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Creator Generation brings you behind the scenes of the creator economy, featuring top YouTubers and experts who share the strategies, lessons, and stories behind building successful channels, growing incredible businesses, and driving the world’s biggest online video successes.
Hey. I'm Fred.
Ant:And I'm Ant.
Fred:And this is Creator Generation. Creator Generation of hype. If you're a creator, you're running an IP company whether you realize it or not. And our next guest knows this better than anyone.
Ant:Rebecca Orecsaid is a Harvard Law grad. She was the lead counsel for partnerships at Neta and now represents creators directly through her own firm. She's joining us to tell you where creator contracts go wrong and how to protect your creator business.
Fred:Pre created generation are high.
Ant:How the hell did you end up being a lawyer for creators?
Rebecca:So it I'll take it all the way back to when I was growing up. I love music. I am obsessed with Freddie Mercury and the band Queen. And I was in garage bands. I was lead singer.
Rebecca:And at the time, was like, I'm gonna be a rock star. And my parents, being immigrants, were like, no. There's no way. Go get a real job. Go get a real degree.
Rebecca:And later, if you're in your early twenties and you're sure you wanna do this, then fine. So I got a degree in economics, and then I got a job in finance. And at the time, I was like, maybe maybe I'll go to, like, a conservatory or I'll go do something after I get my degree. And my sister started putting out content and putting out music and she was, one of the early, like, musically verified creators, and she was also streaming on something called You Now at the time. And she was one of their, like, first partnered creators.
Rebecca:She was 15 or 16 and I was her manager. So I would negotiate all of her deals for her. She got, it's like a joke amongst ourselves and amongst the people who know us. She got asked to do the red carpet at the American Music Awards. And she was there with Coca Cola just kind of like, you know, walking up to people and live streaming.
Rebecca:And I negotiated that deal for her before. I think I might have been a first year in law school or maybe it was right before I went to law school. I can't remember which one. And I was like, I really like this. I really like doing this.
Rebecca:And I like being the big sister in, like, this different way. And so I started really going at it with law school about wanting to work in the entertainment space because that's what I knew. It's what I cared about. It's what everyone I cared about was doing. And it was a way being a lawyer in this space is my way of taking that big sister kinda, like, role and applying it to a bunch of people who really do need it and can benefit from somebody who's gonna go through and read with the kind of care that I do and make sure that you're not getting taken advantage of.
Rebecca:And so I went to Harvard Law School. I worked really, really hard the entire time I was there to only take things that were gonna be useful to this space. And I networked my butt off, and then I got out to LA and started running with a career through, a big law firm, one of those, like, fancy ones I did there. I was in their entertainment office. I was at a music company for five years, working as one of the five lawyers that kinda did a bunch of the stuff.
Rebecca:And if you know the music industry, it's a very legal heavy industry, so lawyers in those kinds of companies are doing a lot of things. And then I went to Meta. And finally, I was like, you know what? Like, I really want to just do this myself and and feel like I'm helping people on a one to one basis. And I started getting a lot of people coming to me and asking me for help.
Rebecca:My sister, while I was at the music company, was running a TikTok shop partner agency. I was her company's general counsel, so I met a bunch of people that way too. And this just it's it's an interesting field. Intellectual property in the music and creator space is incredibly complex. So my inner nerd is satisfied.
Rebecca:And it and it's, like, just a new frontier of technology and entertainment and intellectual property and a bunch of really cool people putting out really cool things. And I could not have asked for a better place to end up. And so that's that's how I got here.
Ant:Super cool. So you've seen it from all different angles. Right? Like, you've seen it from, like, big international music inside at Meta. Yeah.
Ant:Working obviously early stage with your sister and now creators, and and you've actually got more formal training. What experience has taught you that creators generally talk, being treated badly, right, and taken advantage of? Like, is there something that sort of shows you that what that looks like in practice generally?
Rebecca:Yeah. So, like, as you said, I've I've been on this in a bunch of different capacities and just to set the table a little bit. I think sometimes people villainize the folks in house at these companies and, you know because the reality is creators do get taken advantage of. But when you're when you're looking at this negotiation of any kind of deal that happens between a creator and company, it's not like a bunch of people like Doctor. Evil and Austin Powers, like trying to figure out how they can like screw somebody over.
Rebecca:Like, that's not what's going on. It's just a bunch of people trying to do their job. And so it it's not as emotionally charged as I feel like creators sometimes think that it is on the other end.
Ant:Well, the way the way creators will see it is the blood sucking lawyers who are trying to steal their IP.
Rebecca:Yeah. I mean and and, you know, to some extent, it feels that way because ultimately, it's people trying to exploit their IP. It's not necessarily stealing, but it is definitely exploiting and sometimes exploiting for not a fair shake and not a fair deal. One way that I have advised many creators, especially early stage ones, is when they get these deals, especially at the beginning, right, they're so excited. Like, they're like, I made it.
Rebecca:This is great. And they see it as like a gift instead of a business opportunity. And the brand's not doing you any favors by working with you. Like, you're only getting this opportunity because your work's valuable. And they're only working with you because their marketing team wants to use your face or your content or whatever to get their product out there.
Rebecca:And so understanding that at a fundamental level as a creator, especially at the beginning, is so important because then you can advocate for yourself effectively and not think, oh my god, this is gonna be such a big problem if I say anything. Because, like, so many of these creators don't negotiate their deals at all. And if they do, they negotiate it just a little bit on, like, maybe, oh, I need a little bit more on the money. They're not reading it carefully. They're not asking for basic things and it's a lot of the time from when I've spoken to them, it's because they're afraid that if they ask for anything, they're gonna get the door slammed in their face and that's just simply not the truth.
Rebecca:Maybe you'll get a no but you're not gonna get it. I don't want to work with you anymore because you ask for something. As long as you're not asking for, like, the whole world anymore, like, people are understanding. So, I mean, as a as a former in house, like, so many times I've been on these inside of the deal and I've wanted to take the Creator and shake them and be like, we could have given you so much if you would just ask for it nicely. And they don't.
Rebecca:And I can't say anything because my employer is my client at the time and I it has hurt me so many times over and over again in my soul to just let those deals go through because I'm like, man, you like you could have
Fred:gotten so much more and you're leaving so much on the table. Based on that thing, can we ask what are those big mistakes they tend to make in the contract phase?
Rebecca:Well, first of all, not looking carefully at the right grant is my number one and two and three and four and five that I tell everybody is like, gotta read that so carefully because you are an IP business. And your entire asset class is probably going to be IP unless you start moving into a physical product space. And you need to know what you're what you're giving somebody. And it's like it's like going to a market and saying, I want $5 for this apple but the apple actually also is like three oranges too because they snuck those into the cart and you didn't look. So it's really important to read that carefully.
Rebecca:It's important to understand you know, revisions if they're if you're doing a brand deal for example or if you're if it's a syndication kind of deal or a streaming kind of deal, can they sublicense it? Like because then they're making money off of what they're giving to somebody else. Like they're then being standing in your place and sublicensing it to someone else making money off of that. Are you gonna see that money and can you approve it or not approve it? Those are like just just scratching the surface of things that I've seen people not ask for, not ask questions about.
Rebecca:And then they find out later that something happened and they're like, my god, Rebecca, help me. And I'm like, well, but you signed this. I I'm gonna have to try to renegotiate it, but your leverage kinda goes away once you've signed.
Fred:Yeah. You mentioned that creditors are effectively that they're effectively in an IP business.
Rebecca:Mhmm.
Fred:Do you think they see themselves in that
Ant:way? No.
Rebecca:I I want it to I want so badly to like I've I've been ringing this bell for like probably the last two or more years that you if you are a creator, you own an IP business. But I think a lot of people don't think about it. They think of IP as like a trademark or patent and they're not thinking about it as if you're making an episodic like YouTube series, even if it's just one episode, if you're posting one thing on Instagram like one photo, that's IP. You're you copy you created something copyrightable and they're not thinking about it that way. And it causes so many problems later down the line when they start actually taking it more seriously as a business, and then they realize they're an IP business, and they're like, oh, no.
Rebecca:What have I done?
Fred:Is there a point they look at go, uh-oh. I have an IP business. What have I done? Is there is there a is there that light bulb goes off at some point?
Rebecca:Yeah. When they see that they're that they could have made a lot of money and they can't because they gave it away too early or, you know, they start making they get an offer from an investor or from a distributor for their content and they find out then, oh shoot, I don't know who owns the content. Like, it me? Is it the camera guy? Is it my collaborator who like worked with me on some stuff?
Rebecca:Like, who do I owe money to? And like, who owes me money? I've seen that happen a lot of times where that's the moment where the light bulb goes off and it becomes such a nightmare and it's so much energy and time and expense that goes into fixing it as much as you can and kind of reconstructing from from day one, what everyone owns, what everyone is owed, and what can you actually salvage from your content library basically, to license out, to sell, to exploit yourself.
Ant:Okay. What's an example or what's, like, something, you know, IP ownership mistake that you've seen a creator they've made early on, but right down the track, it's kinda like come to bite them in the bum, and it's really hard to unwind.
Rebecca:So let's let's talk about what's there's somebody that I've that I've talked to about this before where they have a they like co create, let's call it, it's a YouTube, a YouTube show. They co create a YouTube show with somebody and one person is on the camera and it's their channel and the other person videotapes everything for them. They don't have an agreement between the two of them and the person who whose channel it is, who owns the channel, believes that everything that's on the channel belongs to them. But at least in U. S.
Rebecca:Copyright law, the person who technically owns the videos is the person who is the videographer.
Fred:Mhmm.
Rebecca:And unless they have an agreement between the two of them that says, I am assigning to you, the person whose channel it is, my right or licensing my copyright in it, then you have a problem. Unless like, if you have no paperwork, you have a big problem. I see that happen a lot of the time. I see, with music specifically, but I've seen I've I've heard of similar things happening in the creator economy more and more texts that create and that are an agreement between two people that then I get a, oh my god, like we agreed on, there's a percentage of of rights that I said but I meant a royalty stream. I didn't mean ownership.
Rebecca:That happens sometimes. Or you know, oh I agreed with them that they are gonna be a collaborator on this particular episode. But I don't really want them to have a part of it. I want them to have some percentage of whatever the YouTube money that I get is. But like if we if later down the line I want to sell this to as part of my catalog to, like, a distributor or I wanna license it to a distributor, like, I don't really like, how to clear that becomes a big problem later.
Rebecca:You need clear chain of title.
Fred:So what I'm what I'm picking up, what
Ant:you're putting down is that a lot of creators, either because they don't know at the time or from my experience, because they feel icky about it, about getting, like, down to brass tacks and being clear with, a collaborator and being like, hey. Like, early like, we might not have anything of value yet, but there is value, but that's not you know? There's no dollars assigned to it. But, hey, let's be clear on how this lands now. And one one example that that reminded me when you're talking about that first one where there's a creator, you know, essentially cocreators potentially, one on camera and one holding the camera is scares the daylights out of me, but I hear of a a bunch of creators who don't have, employment agreements or contracts, and they have videographers filming all of their content, and they have no agreement at all.
Ant:And, you know, let me check with the the the legal legal sitting across from me now. If, if that's the case, then the person shooting the content owns it.
Rebecca:Yeah. I mean, it doesn't have to be an employment agreement but you need some kind of IP assignment, you know. If you don't have that, the default is to assume that the person who owns the content is the videographer. It depends on what you're doing. There are certain classes under U.
Rebecca:S. Copyright law that need, to be an employment relationship and there are some where you can especially commission something and there's a lot of different rules and parameters over what counts as what's specially commissioned. But yeah, I mean, at a very minimum, you need an assignment agreement that says if it's not a work for hire, right, which would be ideal, that they're assigning to you all of their rights in the work, which would be basically them selling to you or giving to you all of the copyright ownership. Or if they're not willing to do that and you're okay with it, a perpetual license that they that is only for you, an exclusive perpetual license throughout the universe and in all mediums hereafter devised that only you can use that particular video. And you get to decide who gets to use it.
Rebecca:So you get to sublicense it. You get to these are all the things that when I talk to a creator about the brand getting to do it, I'm like, don't do that. But, like, if you have a videographer or someone who's an independent contractor who's working with you, it does actually make sense and that's the only way that you as the creator and the the creator business can go ahead and use that and monetize that content later.
Fred:You've took obviously about that IP being so critical and the IP being the business itself. And you've just pointed out some big pitfalls that you could very easily stumble into. It sounds like that has to be thought of from as early as possible. I think a lot of creators think, oh, I'm just small. It doesn't matter.
Fred:I'll, you know, I'll bootstrap it and do everything, you know, really on the cheap. And then I will worry about that later down the road. And that is doesn't sound like that's the case.
Rebecca:Mm-mm. No. No. Day one. Day one.
Rebecca:If you're putting out content, you're knee deep in IP, end of story. Like, you're if you're creating it, you've got collaborators, you have to work out who owns what, like we were talking about, or who's owed what. You might be using IP that belongs to other people, whether you're putting in music or you're using preexisting creative works and that can come back to bite you in the butt if you're not super super careful about everything you're doing. And like, look, I know it's super daunting as a as an early stage creator who's not making a lot of money but the reality is if you wait until the video goes viral to work all of this out, then you're gonna have a really big problem on your hands and it's gonna take a lot of money and time that you won't have at that point because you'll be busy dealing with this ballooning business that you've got to figure out ownership and you're opening yourself up to a lot of legal liability and you know when things go viral, when you made it, you start getting sued. So being careful and making sure you're not going to get sued because you don't have sloppy ownership paths, sloppy paperwork.
Rebecca:And it's easier than later that you can actually sell your business should you wanna do that. Sell the individual content or license it out should you wanna do that. It's just good sense and it's something that people don't think about in an IP business because what we're doing is intangible. But like any other business is doing all of these things from the beginning so we shouldn't be any different.
Fred:Do creators get sued a lot?
Rebecca:Yeah. Yeah. For creator, it depends on how big you are, Like any creative medium, any creative anything, you get sued a lot. So much so that just speaking from the lawyer's perspective, it's so hard for all of us to get malpractice insurance because of how frequently people get sued. It's really hard for creators to get insurance for errors and omissions because of how frequently they get sued, at least in The US where we're very litigious, right?
Rebecca:Copyright law is very creator friendly for the most part and there are it depends on what you're doing but should if you use Disney's stuff, for example, like, be prepared to get sued. If you if you, like, put Mickey Mouse in your at least get a cease and desist and then have to take everything down. And honestly, more than getting sued when it comes to posting things online that might be infringing, In in The United States, there's something called the Digital Millennium Copyright Act, and it's what allows people to put up YouTube strikes and all of that so that YouTube and the other platforms don't get sued. And this is something that they came up with in the twenty tens to to make it so that these big platforms with deep pockets don't get sued. You have to go after the individual.
Rebecca:And the way that they've devised this is all of the copyright strikes and people getting their their accounts taken down. And honestly, would argue that getting your account deleted if you're a big enough creator is worse than getting sued because that's a huge part of your income stream, a huge part of your livelihood. And that's way easier to happen to you if you're infringing on someone's copyright than if you don't, you know, than if you just take care of it and get it done, it's a lot faster that you're gonna come crashing down than someone just suing you. And they'll and people will do that because it's easier.
Ant:Very interesting.
Fred:Yeah.
Ant:Put the fear of, the big behemoth of Disney and their I IP lawyers and and copyright strikes. And, yeah, I I think it's a really good point, though, that you don't have to be sued for the for the impact to be exceptional. That's a it's and it and and even just pointing out that it's very common. Right? So the protection like, I think I think it's quite common for folks to think it won't happen to me.
Ant:So it's it's like, she'll be right, isn't it? And as an Aussie would say. So super interested in what we can learn from the music industry because they have been protecting their IP and commercializing it for very well for a long time, and it's complicated. But what what can we learn for the creator ecosystem, the creator economy from music?
Rebecca:So in my view, the creator economy is kind of going through the early stages of the music industry. Like the fifties and the sixties when the music industry was really starting to like hit a point where people were getting big and internationally known and there was this handshake deal culture in the fifties and the sixties, nothing really got written down. And there's a lot of like, we're friends and trust me bro and not that they were saying it that way but you know what I mean. And like I think of this one example for handshake deals where, John Lennon and Paul McCartney have this agreement that was just an oral agreement between the two of them that anything that either of them writes, irrespective of whether it's together or solo, has to say Lennon and McCartney in that order. And in like the two thousands, Paul McCartney decides that he's gonna swap that order and Yoko Ono decides that she's not happy with that and that he is breaching an agreement that they had.
Rebecca:And she threatens to sue him. She didn't, to my knowledge, at any point, like initiate proceedings, but it made headlines for like a long time after that. And he ended up putting it back because he didn't want to deal with it anymore. So these are this is something that's happening right now. A lot of handshake deals, lot of trust me bros, a lot of we don't know what the paperwork needs to look like, so we're not going to do it.
Rebecca:We're not big enough to worry about this. It's a lot of the same early stage stuff. The other part of this is like even into the sixties a little bit is that like predatory development deals kind of era of the recording industry where people like Prince had really bad deals. And then, you know, think about you you think of Prince, you think of the artist formerly known as Prince. He went through this whole era where it took him, like, twenty years to get his master's back.
Rebecca:And this is something that musicians have kind of already paid for. It's, like, learning this lesson over a long period of time. The disadvantage in some ways that the creator economy has is that virality takes such a short period of time and this industry is moving so fast. We don't have the luxury of the music industry of taking like fifty years to get to a point where we get to protect our things. We've got to quickly look at what they've done, see how everybody got it wrong and correct course really fast so that this doesn't happen to creators And get those contracts sharp the way that the industry contracts are in the in the music industry.
Rebecca:Get lawyers earlier because that's what musicians are doing. And understand you don't have time to like wait to do all of these things until after you're famous. Like if you if you wait, you end up getting into these bad situations like the Prince situation, like the John Lennon situation. And it's very easy to slip and paperwork needs to happen while things are going, and not after.
Fred:Is is there maybe like three tips you could give creators who are probably wondering, well, where do I start in the space to say like, these are the things you need to focus on at a bare minimum to at least protect yourself from day First
Rebecca:of all, LLC or corporation needs to be one of the first things you do. I heard from someone today about someone that they know who's who was told by a CPA, you don't need an LLC right now because for taxes, you don't need an LLC right now. It's not really gonna help you with your taxes which like, sure, later on, when you make enough money, an LLC or a corporation can be a really great tax benefit to a lot of people. And so it was the advice was, it's not gonna help you right now. And I was just like, it's not about the taxes.
Rebecca:It's about the risk and the liability. Like, if you don't have an LLC or a corporation, you don't have that corporate veil that shields your personal assets. If you're signing everything as an individual and someone decides to sue you because they slipped and fell on a shoot for one of your one of your posts, one of your videos, they can go after your house, your car, your individual assets. They can't do that if you have an LLC and you're managing it properly. That's number one.
Rebecca:The second is you don't need a lawyer for this. But like, at a minimum, just having a piece of paper and sitting down with whoever's working with you and being like, alright, let's talk about all of the things that I we need from each other and what we're willing do and who owns it. And like, I would prefer that you had it written properly by someone who knows the law but if you can't, sit down and just be annoying and detailed and be like, look, like, I just don't want us to fight later. Like, let's sit down and make sure we have everything written out. That would at least give you a paper trail of what your intentions were at the time and it's better than a three sentence text that says, hey bro, I want you to come over and film this thing.
Rebecca:It's better. It's not perfect, but it's better. And then lastly, honestly, trademarking your brand and making sure you have that set is really important. It's expensive, I'm not gonna lie, it's gonna take a few thousand dollars to really get that together But getting it early is important so that someone else doesn't come in after you. I mean, you think about like Jules LeBron, who got really famous for the very mindful, very demure, someone trademarked their very mindful, very demure out from under them and it took them a lot of legal fees and work to prove to the trademark office that it actually belonged to them and they were using it in commerce first in order to get that other trademark that had been filed booted off of the trademark system.
Rebecca:So you don't wanna be that person. Don't let that happen to you.
Fred:Wow. Good tips. Love it.
Ant:Yep. Okay. Great. Get an LLC, write down who owns what, who's doing what, and then trademark. Yeah.
Fred:Yeah. Is is is there one mistake that people make that it's just super hard to unwind? I mean obviously there are tons of them but have you seen one that's particularly tricky?
Rebecca:Yeah, I mean it's very much the not writing things down. Copyright assumes that if you have a bunch of people co collaborating on something, if there's no written anything, that everyone owns an equal part of it. So if someone's just kind of doing a couple things, small things here and there, you need to make sure that it's clear who has more ownership of something, who has less ownership of something if you're collaborating with somebody or if someone doesn't have ownership at all, that's also very important. That's that's like the biggest thing I've seen. I've seen it over and over again where people freak out after the fact and they're like no, like I didn't want to give this like, you know, person who was in the room, in the songwriter's room for musicians, you know, a third of the songwriting on like, of the composition on this song but because they were there and they gave me like three words and it got written in there, and we didn't put a split sheet together, then they technically own a third and they have to like go and like beg them which at this point they have no leverage and who's gonna give up more than they already than they were supposed to have to be to do things and like make it right.
Rebecca:I I've seen that with I've seen that with books. I've seen that with a lot of things where people don't understand that they need to be very clear about who contributed what. And so that's a huge thing that's very difficult to unwind after the fact because it like, there's a lot of nuances in the copyright law about when you have the assignment done and what counts and making sure that that's clear, even if it and again, this is a very easy thing to do. Everyone writes down on a piece of paper, I own this much, you own this much, you own this much, and then everyone signs it. And at a very minimum, it's very clear who owns how much and it's not a three way split if there's three people, for example.
Ant:Let's shift gears a little bit. Because we we've been covering sort of, like, creators protecting themselves through, like, their agreements and setting up their company structures, etcetera. Right? But a lot of creators will sort of they won't be the originators of deals. Right?
Ant:Like, they won't be the ones coming up with the contracts and and the, like, with the offer, etcetera. Whether that's licensing or a brand deal or, you know, a whole bunch of other opportunities that come their way. But what's a single clause that you see all the time that creators sign away without realizing what they're actually committing to.
Rebecca:So I feel laugh, isn't it? It's like,
Fred:oh god. Well,
Rebecca:one of them is they don't understand the breadth of the usage like we talked about, right? So one thing I've been seeing a lot of lately is language, sneaky language and lots of deals. This is platform deals, this is brand deals, this is everything that's this really broad license to use your content, your name, your image, your likeness, your voice, your mannerisms, whatever, where if you read it carefully and conveniently in the brand's favor, it gives them the right to train their AIs on it and maybe eventually do something where they can remake you for their own purposes without needing you anymore if their technology gets there. And, like, look, I I understand that we're moving very quickly from a technological perspective, and this can be helpful for editing purposes or other things. So sometimes it's fine, but a lot of it can be really broad.
Rebecca:And
Fred:What would that sort of
Ant:look like, Rebecca? Like, what like, just broadly without, like, you know
Rebecca:Oh, I have I have TikToks right here. Hold on.
Ant:Okay.
Rebecca:I have TikToks.
Ant:Amazing. And,
Rebecca:like, to be fair, if you're using TikTok, you've already agreed to this.
Ant:Right.
Rebecca:But it's good to know for the future and it's important to try to keep it from becoming super standard and and a lot of people don't read it and it gets hidden places and they don't look for it. And I'll tell you why why I'm freaked out about it in a minute. But so here's what TikTok's terms of service says. I literally pulled this earlier today. Our license to use your content includes our rights to access, reproduce, distribute, share, download, adapt, or make derivative works, e g to translate or create captions.
Rebecca:But e g is not a limiting list. It's an illustrative list. So perform and communicate your content to the public, e g, to display it for the purposes of operating, improving, and providing the platform and developing new technologies, and then in parentheses, including training, testing, and improving our machine learning models and algorithms and services for TikTok USDS joint venture and our service providers blah blah blah. Right? Where it says for the purposes of operating, improving, and providing the platform and developing new technologies and services is very broad.
Rebecca:And you're basically saying use what I give you and do whatever you want with it. And what freaks me out about this, just you know, from seeing what happened a long time ago with data and the sale and usage of consumer data, is if this becomes industry standard and every brand has this in their deal, and I've seen record labels include similar language in their deals, What we're doing is we're making it okay in theory, not in practice yet because there's not really a great way of doing it yet, for someone to take content that you made and then make new content with it. Because the derivative works is in there and improving and using machine learning is in there. So in theory, one could take content that you give them and and make a totally new post, totally new video, totally new whatever and not have to pay you for it because you gave them a license to it as part of the deal you already signed. And someone's going to test this one day and hopefully it won't be allowed by the courts but if it becomes a very standard practice in all the deals across the industry, that's a very, very scary proposition in my view.
Ant:That's huge. Yeah. And I guess that's the the trade off that people have made by uploading content to TikTok, I would argue most people haven't really read the terms of service. No. But there's, like, a too too bad.
Ant:You've accepted it.
Fred:Sorry. Do you I just wanna jump in. Do you do you remember that episode of South Park where they don't read the Apple's terms of service? And I don't know if Stan or Cargus roped into this horrible string of events that could happen because he just didn't read the terms of service. He just clap, clap, clap, accept.
Fred:I just I'm reminded about that.
Rebecca:Yeah. I mean, let's
Ant:Yeah. Let's be real. Who's read these terms of services? Right? They're insane.
Ant:Like, they're huge.
Rebecca:I mean, I'm still on TikTok, but I've read them. I
Ant:You're a lawyer. I hope so. Yeah.
Rebecca:Yeah. They're ridiculous, and they're they're made to be long on purpose in some ways to to make it so that but, you know, it's funny because there's some laws that make it so that you're not held to everything, but it's very gray and you just hope that whatever it is that you're agreeing to isn't one of the things that will be enforced if it's extremely heinous. But it's just a scary place to be. And look, like the terms service of service terms conditions that you're agreeing to are problematic and concerning to me. But what I'm worried about is the smaller deals that are actually negotiated because then you have no leg to stand on to say, how could I have been held to read this over and over again?
Rebecca:It's a much scarier proposition if it's that's the language in the six page agreement that you should have read versus, like, 40 page terms of service.
Ant:So that's the watch out is any any agreement that has similar terms like that, they can repurpose, reuse, train, and vague and broad usage. Right?
Rebecca:Theoretically. And and, like, for for deals I've seen it come across my desk, I've a pretty good track record of being able to get it taken out or at least limited specifically to what you're giving them the access for and saying, like, it's specifically for this. You can use it for this and only for this. And that's worked pretty well so far.
Ant:I mean, the hot button one right now is Meta just walked back very quickly. The AI what was it? Opt out option
Fred:Yeah.
Ant:For your content to be used, to be to recreate yourself as an AI avatar or train their models. Right? Like, I think you already signed up for train their models. But can you quickly tell us a bit about that one? Because it's that came out.
Ant:Do are you across that one? And
Rebecca:Yeah. I know about it. I mean, I I get all the I get all the news, and I laugh about it and I am grateful that I'm not part of those deals because I know that I would have been if I were still there. You know, it the minute I got the notification, the first thing I did was hop on Meta and immediately opt out and I told my boyfriend to opt out and I was like this is gonna be a big problem and they're gonna get a lot of backlash. I wonder how long it will stay up because there's no way and it was funny because I said this as I'm like laying in bed at you know seven in the morning seeing that.
Rebecca:I was like there's no way that SAG AFTRA is gonna allow this to stand and that's exactly what happened. They got so much backlash from the industry because what they're doing by allowing anybody to access your your name, image, likeness is you they're devaluing your your likeness. They're devaluing the value of creators' content. And also, I mean, what I thought I thought to myself when I saw that is, like, you're incentivizing people to make their content private
Fred:Mhmm.
Rebecca:Like, or not to trust you.
Ant:So, essentially, the the mechanism was that Meta brought out an option well, were going to bring out an option where anyone, any user could create a deepfake of anyone else who was on meta. So pick a name, creator, traditional celebrity, whatever. I could sit here and say, I want to make a deep fake of Ryan Reynolds and myself and Fred, and we're going on a surfing adventure. And unless he opted out of that, unless Fred opted out of that, I could go and do that. Right?
Ant:Like and and, you know, Brian Brian might wanna come on a surfing adventure. Fred probably won't. But, we could go do that in real life and make rad content, but, like, that's not the fair like, that's not great. But, you know, you can just imagine how how far people can push this. But it it doesn't really matter.
Ant:Right? It it's using someone's name, image, likeness without their permission. Oh, they permitted that because they didn't opt out. But without their permission, and that's the sort of things they're trying to protect against. And
Rebecca:Right. And and you know there's there's a lot of like you said the the ability for some random person I mean it would have been very scary for me which is why the minute I did I saw it I immediately opted out. I have a private profile for my friends and family and then I have a public profile for the law firm that is content in educational stuff. Someone could have in theory taken a video that I made me standing here talking about work for hire and decided that they were going to say something super offensive using my face and my name and I couldn't have really done much about it except for hopefully issue some kind of complaint and hope that the moderation engines are good. But you know I'm not a public figure in the same way that you know say Mr.
Rebecca:Beast would be or an Ariana Grande would be and they also were opted in automatically into this so someone could have done that with them and they have more, under most state laws in The United States, they have more of a value attributed to their name, image and likeness so you could, I mean this is what the law was made for really, for name, image and likeness in most of the states but like you could have Ariana Grande saying, go to this car dealership, I love buying cars from this dealership and thereby endorsing something that she didn't actually agree to endorse. And that has economic value that she's not capturing. So that was a big problem. That's why a lot of these agencies and industry, entities were really upset about it is because of that part of it. But for the everyday person, it's also very concerning because someone who hates you can just do whatever they want with your face if you have a public profile and that's absolutely terrifying.
Ant:With all this AI, sound like a Luddite, all this AI stuff moving so fast. But like with with the the incredible speed of of Gen AI and the capabilities and, like, every week, something more phenomenal and more powerful in replicating and recreating, how can a creator protect themselves then? Like, is there, like, just a general view they can take?
Rebecca:It's really hard because the law doesn't catch up in time. Like, in general, the law takes ten to twenty years to catch up properly with whatever new technology there is. I mean, think about streaming, it took them. They were fast for streaming, honestly, but it took them like five years, maybe longer to get there. I know that there are laws that are currently being pushed through state and national at The United States level, governmental legislative arms like the no fakes act that aren't perfect but are something and will give people the ability to stop things like deepfakes and have to be asked specifically for approval on anything where that uses AI specifically for them.
Rebecca:The problem is, we run into problems where someone can theoretically have said yes, because there's some kind of mechanism where they have to opt in or automatically opts them in or it obscures information about what exactly they're agreeing to, that's a big problem. And I don't really know how we solve that because we haven't figured it out for data. In most cases, the GDPR in the EU is the best, you know, model I can think of but it's really, really difficult for businesses and so a lot of companies a lot of, countries won't adopt that kind of law because it will create a stall on business in their in their country or in their economic zone. So it's a hard one because of how fast it's moving because this is creating a new avenue for exploitation of intellectual property that we've never thought about before. I mean, of the trademark copyright, name, image, likeness rights law that we have is specifically about human creation.
Rebecca:And so now, like, you know, one one funny thing that I love to talk about is like, the same reason why AI generated contributions to a work aren't technically copyrightable is the same reason why the court ruled a long time ago that a monkey taking a selfie of itself wasn't copyrightable, because it wasn't human. And so you couldn't, a non human cannot own a copyright in something. So we're like having to relate things back to concrete human actions and we're we're not there yet to really be I mean, myself either. Like I keep saying I'm becoming a curmudgeonly like old lawyer who doesn't know what I'm doing. I'm turning into that guy in the office who doesn't know how to print something, like more and more every day.
Rebecca:But like that's where we're at. Like all of the people who are making the laws are old. All of the people who are trying to figure out what's going on are too old to figure this out properly and so I don't really know where we end up right now but my best advice to every creator so far has been this there's never been a time where having paperwork is more important. There has never been a time where having a trademark is more important. There are people like, Matthew McConaughey and Taylor Swift and others who have started to trademark their catchphrases, trademark their appearance, trademark their voices so that they can't get AI replicas made of them without monetizing it themselves.
Rebecca:And there are ways to do that once you get to a certain point. Like that's the we have to get creative at this point and think about new ways to apply things that aren't really meant to protect something to make it do that as best we can and try to shoehorn as much as we can for the time being until there's laws that are very clear and tell us what to do for AI specifically.
Fred:Yeah, you know Rebecca, I just, as you were talking, was remembering back in law school when I went there a long time ago and early days of the internet and apps and the professor were like, like, we're genuinely worried about the speed the law can move at to catch up with the speed of technology. And that was then, and it is, like, 10 times faster than they ever were seeing a video showed us a video about this a politician trying to explain how the Internet worked. It was likely to, like, a series of pipes connected and race horses working. It was just so ludicrous, but you realize that even though that's crazy then it's almost like that now. It's just not a lot of people don't understand.
Fred:They can't move fast enough to catch up with all the technology.
Rebecca:Yeah, yeah, that's absolutely true. And more and more every day, I'm like, I am that man who is likening an app to a bunch of pipes because I don't know what I'm talking about anymore. When it comes to like, how that I understand, but I don't understand how they like even do it. And my sister's boyfriend is a neuroscientist who works with AI all the time. And so I will sit him down all the time.
Rebecca:I need to know this stuff. I'm like, tell me how it works. And he's like, okay, but like, I'm in my 30s. And I'm like, still able to you know get things and learn and I care and I want to learn. The people making the laws are like 80.
Rebecca:And they they had to learn how the internet worked much less how a how an artificial intelligence is trained and how it works to create something different when it spits something back out at you. It's very difficult for me to really wrap my head around all of the very intense programming that had to go into that. I can't even imagine being someone who grew up without a cell phone or an internet connection and having to wrap my head around that enough that I make something that affects other people.
Fred:I know Ant wants to ask a question about revenue and the revenue side of the business in a second, but one last question on AI is, previously, when we were trying to make laws and we were dealing with technology moving very quickly, was a very human centric element. Like humans program machines that did these things and now machines are programming themselves and learning themselves. And sometimes you'll ask people who program these machines, how does this work? Even they were like, I don't know. It's doing its own thing in the background.
Fred:How do you make laws that keep up with that?
Rebecca:It's a great question. I've been asking the same thing. I'm blessed to have a my my boyfriend's a software engineer and so I will sit next to him and watch him do stuff because I'm trying to understand it better myself. And just like you said, AI is programming itself. AI is programming all kinds of things and software engineers are looking over and making sure that the code is correct, they don't always know exactly how it's doing what it's doing.
Rebecca:And he does, but you know, there are lots of people working on different kinds of like, you know, layers that go on and fold in on themselves. He's an app engineer so it's a little more like one thing goes into the next and he can see it. But I know that there are other layers that exist. I don't even, I couldn't even tell you how we even begin to try to regulate that until we understand as like a population what's going on, which we don't. And the problem too is like the people who are making the laws are not themselves programmers, often don't have access to them and don't speak even the same language as the programmers because it's like such a technologically very specific, very term of arts heavy language that like the lawyers who have to come up with all of this stuff are like, my head hurts, I don't know what to do.
Rebecca:And I've seen that a little, I don't, obviously I'm not involved with legislation about all of these topics but like I've seen that in inside of companies where they're like, I don't even know what to do about drafting these contracts to, you what that you have to think so hard and so far in advance at this stage of like, what is every possible use I could possibly need to cover off on as an in house lawyer to make sure that that's covered if licensing in and if you're on the rights holder side and you're licensing out, what is every possible use that they could that the other person could use to, get around the parameters that I'm setting to try to make very clear what you can use? Like, it's this very weird dance that it's always been there but it's so much more complex than it ever has been.
Ant:I wanna stay on this AI side street because there's like a lot of, you know, unknown in the in the, you know, platforms or tools or products using name and likeness and how how do creators protect that. But a lot of creators are actually using Gen AI to create content. And you mentioned before that, like, the chimpanzee or the monkey taking a selfie can't own the the copyright. The machine making the content can't own the copyright. What's the implication then for a creator using Gen AI to not wholly create content, but to help make content whether you know, facilitate or be a a tool that they use in their content creation?
Ant:Are they exposed in any way?
Rebecca:Sometimes. So if you use it for non copywritable things like, you know, like if you're speaking from a music perspective, mixing and mastering isn't really copywritable. Just to set the stage, copyright applies to an original independent creative work that's fixed in a tangible form. So that could be a live stream or a recording. It's it's a it's a CD, it's a vinyl, whatever.
Rebecca:And well the livestream by the way would have to be recorded somewhere but usually they are which is why I say that.
Ant:How about I'll throw a few things that you you like, if I use Gen AI to write a script Yeah. Can I is that mine? Can I protect that? Or is it is it copyright?
Rebecca:Did it write how much of the script did it write? Did you just prompt it and say, write me a script? Yeah. And here's, like, a general concept?
Ant:Yeah. Let's say I prompted You
Rebecca:own nothing.
Ant:Okay. What if I
Rebecca:You own the prompt that you wrote.
Ant:What if I then write a really rough structure and show it some of my old videos and then it punches out a script?
Rebecca:It's a little there's a little gray but like you probably don't because concepts which is what you're basically giving it Mhmm. Don't those aren't copyrightable. Ideas aren't copyrightable. It's actual creative expression that is. Okay.
Rebecca:So, ultimately, the creative expression that's coming from the AI
Ant:Alright. Thumbnail?
Fred:Like, if
Ant:I use an AI thumbnail generator?
Rebecca:Well, so here's the thing too. Do you really need for for a script, You do need the copyright for most of the because you don't want somebody else to go and make the exact same thing. Do you really care about the thumbnail all that much? That's that's the other thing. So like, you don't have to have copy.
Rebecca:Like if if the AI makes it, no one owns the copyright. So you gotta keep that in mind too. Like, there's not like someone's gonna come and tell you you're infringing because nobody owns it. What about like, you can't tell somebody else not to. Right?
Ant:Yeah. What about like, like, character design and logos and things like that? Like, pretty powerful stuff. I think I know the answer.
Rebecca:But The copyright wouldn't be you, but you can use the trademark because you don't have to have created it. You just have to be using it in commerce.
Ant:Okay. Nice. Good to know. What if, I use my voice, but it's like, like, AI is being trained to you then spit out, like, an AI version of my voice and read scripts?
Rebecca:Voice isn't copyrightable anyway. Okay. So that would be covered under name image likeness kind of. That's that's this is a big thing. This is like a new frontier, right?
Rebecca:Yeah. We don't we didn't there wasn't a time before where someone could completely mimic your voice to like re rewrite something without it being somebody else's voice. So this is something that's that's like really tripping people up legally because there's there's not, we didn't contemplate this. Like this is going back to the we did everything based on human creation. So voice is going to be hard because there's nothing that really protects it in the first place.
Rebecca:The best like trademark might, but we don't really know yet. And name image likeness might but from in The US like it's state by state, some states have good protection, some states don't have any protections really at all. And it's like, really, really complicated in the Wild West to figure out like, who has what protections at this stage. If you, if you wrote the script, and you have the AI mimic your voice to say the script then you own the script and we don't know what's going on with the voice thing but like in theory you own your voice. Unclear how at this stage.
Rebecca:And if you gave the AI, if you've spoken to the thing and the AI's terms of service say you can they can use your voice or anything you give them, then they can use it. And it's not they don't own the copyright but they can use it.
Ant:It's it's a fun game. Fred, you got one? This is a fun game. Like, it's scary.
Fred:No. No. I'm I'm just my head is reeling from possibility to things that could happen now. But it look it illustrates what you were saying before, Rebecca. It's like it's a new age and there are so many scenarios and every time something new comes up, we don't necessarily have a legal response for it yet.
Rebecca:Yeah. There's a lot of room right now for test cases, where someone will just sue somebody else to make a point and figure out where the law stands. And Mhmm. It's a scary time to be creating new content, but it also a very interesting one.
Fred:Yeah. And look, I I I we're getting short on time, and I really do wanna cover the the revenue side of things that are a in the business. We've talked obviously about the IP, the content. Creators obviously, they want to be sustainable, they've got to make money. How do they do that?
Fred:What are the best sources? What protection do they need there? In your opinion, out of all the revenue options that creators have, which are the easiest from a legal perspective? Which are the most complicated from a legal perspective?
Rebecca:So everything's complex in some way. But, you know, merch where it's like, you're making like a t shirt or like a mug or whatever, licensing out your IP in like, YouTube form and making money off of that from ad revenue, digital products, they're all that same IP structure we were talking about. And it can get dicey, we kind of know, unless you're using AI, we kind of know where you stand. And they're complex, there's a lot going on, you still need someone who knows what they're talking about, or you can get into a really bad place. But something that a lot of creators have been doing that is it's a great business opportunity and it's really cool and I like it and I'm super here for it.
Rebecca:But it creates a whole new level of complexity because they already are all they're gonna have that IP business but then you're adding another layer is where they start creating consumer goods. So like think like Joyride, Feastables, Elani Nu, like all of them, they have to think about those like run of the mill legal and business issues that come with your standard creator business because they're still making content, they're still doing all of the creator stuff. But then they also have to think about, because these three are food products, right, just off the top of my head, like you got compliance with regulation, food safety, allergen disclosures, nutrition disclosures for certain states. They have to think about, the agreements that they have with a co packer because they're have like a manufacturer, the co packers, like the manufacturer that's going make things to their specifications, having like clear agreements with the co packer about the formula and their processes and whatever, making sure that they own that IP and that the co packer has no right to say, oh, well, we kind of co own it. All of those things just add a whole other layer to what you're doing and it can be a big problem.
Rebecca:And and it's legal exposure and it's also reputational exposure. Like, chef Peely's pink sauce had like a huge scandal where there was like inconsistent coloring, the there wasn't refrigeration instructions, it wasn't clear what their trans like, there wasn't transparency about ingredients. And that made a big a big splash, was a big scandal and it made headlines and it was really bad for them. Whereas like, Mr. Beast's Feastables is like a huge seller, Joyride's a huge seller in Target and other big retailers and it's just like a huge moneymaker for these companies for like the creators overall holding company.
Rebecca:And Alani Nu is like, gosh, like, I don't know anybody who doesn't drink it. So it's it's like a really great opportunity. It's also such a whole you're like entering into your your then becoming a holding company that has several different business streams and it's very complex.
Fred:And do you, you'd also be working across a lot of brand deals specifically that creators are individually, I guess negotiating. And they'd probably be at different scales, as you know, from the small one to the biggest ones. Is there a really common issue typically see creators sort of have or a mistake they typically make in those deals especially around like the revenue they end up getting at the end?
Rebecca:Brand deals?
Fred:Yeah.
Rebecca:Yeah. I mean, they it's it's not even about the revenue they end up getting at the end because a lot of the time brand deals tend to be kind of flat fee unless they're doing something that's an affiliate structure, which sometimes is worth it, but I'm not I'm not the biggest proponent of that unless you're really, really sure about the numbers being worthwhile to you. Because the problem is, like, with affiliate or, with with per view or per click marketing, and revenue associated with that, you don't have a whole lot of control over that. And so you can put in a lot of work for very little revenue, and and it ends up falling a lot on the brand's inability to push it out. So there is that.
Rebecca:But it's the breadth of the usage and the devaluation that comes with that is really a big thing. And, you know, I I always I, like, make the the, like, very, like, exaggerated example of like you could sign a brand deal for $200 and end up on a billboard on Times Square and get paid nothing for it. And that's a huge mistake people make. It's not that people are getting that done to them all that frequently, otherwise we'd hear about it all the time but like the the reality of what a brand can do with what you're giving them if you're not being careful is is very real. And it's not that people are getting paid nothing.
Rebecca:It's that people aren't getting paid the value of the work and the value of the actual IP that they are licensing out.
Fred:How do the how do you know that? How do you know what that value really is as a creator?
Rebecca:It can be hard. There's a book that I read called sponsor magnet that has a really good structure in there, and I recommend it to a lot of folks.
Ant:That's from Justin Moore.
Rebecca:Yes.
Ant:Yeah. Shout out.
Rebecca:Excellent. Friend
Ant:of pod.
Rebecca:Oh, wonderful. Yep. Very, very good book. I really like how he thinks about his pricing strategy, and I recommend it to anybody who's looking at how do I even price out what I'm doing. My friends who are creators use that as their strategy as well.
Rebecca:And then, you know, you kind of feel it out based on what you're getting. You have what what are the what is the overall field of what you're getting at? And this is also why you wanna have a team of people who are really experienced in the industry because they will have a broader experience in what those brand deals like are looking like right now, what the campaigns are looking like, how much they're paying, what to charge, all of that. The other thing that I saw a lot of as an in house lawyer is you may think that you know why you're getting offered a certain amount but it might not be that clear. Like certain campaigns will have different tiers of different creators not based on follower count or engagement straight like directly, that's definitely part of it.
Rebecca:But sometimes it's like, is the niche like straight on what we're looking for? How much do other creators look up to this person and will that get us in their heads? That's something that's very important that a lot of people aren't looking at as an individual creator and don't think about. So like if you're getting offered a deal that's like very in your niche and most of your content is about that particular niche, most of your followers are very involved in that niche, you are what someone would say is like an influencer to influencers in that niche, then you should be asking for more money than if it's like kind of a side thing that's like maybe a little ancillary to what your overall online brand is, online presence is but you might still have an interest and someone still offering you a deal. You will probably see very different offers for those two different things even with the same following.
Ant:Alright. We've, we've covered some serious ground, and it's a lot of it's kind of feels a little bit complex. Right? So I wanna get the complexity simplified a little bit.
Rebecca:Sure.
Ant:And so if we've got, you know, creators tuning in, they're generating good money, they're building a business, but they're sort of really operating like a solo creator. Let let let's be honest with them. What's, like, the first legal move or moves they should make right now to start protecting their business now?
Rebecca:The first thing to do, like, I I've mentioned it before. Was, like, a big thing that I think is really important. Get your entities situated. Don't don't wait until somebody tries to sue you or go after you or you take out a loan to do that. It's better just to get it done outright.
Rebecca:It's gonna cost you in California. It's gonna cost you $800 to set up an LLC, in taxes and then it's like another 100 to file it. It's worth the money and then some. That's number one. Number two is like, talk to a lawyer and know who you would call if you had a big brand deal and you needed something turned around right away.
Rebecca:You don't need to immediately engage with them, but having an idea of who you would go to and and have on your team is important. And, like, something that's a little controversial that I recommend to a lot of people at the beginning of their careers especially is like, I know there's a lot of management companies and a lot of agents out there who will get you brand deals and and do all of that. Most earlier stage creators need a lawyer and an assistant. They don't need to pay somebody 20% of their earnings necessarily, at the very beginning. After you start getting to a place where you need outreach, you need help with like the all of the business logistics aspects, that's when you start bringing in somebody but if you can't afford you know to pay them the 20% and you need that money like that's the beginning.
Rebecca:You can just like have somebody on an hourly basis take inbound for you if you need it and then have someone review your agreements and make sure that they're clear. That's that's another thing is like make sure you have those people on your team, like the very early stages people on your team. And then just make sure everything's documented and you have it written down as best as you can and keep it in a safe place. Don't lose it. Don't put it on, like, your computer without backing it up because you will be so sad years from now if you're trying to license something out and you need to show that you have clear IP, and then you can't do it because you can't show it.
Rebecca:Like I had when I was a very, very early lawyer, like a baby, baby lawyer, I was helping to sell a TV show and the product for the production company, like they were selling episodes and they had the most insanely disorganized, this is like back from like, it was like thirty years plus of this show. And they had no chain of title for anything. And the amount of money, I mean, let's let's remember this was like a big fancy law firm that was like, billing out their first year associate for hundreds and hundreds and hundreds of dollars like, mid level associate with upward of a thousand dollars an hour to do this and go back and reconstruct everything. Like, you don't wanna be in that position. And it's so easy to just do the easy like, the quick just, like, you know, write everything down, make sure it's saved somewhere now than to later be going back through and looking at all of that.
Rebecca:So those are those are first three things I would do. Get an LLC or a corporation if you really want to and you're sure you're gonna get investors. That's what the corporation would be because their shares and a lot of like VCs won't won't invest in an LLC and you'll have to convert it later, which is a pain. But LLC at least is good. Doing a getting a really good solid like beginning team of people around you.
Rebecca:You don't have to bring them on full time or anything, but like having people who you trust around you who can help you out. And then also just making sure everything's in writing. Those are, like, first three clear important things you've got to do if you want to take this very seriously. If you're if this is just, a fun hobby, that's a different story. Like, you don't worry so much about the IP.
Rebecca:But if it's, like, you're taking which you should because there's a lot of money in it, those are those are things you should do.
Ant:I love that. And to riff off your last point of documenting everything and keeping a safe place, there's a a creator, Shannon Jones, from Bounce Patrol, an amazing channel. I I've lost count of how many or probably 35,000,000 plus, just billions and billions of views. And every year, they have they update their I think we've called it that and may maybe the doomsday book or or
Fred:Doomsday checklist.
Ant:Doomsday checklist. And they document who do if if this happens, who do I call or what do I do? And it's written down. So my channel gets deleted. Who's my contact at at, YouTube?
Ant:And, if I you know, someone tries to dox me, who do I call? Who's my lawyer if something happens? So a a very simple doomsday checklist that gets updated and then gets saved, online and off. It's a beautiful thing. Rebecca, thanks so much for joining us on Creator Generation.
Ant:I am equally scared and excited for the future of creators protecting their businesses.
Rebecca:Yeah. You and I both. Thanks for watching.
Fred:Created generation. Look on the mic.