Advanced Issues in Contracts for Interior Designers

Every business transaction is governed by contract law, even if the parties don’t realize it. Despite the overwhelming role it plays in our lives, contract law can be incredibly difficult to understand.

Successful Interior Designers know how to manage the legal needs of the business while bringing a creative vision to life for a client or project. Confusion about rights, obligations, and remedies when things go wrong can strain and even ruin an otherwise promising professional relationship.

This program teaches new designers and entrepreneurs answers to some basic questions, such as:

  • What to do when clients / vendors / contractors don’t pay?
  • How can one use Indemnifications, Disclaimers and Limitations of Liability clauses to balance business risk when the parties may not be economically balanced?
  • What types of remedies are available and what are the limitations in scope for certain types of monetary and “equitable” remedies?

Take a deeper dive into advanced issues for interior design professionals. Learn how contracts can protect your design business and how to safeguard your rights.

Qualifies for .1 CEU credit.

This program was originally delivered on Aug. 17, 2017 at the Design Center at theMART 14th Floor Conference Center, 222 Merchandise Mart Plaza, Chicago, IL 60654

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ICYMI – Cyber Security & Forensics “Data At Risk” 2017

In case you missed this year’s ForenSecure Conference on Cyber Security and Data Forensics, there is a link below to my presentation. To give you an idea how fast the law is changing in these areas, you need look no further than the state of New Mexico. New Mexico joined 47 other states when it passed its own state data breach notification law in April 2017.

Other notable and recent observations:

  • On March 7, 2017, the CIA got doxed by the anti-secrecy organization WikiLeaks. Nearly 9,000 documents appeared online.
  • In 2016, 106 major healthcare data breaches were attributed to hackers.
  • Financial Services – Third overall security incidents, but first in number of incidents w/confirmed loss.
  • University of Central Florida announced a data breach affected approximately 63,000 current and former students, faculty, and staff.
  • Yahoo – general counsel resigned and the CEO lost 2016 cash payout as well as 2017 equity award.

See the full presentation with notes here:

Forensecure 2017 Data At Risk

TRENDS IN DIGITAL MARKETING

Digital Healthcare Continues to Evolve

Widespread distribution of digital communications technology (phone, tablets, ultra-portable laptops, gaming devices) has changed the nature of marketing. However, medical practices and other healthcare providers are reluctant to use digital marketing techniques. While most industries move away from the distribution of massive, shotgun-style email and snail-mail campaigns and toward targeted, social media and demographic-driven efforts healthcare marketing is falling behind.

Digital marketing execs face many challenges getting the message and media mix right. Early adopters provide a look into the changing nature of marketing. From a pragmatic perspective, there are barriers to entry for digital healthcare marketing efforts (privacy, regulatory), the growing use of content marketing (native, branded), social marketing, and electronic marketing strategies (email marketing, online scheduling, etc.) in the healthcare field and customer-oriented services that can be a strategic use of the Internet for marketing to providers, patients and third-party service providers.

The evolution of healthcare marketing toward greater use of “native,” sharable and relevant content provides both obstacles and opportunities in acquisition and use of third-party media content.

Use of content marketing is increasing.

On average, 35% of all marketers use print magazines, but 47% of healthcare marketers use them. In print, 28% of marketers use print newsletters compared to 43% of healthcare marketers, and 26% of marketers use print for annual reporting compared to 36% in healthcare. When it comes to using blogs, 74% of all marketers use blogs compared to only 58% in the healthcare industry. The situation is similar for social networks, with an interesting exception – 71% of healthcare marketers make use of YouTube, more than the average of 63%. This is likely because healthcare professionals use YouTube to televise procedures and interview doctors.

By now marketers should be accustomed to using their own creative content. However, focusing on owned assets like a website and email won’t move the needle enough to impact the bottom line. As a result, healthcare marketers are integrating new content (in the form or “advertorials” or “native” content). This in turn is developed alongside a long-term SEO strategy.

Native advertising distributes “sponsored” content on relevant pages, delivering relevant content to the right audience in a way that is non-intrusive and integrates with the user experience.

Native Content often involves use of product/service reviews and endorsements. It is important to include proper disclosures when using native content. The FTC will initiate enforcement actions against marketers that deceive consumers.

In the Matter of Son Le and Bao Le, the FTC charged that the two brothers deceived consumers by directing them to review websites that claimed to be independent but were not, and by failing to disclose that one of the brothers posted online product endorsements without disclosing his financial interest in the sale of the products.

Cybersecurity is one of the top risks organizations must manage in 2017

This article first appeared in THE LEGAL SIDE OF TECH on CIO.com here.

Recent high-profile data breaches highlight the challenges in understanding how laws apply to a wide variety of information management scenarios and a host of other regulatory, compliance and legal issues.

Cybersecurity and privacy continue to make headlines. Experts have more questions than answers addressing risk management concerns in the evolving cybersecurity market.

High-profile data breach incidents

On March 7, 2017, the CIA got doxed by the anti-secrecy organization WikiLeaks. Nearly 9,000 documents appeared online showing the CIA sought to observe conversations, online browsing habits and other activities by infiltrating the systems that contained them, such as Apple and Android smartphones, laptops, TVs and even cars. The government is not alone.

Nearly every industry that handles sensitive data has been breached recently:

  • Healthcare: ransomware attacks are projected to rise 250%, and hackers were responsible for 106 major healthcare data breaches in 2016.
  • Financial services: Despite ranking only third in volume of security incidents, the financial services industry came in first in number of incidents leading to confirmed data losses.
  • Insurance: Risk is twofold in this market, because insurers are not only targets of hackers, they’re also providers of coverage to victims.
  • Education: At the beginning of February 2016, the University of Central Florida announced a data breach had affected approximately 63,000 current and former students, faculty and staff.

Third-party vendor risk

Third-party vendors remain a growing source of concern. Companies are well-advised to look beyond their own cybersecurity policies and standards to the potentially bigger risk that arises from giving third-party vendors direct access into their systems. Indeed, low-tech threats like errors by vendors’ employees represent an often-overlooked danger to company data security. Newer technology trends such as enterprise-level SaaS provisioning and cloud data storage and processing offer new possibilities and perils alike.

Given the inevitability of cybersecurity breaches, companies are increasingly looking to insurers to offset the losses they are likely to face after suffering an attack. However, because the cyber insurance market is young and growing rapidly, the scope and availability of policies is still fluid. Companies should carefully review the specifics and limits of coverage. According to one source, most questions right now are focused on coverage for business interruptions and losses related to fraudulent transactions.

Smaller companies may face even bigger challenges. Few small companies have the staff or the resources to actively manage cybersecurity risk, and many assume that their business risks are small. Despite their smaller size, these businesses will incur the same level of breach-related costs as larger companies.

U.S. Supreme Court Protects Varsity Brands Uniform Designs

By now it’s hard to say anything new about the U.S. Supreme Court victory of Varsity Brands in the STAR ATHLETICA, L.L.C. v. VARSITY BRANDS, INC. copyright infringement lawsuit.

If you don’t know the case it’s fairly straightforward: Varsity Brands has over 200 copyright registrations for two- dimensional designs (lines, chevrons, and colorful shapes) used on the surface of the cheerleading uniforms that they design, make, and sell. Varsity sued Star Athletica, who also markets cheerleading uniforms, for copyright infringement. Star won in District Court on theory that the designs were ineligible for copyright protection. Varsity won on appeal to the Sixth Circuit who held the graphics could be “identified separately” and were “capable of existing independently” of the uniforms qualifying for protection under the U.S. Copyright Act.

Justice Thomas writing for the Court held: “an artistic feature of the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.”

What seems plain and simple on its face may prove otherwise. The Star Athletica decision is simply the jumping-off point for future controversies regarding the existence and scope of protection for fashion designs and concepts. While the Court does note the commercial aspect of the situation, “two- dimensional designs—consisting of various lines, chevrons, and colorful shapes—appearing on the surface of the cheerleading uniforms that they design, make, and sell,” little is made of this fact elsewhere in the opinion. Given the $2.4 Trillion global value of the Fashion Industry, I suspect the case will form the basis of many IP enforcement cases soon to come.

Contract Basics for Interior Designers

Ever had an Interior Design client refuse to pay, not give you credit for your work, or use your design without actually hiring you? As unfair as these situations sound, the truth is they happen often. Poor planning, client management or incomplete contracts account for most of these situations. Get expert legal advice from a Chicago-based lawyer who understands the ins and outs of the design industry and learn how to address some of the biggest risk factors designers face today and how your contract can (and more importantly, should) protect you. Follow the link for access to the free informational prevention about improving your interior design contracts.

presentation-contract-basics-for-interior-designers

Do we need a Federal Right of Publicity Statute?

From film to fashion, creative industries are taking steps to protect and promote original work. Designers and manufacturers need to know what steps they can take to protect their designs, their businesses, and their profits. As more interior designers develop signature styles and product lines, protecting original design is more important than ever. Many industry leaders have honed in on this idea, and are exploring the line between inspiration and replication.

In my recent CEU presentation “Contract Basics for Interior Designers,” I discussed repetitional harm that comes from bad clients, bad projects and competitors. My lecture is part of the Business of Design Lecture Series curated by Design Center at The Merchandise Mart. This event was held February 23, 2017. The growth of sites like Yelp! and other unmoderated opinion sites create an easy way to vent frustrations that may end up causing problems or designer professionals later.

Curiously, few have studied the application of State rights of privacy or right of publicity rights to Interior Design.

Right of publicity law is defined solely by reference to a patchwork of of state statutes and common law decisions. Different states have widely divergent right of publicity laws. This creates risks and uncertainty for a wide range of content producers. At the same time, strong federal protection to free speech rights often color these risks.

For example, take the State of Indiana. This state’s right of publicity statute is the most plaintiff-friendly in the nation, and it contains sweeping jurisdictional and choice of law provisions.