisher is or the rights to actually synchronize that music to some kind of visual component. So it can be a challenge to actually go through these steps, but if you can do it and sometimes it's just not for recycling. And when he was like that, the phone by George Durgan that's books, you don't see, I mean, you probably see more commercials, but it's expensive. Um, you know, and there's high demands. Um, those, those are individual negotiations. But the last thing that I do is get caught because then you're looking at a copyright lawsuit and, uh, the potential exposure there, it can be extremely high and I've been involved with any number of conduit lawsuits over the years. It's not fun. I mean, I personally have not been any people on both sides. Uh, it's just not, it's just not good practice. Sometimes people do sneak by every day. Um,

Stephen Colon (17:30): That's what I was going to ask you about. And that's, that's almost what I wanted to to wrap with is, is so alright. There's, there's something that you've told me before, and it's not just, it's not just you you've, you know, there's other, there's other folks that this has happened to you. You talk about, uh, whether or not something's in the law, right. And then the perception of the law in practice and there's there's evidence and then the law, I can't remember exactly how you said it, but the way I categorized it, I was like, okay, if the evidence points to, you know, reinforcing you in the law also reinforces whatever your position is. Those are, those are two different things that you can evaluate as a, as a business owner, whether or not whatever you're trying to put forward makes any sense whatsoever. Now that's my knuckle dragons, stupid, you know, they don't sign the head a whole bunch of times the interpretation of it. Yeah.

Andy Nelson (18:18): Those are very helpful

Stephen Colon (18:20): To categorize whether or not a case actually even makes sense to move forward on. And so what I mean by that is if you're doing something in your business that you feel like somebody else is replicating, first of all. Cool. But then second of all, think about, you know, think about it in the context of those two categories that I just, I just thought of is that stupid of me to think that way or help people understand how they would best view whether or not they're actually moving forward with a case on something.

Andy Nelson (18:46): Well, yeah, I would say if I hope I don't butcher what you're asking. Um, I think I might've mentioned to you was yeah. You know, I worked a lot of apparel companies for years who had art departments, sophisticated art departments that they use, you know, a lot of inhouse artists, there's a lot of independent contracts. They had systems for vetting, right? Because in graphic arts and that sort of thing, there is a lot of infringement going all the time because a lot of myths around that, Hey, you know, it's just changes by 10, 50% clear and this and that and people are talking to, that's not true. I mean, those aren't completeness that there's no basis whatsoever. I don't know where they come from, but they continue to persist the percentage of change changes. But all those years with these big, I'm talking big companies who have these sophisticated arguments.

Andy Nelson (19:33): I either on one, maybe two at most how many times over the years that the art department came to us in advance and said, Hey, we want to use this graphic. Do you think we're going to be in trouble? And when they did that, we knew that they knew there was a problem. Okay. Because some of the other things got through some of the things got through and so come to us and be like, okay, there's all sorts of arguments are used to be amazing. I'm not infringing your copyright. I'm not infringing your trademark because of this difference.

Andy Nelson (20:01): If you're making those arguments get probably wrapped up in some sort of dispute at that point, you really want to be, you may be right at the end, but guess what to get to the end with the result you want, you just spent a whole lot of great progress to get there and you don't even know if you're gonna do it. Right. So, so many times I said, why do you want to do that? You know, I get it. Your NGO mean, I mean, companies that are as you do that sort of thing. So you're not going to talk to me about don't try and stop him. I just tell them what the options are and what potential problems might be. And they're going to do what they're going to do. Um, but, and I'm dealing with one right now. Let's say it. I can't tell you the details, but it's, you know, there's a very popular product out there and somebody wants to be on this side just right here and illegally probably.

Andy Nelson (20:44): Okay. But guess what? This is an aggressive party. And you know, if they come after us is going to be a lot of effort to prove where quote unquote, right, whatever that needs. So, you know, my, my, my advice may very well be that depart, it's smarter to depart. You don't want it. You want to build a business. You want to generate revenue market. You don't want to run into this bulldozer. I don't think it's that important from what you're telling me. It's not that important. You can depart even further and you're gonna be successful. So why don't we just do that?

Stephen Colon (21:18): Yeah. So I liked that. I liked the, the way that you broke that down, there's chronic concrete, tangible, real world. Examples of what it is that you're, that you're discussing. And you can draw from your past experience to say, Hey, listen, unless you want to look like a knucklehead, um, just approach with caution here and there. And I liked the way that you had said by the time that those art departments come to you, there's there was already a qualifying event. The reason why they're getting in touch with you is because they know that, Hey, listen, we got our hand caught in the cookie jar over here. So that at least their processing system revealed that to you, which is, which is fantastic.

Andy Nelson (21:53): So you got to the second major company, big surf sort of repair. They sold a bikini, okay. On the image, on the bottom, on the back, what it was a, it was kind of abstract art, but it was an image. And it was an image of the guy with this curly free flowing hair and the above of this. I mean, I posted some more people saying it. I says, baby, I love your waves. The image was Peter Frampton. And the model of the swimsuit, you know, the product model was called the frantic that made it through the art department. And so there was no clearance whatsoever. So there were about four or five intellectual property violations on that one thing that are trademark violations, copyright violations, publicity violation. I mean, it was, it was about that bad all the way around that never got through us. First, he went right out the door and we would have, you know, well, again, we wouldn't tell him what to do. We just said, this has gotta be bad. If you get caught, you know, just telling me. And it combines, that kind of thing happens every day with a big business and sophisticated as it is. So you can imagine what happens when smaller business don't have those other resources

Stephen Colon (23:14): Step on it from time to time. I'll just put it that way. So anything else that you want to leave these folks with? I love that, that last story, what's the best way for people to get in touch with you. And in what context do they need to reach out to your law firm? Do they email, do they connect with you on social and tell people, tell these people how to get in touch with you? Andy

Andy Nelson (23:31): Social is good for me. I mean, a lot of people, I get contact to all different ways and I see them all. Um, but, uh, but I do like, gosh, Facebook, Instagram is good for me. And also monitoring [inaudible] Instagram and Facebook, but Hey, my email address [inaudible] dot com for T I s.com. Fortis, is there, is there something significant there? Yeah. I mean, I can't, I didn't, I didn't coin it myself. I joined this firm a couple of years back for this is it's a Latin word was chronic couple different meanings along that waste. So then otherwise let's do like it. I like, I like it way. And I appreciate you taking some time and also just sharing some of what you say. I know that, uh, we ran into, we seen each other at a few conferences before, and I know that just walking around the conference floor, uh, there's nothing like walking over the conference floor and I can imagine just how you interpret all the violations that you're just sitting there.

Andy Nelson (24:35): And it's, it's gotta be a lot of fun knowing that there's opportunity, but also that the lens in which you look at that opportunity is it's filtered with. Yeah. I mean, context matters. Are you going to be able to, do you really want to fight that you really want to bark up that tree? I like how you viewed you dispel a lot of the myths traditionally that that maybe some of the TV shows perpetuate about attorneys. So anyway, I'll just put it to you that way. Anything else you look at? Like you got something, one thing I will say. So I remember my first year of law school and when I was in contract, I remember the professor said most things about contract law. You can answer by asking yourself what would grandma's say about this situation. I was like, that's largely true. I would expand on that and say, most things that you encounter probably can be answered by what grandma would say about the situation.

Andy Nelson (25:25): So whatever you're doing in business, you know, gosh, I'm contracting. We're not a part, you know, should I, if I didn't put this in my written contract, is it still that we agreed to this and that no man would say, why'd you put it in writing? You know, I'm getting, shouldn't it all be in writing? I mean, that's largely true. You're gonna have a written contract. It's hard to say that there are agreements outside of that. It's not impossible, but should probably be in that contract. That's my grandma would say about that too. So you can't answer, you can skip the lawyer at first and just how your grandma here on your show, or you can ask her and then if you're still not sure, maybe then go to the water at that point. I love it. I love it. So, Andy, I appreciate that.

Andy Nelson (26:07): That's very practical. What we bring, that's what we bring every single week here on knucklehead is we bring something tangible, honestly, something that somebody else has screwed up along the way. Those are lessons learned. Those are great, valuable, tangible examples that people can use moving forward. So those of you who are listening, aNelson@fortislaw.com is his email address. And he just told you how to get in touch with him. A couple of different ways over on Instagram, Facebook. And if you have any questions, obviously get in touch with us. We'll help you get in touch with them. So anyway, Andy, we appreciate you, man. There'll be a about the process for those of you who are listening to new episodes coming at you every Tuesday, Andy, appreciate your time, buddy. Have a good rest of the day. It takes time. Absolutely. Absolutely. You bet.

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Protecting your intellectual work, your artistic creation, and your organization demands great effort and legal expertise. Though these sound overwhelming, the awareness of these rights and the assistance from a legal counsel will save you from the slippery slope of complex intellectual property issues.

In today’s edition of the Knucklehead Podcast, our guest, Andy Nelson will talk about intellectual property rights, how to avoid copyright and trademark infringement, and the right time to seek professional advice.

Andy Nelson is an Intellectual Property Lawyer at Fortis LLP. He loves helping veteran-owned and military spouse-owned businesses start, grow, and succeed with the critical legal counseling they need. Andy represents clients in complex business, commercial, intellectual property matters. His practice emphasizes the development of effective strategies for trademark and copyright protection, enforcement, licensing, and dispute resolution. Areas of focus also include complex contractual and commercial matters, website protection, social media, privacy regulations, trade secrets, and disputes among co-owners of businesses.

Knucklehead Podcast is brought to you by Manscaped- Use the Promo Code: KNUCKLEHEAD  for 20% Off

Enjoy!

Favorite Quote

“There are all sorts of arguments that are used to be basic. I’m not infringing your copyright, I’m not infringing your trademark because of this difference. You may be right at the end. But guess what, to get to the end, the result that you want, you just spent a whole lot of time to get there and you don’t even know if you’re going to do it right.”

                                                                                                                -Andy Nelson

In This Episode

3:08 – The reasons why some people are resistant in talking to lawyers

9:05 – The point where small business owners need to reach out and seek advice from a legal adviser

12:13 – Instances where license and copyright are applied

15:52 – The “big three” agencies of the licensing industry

18:26 – How to spot a business that’s infringing intellectual property rights

24:56 – His message to anybody who’s contracting with another party

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