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In this episode, Barbara and Andrew discuss:
*What are the key legal considerations for doctors when marketing their medical practices?
*Why is it crucial for medical professionals to carefully review marketing contracts and ensure ownership of their content?
*What recent legal changes should medical practice owners be aware of regarding business regulations?
Key Takeaways:
“You don’t go to the doctor after you have the heart attack. You go to the doctor so you don’t get the heart attack. That’s why you come to me – come to your lawyer first, so you don’t have a heart attack.” – Andrew Contiguglia
Connect with Andrew Contiguglia:
Website: https://dontskipthelegal.com/
https://contiguglia.com/
LinkedIn: https://www.linkedin.com/in/ajcesq1/
Instagram: https://www.instagram.com/ajcesq/
YouTube: https://www.youtube.com/channel/UCnxsh9iFFEdwjIwMNEM_eXg
Twitter: https://x.com/AJCEsq
Facebook: https://www.facebook.com/contiguglialawfirm/
Connect with Barbara Hales:
Twitter: https://twitter.com/DrBarbaraHales
Facebook: https/www.facebook.com/theMedicalStrategist
Business Website: https://www.TheMedicalStrategist.com
Email: halesgangb@aol.com
YouTube: https://www.Youtube.com/TheMedicalStrategist
LinkedIn: https://www.linkedin.com/in/barbarahales
Books:
Content Copy Made Easy
14 Tactics to Triple Sales
Power to the Patient: The Medical Strategist
TRANSCRIPTION (160)
Dr. Barbara Hales: Welcome to another episode of marketing tips for doctors.
I’m your host, Dr. Barbara Hales. Today, we have with us Andrew Contiguglia. And he is a seasoned business attorney and founder of the Contiguglia Law Firm. That’s right. With nearly 30 years of legal experience his business focuses on business law, corporate law, complex litigation, and risk and crisis management. He and his team are dedicated to assisting startups, entrepreneurs, and established businesses navigating legal challenges, and ensuring their success and compliance with the law and brand management.
He is the author of Don’t Skip the Legal: The Startup Guide for Entrepreneurs and Business Owners and host of the Don’t Skip the Legal podcast and YouTube channel. For more insights and comprehensive legal solutions tailored to your needs, visit the Contiguglia. We’ll get back to that letter. I think that trying to pronounce it is just going to make you, as well as me, remember the name all the more.
Andrew Contiguglia: I know. And listen, you are in a hefty group of really great people who couldn’t pronounce my name. But now that you know and you see it and you put your eyes on it, you’re like, oh, yeah, now Contiguglia once you learn it it’s easy.
Dr. Barbara Hales: Yeah. I’m just going to practice its night when I’m when I’m going to sleep.
Andrew Contiguglia: That’s right.
Key Legal Considerations for Doctors Marketing Their Practices
Dr. Barbara Hales: Okay, so the overview of key legal considerations doctors must be aware of when marketing their practices must be pretty hefty. What is it that you see in that?
Andrew Contiguglia: That’s a great question. And I’m glad you brought it up. Because the industry for doctors, I think is a lot like the industry for lawyers. And we were kind of talking about this before we started recording, we’ve got those client confidentiality, or in your case, patient confidentiality issues that you need to manage and deal with. There are ethical, other ethical considerations. And you know, the hardest part about being a doctor or lawyer, I think is you’ve got these governing bodies, who really like to toy with you, and play with whether they’re going to take your license to be a doctor away, and you get a grievance or something in that respect, you have to defend that. So, I find myself as a lawyer really tiptoeing a lot in in certain areas. And I can imagine that your listeners and doctors are in a similar situation when it comes to, you know, managing their practices and trying to, you know, promote their businesses all at the same time.
I grew up a doctor son, so I’m familiar with the way it was my father was a nephrologist, and owned a kidney dialysis unit here in Colorado for, you know, decades. And I remember growing up and going on rounds with him and meeting his, you know, patients and stuff like that. I don’t think he could do that today; I think with some of the requirements, you know, that were there.
But I also know that they never did any marketing. It was always like, people show up, they go to their general practitioner and they get a referral, go see Dr. Contiguglia , my father, not me, for you know, you got kidney problems, go do that kind of thing. And so, I never really saw that in the buildup of his business over the years that, you know, I sort of watched him do that. But over the years as a lawyer doing this now 30 years, I love the marketing space, and it’s given me this opportunity to work with companies, I’ve worked with dentists, I’ve worked with medical doctors, I’ve worked with other law firms, to really help them navigate some of the issues that come up in the marketing space.
Now, you’re niched in real deep when it comes to doctors, but some of these issues when it comes to the legal issues of marketing, I think could extend anybody. But I’ll you know, but as we discuss this in the, in the form of, you know, how we’re doctors are going to need to manage this. I think it’ll be applicable to pretty much anybody who is looking at marketing and, you know, working with their business. So, I think the first thing really is issues of with like copyright and trademark and that’s a big, a big piece of what we do in marketing. Here you are at, you know, looking at your copyright. Imagine you created some really cool brand or logo or drawing some.
Don’t worry if you’re blogging, and you want to make sure that this creation of yours is not used without your permission. So, all of these doctor offices, these doctors, they might want to protect it legally. You know, we’re getting away from this idea of building businesses around our own name. Now, I’ll tell you I’m old school, and consequently, a law firm. Come on, in my own name. But as we all know, in the advertising and the marketing business, our life in terms of succession, like what comes after contact, Lilia, we need to think about the next person.
And so, in the medical field, I’ve noticed you get like North Denver radiology. And so, there’s these real generic names that sort of come up for the doctors to sort of consider what’s going to happen when I sell my practice later on down the line, what branding or what, you know, intellectual property, can I create as a business owner outside of being a doctor can I create because I’m trying to build a business, in addition to saving lives? So, looking at, go ahead.
Dr. Barbara Hales: Do you find that artificial intelligence is now a threat to trademarking?
Andrew Contiguglia: I don’t think it is. And I’ll tell you why. The interesting thing about the Copyright Office and the trademark office is, you know, when it comes to copy copywriting things, it we’re talking about creations of creative creations of creative works, things that like books, stories, music, songs, TV shows, paintings, drawings, you know, that kind of thing. The Copyright Office now has a component when you apply for a copyright, about whether you use artificial intelligence in the creation of the item. And if you have, you won’t get a copyright on it. So, one of the requirements under the copyright laws is that the items that you are looking to copyright must be human-generated.
Dr. Barbara Hales: How can they tell?
Andrew Contiguglia: You’re right. Somebody could lie. Somebody could certainly lie under the penalties of perjury when they apply for a copyright and say that they created this. If it turns out later on to prove that, that it’s proven that they didn’t really create it, that it was a work of artificial intelligence, they would not have the copyright protections. They’re hoping to protect and so they don’t have enforceability. They don’t have the opportunity for fines and costs and attorney’s fees when it comes to enforcing those things.
Now, my personal opinion on that subject is going to be I think the Copyright Office is going to have to, you know, change the way it evaluates copyrights, we don’t have a lot of litigation in the area. We don’t have the copyright office, rejecting people for artificially made logos and things like that, yet, they haven’t gotten to the court system to be litigated about how much effort did Barbara Hales put into the creation of the prompt that would then create the image that you are now seeing today because there is a bit of human interaction when it comes to artificial intelligence and the creation of creative items, whatever it might be.
So, I think we’re going to see some transition from a legal standpoint in looking at it in that standpoint. So, we’ve got that when it comes to trademark, you know, trademarking is a little bit different. Think of a trademark as your badge of identity for your brand. You know, hails marketing may create enough of notoriety and have enough you know, foundation in the marketing community that you have developed your own identity think Michael Kors, in the fashion industry, somebody’s name that has been into that, but you’re looking when it comes to trademarking, things like company names, logos, slogans, product names, those types of things, you still have to argue, are your brand identity before the trademark office, which is different than the Copyright Office is going to issue you that trademark.
So, creating a logo for your business and coming up with a catchy slogan, a trademark is going to ensure that you can use that logo you can use that slogan in the marketplace. So, think of trademarking as your brand identity versus a copyright as sort of your shield or the protection of the things that you create.
Trademark Protection For Medical Practices
Dr. Barbara Hales: What steps do you recommend for physicians to register and protects the trademarks for medical practices, ensuring the practice name, logo, and the slogan and that they’re legally secured?
Andrew Contiguglia: Yeah, that’s a great question. And a lot of it comes down to how much have you used those items that intellectual property in your community as a business? So, when you file for a trademark, you can take one of two approaches to it. You can take what’s referred to as a usage trademark, meaning I’m applying for my trademark today, because I am using it today, I have you know, use it in the community, it is a component of my brand identity. And then it’s up to you to prove to the trademark office that you actually have the brand identity that you’re looking to trademark, it has to be unique. It has to be authoritative in your industry, there’s a number of different factors to be considered when it comes to your trademark. So that’s the first way of doing it, establish it first, then trademark it second, that’s number one.
Number two is you can file what’s called an intent to use a trademark. So maybe you come up with an idea of like hails marketing, it’s the sky’s the limit, and you want to go ahead and identify that as your trademark slogan, but you just came up with it today, you want to make sure nobody out else out there named hails is going to, you know, take your slogan, so you might file what’s called an intent to use with the trademark office to sort of hold your place in line. And then over the next six months, you’ll be allowed to develop your trademark and your brand around that slogan into the future. And then you could submit it after six months to say, hey, trademark office, we’ve done it. And they’ll make a decision based on what you’ve done. If you haven’t done it by that point, you can extend it an additional six months. And you can do that up to three years. So, you’ll get 246 extensions of an intent to use before the trademark office is going to say, Yeah, we’re not going to hold this spot for you any longer you got to go.
Now that seems like it might be an easy thing to do. But every time you ask for that extension, it’s going to cost you I think the filing fee for that is $375. But don’t quote me on that. So, you’re doing that six times that can be expensive.
Dr. Barbara Hales: What happens if you’ve gotten the trademark, but you don’t renew it through a lack of being aware? Like five or six years?
Andrew Contiguglia: Yeah, so that’s a good question. So, your trademark is going to be valid, and you have and you have an obligation to enforce it. So, when you are using it, if you see anybody infringing on it, you have an obligation to actually go and tell people you can’t use it, you have an obligation to bring lawsuits against them or apply cease and desist. Because if you don’t do those things, you’re going to lose your brand identity. And that’s the thing. And the nice thing is with the trademark office, they tell you when your mark is starting to expire and give you an opportunity to renew it and things like that. So that’s always a good opportunity.
Difference Between Trademarking And Registering
Dr. Barbara Hales: What’s the difference between trademarking and registering?
Andrew Contiguglia: For a copyright?
Dr Barbara Hales: Yeah.
Andrew Contiguglia: Okay. So that’s a great question. So, think of a copyright being for creative works, things like artwork, writing, a logo that you create for yourself something artistic, the blogs, you write, excuse me, the content up on your website, that’s going to be covered by copyright. Trademarks, on the other hand, are going to be things that are brand identifiers, things like your logo, or name, product names as it comes to your particular industry. Duration, also, I think, is a big difference. Copyright protection is for a set period of time. And it’s usually the life of the creators. Plus, if I remember correctly, it’s 75 years. And with a trademark, you can really that can last forever with proper use and renewal requirements going on. If you remember, there’s a few things that are coming up.
So out of copyright protection, you have Winnie the Pooh, came out of copyright protection and so now it’s going to be part of you know, everybody can go and make whatever kind of Winnie the Pooh this or Winnie the Pooh that you want Disney that’s gone. Same thing with Mickey Mouse that is coming out and coming into the public domain, too. So, you’re going to see some very interesting, creative works now coming out with these new ideas with that.
The last thing also I think is between the two is really the purpose. Copyright stops people from copying your creative works without your permission. And trademarks prevent other people from using your brand’s identity so your name or your logo in a way that could confuse customers. So, think of trademarks as a way to identify and brand yourself independently from everyone else to make sure that nobody else can be confused with you. Versus copyright, which is you want to protect the things that you have created.
Legal Do’s And Don’ts For Doctors Using Social Media
Dr. Barbara Hales: Let’s move over for a moment to social media. And it’s something that we’re all on, some more than others, to try to get our name out and get name recognition. What are some legal do’s and don’ts for doctors using social media to market their services, including patient privacy and ad Advertising guidelines, as long as you’re not using patient name, and what you do are the other things that we should be looking out for? Absolutely.
Andrew Contiguglia: And I want to caveat this response with everything, everybody is different, every case is going to be different. So, what one doctor does is not going to be dispositive of what another doctor does in the same lane. You know, I think nowadays with advertising regulations, the Federal Trade Commission really governs what people put out there into the world. And they are starting to crack down on social media influencers and people in the social media space about how those individuals are advertising their services or advertising products.
So, I could certainly see a situation with a doctor being sponsored by I’m using that term loosely, by a company that wants to promote a stethoscope, let’s say, and so the doctor is going to go, I can hear everything with my, over the ear stethoscope, and you know, here you go, everybody should go out and buy one, the link is in my bio. And yes, I get a $25 commission for every time you buy one of those, I could totally see a doctor wanting to get into sort of that brand identity and use things in the areas of nutrition.
Nowadays, I get a lot of that with supplements, there’s a lot going on with that. I have yet to see it in the area of pharmaceuticals and things like that. But I certainly see that that could be something down there in the future. So the reality here is in when it comes to the Federal Trade Commission, and when you are promoting a product of somebody else’s, you have an obligation, a legal obligation, not an ethical one, but a legal one, to notify your consumers or the people who are observing your broadcast, that you have a stake in what you are promoting, whether you’re going to get a kickback from a sale, whether it was given to you for free, whether you have a stake in the company that is trying to promote those things. That I think is something that the FTC is going to come down and really crack down on you in that process.
There have been some really high-level influencers, who have been busted by the FTC for promoting brands and not telling people that they are affiliated with that brand in some form or fashion that they’re either getting a kickback or royalty or something like that. So, I think it’s really important, any doctor who is advertising for somebody else, to promote a product, absolutely, you gotta give that up and say, Listen, I have a stake in what I’m selling you. Because the concept of truth and advertising really needs to be pushed on the end consumer, they need to know that you’re biased in what you are promoting to me. And so, as a result of that, I need to know that I could be buying something that could help you.
Now the opposite of that, I don’t think it’s true. Now there’s sort of a divided lawyer, you know, opinion about this, which is, if I’m not getting paid, if I’m not getting endorsed, it just so happens, hey, I went to the store today and I picked up this thermometer, I have to tell you, this is the most accurate thermometer I’ve ever used in my medical practice, it doesn’t matter what hole you stick it in, you’re gonna get the best, you’re gonna get the best reading of the body temperature no matter what. Now, if I’m not getting paid by that thermometer company, but I’m telling you what I like about it, I don’t think I have an obligation to say, I’m not getting paid.
But if the thermometer company comes to me and says we’d really like you to promote this, and we’ll give you a penny for every one of these that gets sold. Now I’ve got an obligation to do that. So, I think that space is really the big, the big piece of that. And also, you got truthfulness, I think that’s a huge part of it. Every advertisement that you’re bringing up must be truthful, shouldn’t be misleading, that is not only akin to the products that you’re promoting, but it’s also about you’re the nature of your business. I don’t think, you know, doctors may be a little bit different like but in the legal community, unless I’m in a jurisdiction that allows for me to say that I quote unquote, specialize in business law, I’m not allowed to promote that. I’m not allowed to say I’m a specialist, maybe different in the medical field as the specialists around all the time.
So, I think every state is going to have a different requirement about what you can and cannot do to tell people about your specialty, or whether you just say I’m an orthopedic surgeon, or I’m an orthopedic surgeon who specializes in hip replacements. That would be something you know, a little bit different. I think testimonials creates some issues. I think we’ve got patients, you know, telling people about their experience with you. And I think that it’s very important when a doctor uses testimonials from one of their patients that they get their consent and a waiver of any confidentiality and the process of doing that I think you need to put a limitation on what you can and cannot use any of those testimonials for, hey, Barbara, I would love it, if you would give me a testimonial about the, you know, the cast I put on your arm the other day, that would be awesome.
Understand, I’m only going to use it on my website in this section called testimonials, I’m not going to use it anywhere else, because you want to make sure that the relationship with your patient is protected. Because the last thing that you want to see is that I’ve now taken that interview, I’ve spliced it up. And now I’ve put it into different areas, and it’s now on a YouTube channel for something completely unrelated. And it’s just you as a soundbite with, you know, Best Cast ever, whatever that is, that does or doesn’t necessarily agree with what you consented for me to use your imagery for.
So I think you need to really play that one, you know, on a case-by-case basis, when it comes to, you know, your patients and that comparative advertising, I think that many instances when you’re trying to compare yourself to, you know, Dr. Jones down the street, you know, when Dr. Hills is the best tip, Doctor, you gotta be careful about bad mouthing, you know, Dr. Jones down the street, for botching you know, a hip replacement at some point, if there’s any Dr. Jones out there, I completely made this up. This is not about you at all.
You touched I don’t, I don’t want to upset anybody. I’m making names up and I’m pulling them off my screen as I’m sort of going through my notes. I think you and I touched briefly on patient privacy, HIPAA compliance, I think that’s pretty much a no brainer when it comes to that kind of thing. I do also think that nowadays where doctors can really kind of see themselves into the Dr. Oz Dr. Phil celebrity space, which I can’t imagine any doctor isn’t hoping they get into, you know, you’re looking at your likeness and the things that are important to you and your business and being able to present their qualifications and credentials to other people. So, you need to make sure that you’re properly licensed, if you have a certain brand that you’re sharing licenses appropriately.
If you’re using content from someplace else, that you’ll that you’re properly licensed. I’ll tell you a horror story about that in a minute. So, remind me in about two minutes about a stock about stock photos and things like that on websites, I think that’s a big piece of it. I think, you know, accurate representations of your qualifications, making sure that your information on your website is up to date those things credentials, keeping up to date, if you’ve lost a credential somewhere or acquired new ones, making sure that any of those changes are properly reflected in your marketing materials. Again, this all comes down to truth in advertising, the last thing you want is somebody you know, a patient coming to you because they expected that you were still doing hip surgeries, because that’s up on your website, as some of you do. But the last one you did was 25 years ago. And here we are the complete, you know, methodology and process of doing a hip replacement is different than it was 25 years ago.
So, you need to sort of evaluate those. And I think also the scope of your practice accurately representing the scope of your services, and what you’re legally allowed to provide, making sure that you’re niche down and not breaking anything in that respect, when it comes to doctors utilizing marketing services, so I’m going to throw you into the mix on this. I did some research on you, you’re a content creator. So, you like to help create, you know, content for doctors and Misumi. But you create things they put on their blog, they put on their website, you help them create, you know, dialog that they’re promoting out there. I haven’t reviewed your contract, but I at some point might want to, because I’m curious about after you create it, who owns it. Because this gets back to that copyright question we brought up at the very beginning, where the copyright stands with the person who created it.
So, Barbara, if I hire you to create the best medical blog in the world, and you’ve written some great stuff that I put up on my website, and I go to try and copyright it, it that doesn’t belong to me, it belongs to you. And you have given me, you know, a limited opportunity to use it on my website. So that really depends on the nature of your contract with me and what services you’re providing to me. And I think that doctors really need to be careful about how much authority they want to give to marketing individuals about how much stays in the hands of the marketing professional. I have run into problems with other lawyers who hire marketing groups that say, hey, we’ve got this best personal injury denver.com that we’d love to, you know, put all your stuff on, and they and you go great. And you use their services, they take everything that you have, and they build this beautiful website of your best personal injury lawyer denver.com. And now all your stuff is there, and you’re doing it, you’re doing it you’re doing everything’s great, all of this brand, you’re getting calls and calls and calls and then all of a sudden, you say, great. I added the personal injury, amount of the personal injury business or something else comes up, you get in a fight with your marketer, because guy that never happens, does it. And now the marketing company has gone. And now you want all this content that you created, and the marketing company is gonna go, no, it belongs to us, that was all proprietary from what we had created on your behalf.
And that belongs to us, you don’t get it. And now I have had calls from other lawyers, other business owners who are like, well, what happened? I mean, those images are of Me, the content we created as of my practice area, and all these things, what am I going to do? And I’m like, well, let’s look at the contract. And unfortunately, these aren’t work for hire contracts. Because when I hire you, I want to make sure that I maintain the ownership of the things that you create on my behalf. That’s the whole concept of work for hire contracts. But if that’s not there, guess what, you’ve lost all of that. And in many instances, you see these web designers or other marketing companies holding your content hostage until you either pay them a fee, pay them, well, we’d created it’s $25,000 worth of stuff that we created. So, pay us $25,000. And we’ll give it all to you. And now you got to decide, well, what’s my brand worth? And what was their what’s really, there. So, like, if you look at my website at Contiguglia.com, everything in there is original, with the exception of the things on the blogs, which we get through stock services, but all my photos and everything I take, I want to make sure that I have ownership in everything that I create. So, when I use marketing companies, and I do I use content creation companies, I use people who help edit my podcast, I have people who help write my blogs, and do web design and things like that.
And every one of those contracts, I make sure it says that I am accountability and accountability law firm owed anything that you create, at the end of the day. I have yet to really get any pushback from anybody on that. But when marketers say no, this is mine, I’m going to create I’m like, Great goodbye. You’re not the right person for me. So, it doesn’t matter. It doesn’t matter under those circumstances. So, I think that is that’s an important piece. Got I’ve covered a lot in this. I haven’t stopped talking. So, I’ll give you an opportunity to ask some more questions and follow up from all of this. I could talk for hours on this stuff. Clearly, I like it right?
Dr. Barbara Hales: It’s kind of amazing that lawyers themselves get caught. And in that quagmire, you would think of different specialties. But you wouldn’t think that lawyers themselves would not check more into that.
Andrew Contiguglia: It’s funny because I represent a lawyer marketing company. And in my discussions with the owner of that company, we talk all the time, because they also run a podcast and one of the episodes of their podcast was those types of horror stories about companies holding the lawyers content hostage to either get paid or elbow out the lawyer out of that stuff. And I mean, think about all the energy and the time and everything that you put into building your brand. Think back to copyright and trademark from the very beginning. And now it’s being thrown out the window and in the hands of somebody who you are in a legal dispute over. And sometimes you have to sort of sit back and go, well, what’s it going to cost me to recreate everything that I’ve just now created over the last five years. And that can be expensive. And it may be enough where you could say Alright, here’s what we’ll do, let’s offer, and you can do this.
I’ve gotten to marketing companies and said listen; I will get in a legal argument with you. I will sue you over this. Let’s avoid it. My clients willing to pay you $10,000 for all this content. What the hell is it from you for you? Why do you care? Give me the content. What? You can’t use it for anything else. Barbara, if you’re putting Andrew Contiguglia for the Contiguglia Law Firm up in your marketing stuff, you can’t use Andrew Contiguglia, his face when you’re doing John Doe’s website on the exact same stuff. So, the fact that you have all of Andrew Contiguglia as mug and content and videos and everything in your possession has zero marketability for you unless you’re going to try to general realize it but then you always do have this opportunity to say, well, you don’t have my, you don’t have my permission to use my likeness in that context as whatever you’re doing. So, there are ways that you can protect yourself. Another one, I’m going to give you another horror story. God, I hate being the bearer of doom and gloom, I feel like a doctor.
But let’s, but here’s this, I have seen situations. And this happened, I had an in-house marketer for a while. She was great. I had to teach her about the legal issues when it came to marketing. And so, she put together some great marketing material, and she presented it to me. And she goes, well, what do you think of this? I said, Listen, it’s beautiful. I think it looks great. Like, but where did you get those images? Oh, I got them from Google image search. And I’m like, okay, you need to go find other images. I’m like, we are subscribed to Adobe Stock go to Adobe stock images from there. Well, why? Why? Why? Because we don’t own the rights to that. We don’t have licensing to use those images. And I think people have this tendency, Barbara, to think just because they can find it on the internet. Or if they type it into Google, and it shows up in an image bank, that they have the right to use that. I have clients who got sued over it, and it’s expensive. It’s like $7,500 a violation. And if you’re making money off of those, you have a responsibility then in a successful lawsuit against you to pay anything that you might have received as a result of that.
So, copyright infringement can be a huge, huge problem for you if you’re being dinged for that. So, I always make sure that if I’m hiring a marketing company, and they’re creating content for me, and they are going to pick your stock source for materials, that they’re promising that they have the right to use it, that they’re not, that they’re not stealing it from somebody who’s later going to come back, that happened to me, I had, we call them copyright trolls. They’re lawyers out there who love to go around and find people who are infringing on other people’s trademarks. And they go around and they shake him down, they shake them down for, 10s of 1000s of dollars, because they know because they’re gonna come to you Barbara, they’re gonna go, hey, Barbara, I went on your website, and you have this image from my client, it’s of a plant. This is based on a true story, but the names have been changed to protect the innocent. You have this plant on your website, and my client took a picture of that plant, that picture is copyrighted, you owe us for this.
And we had to literally, they’re like, so they walk through and they go, here’s, you know, it’s been up on your website from our math 18 months. So that could be one infringement 7500 bucks, it could be multiple infringements, depending on how it is operated. It was also to promote a product that my client was selling. So, then there was revenue generated as a result of that image. And so, you add all these up, and these lawyers are very creative in the way that they you know, Max everything out, and they say, hey, if we have to sue you, we’re coming after you for $350,000. And you’re going you look at your clinic goes; I can’t afford this $350,000 What should I do? We write back and we say, Yep, here we go. What do you want? They go, Yeah, well, we would be happy to settle this for $7,500. You go to your client, you go pay this $7,500 buck, like what are you talking about? They have a claim, you didn’t do what you’re supposed to do. And by the way, that $7,500 is a fraction of what you’re going to pay me to litigate this for you. So now you decide what the business and these lawyers coming in there, they will file hundreds of these. And if they’re getting $7,500 bucks per pop on each of these, and they’re filing 100 of them a year, do the math that’s 750k of like, low hanging fruit in legal fees that you can get on these things. And they do that.
So, you know, in the case, I had somebody reached out to me for a picture I had up on my website. Now I’m smart enough because I know that I go to a stock service and I am licensed for those images. And so, they tried to shake me down. I said, I’m sorry, but I have a licensing for this. They’re like, well, we need you to prove it. My great. Here you go. So, I went through the process with Adobe. I am not a paid advertiser of Adobe. I use Adobe and I love it and their stock services are awesome. I get no kickback from this see FTC now rolling back around. But we’ve got now I had to prove to them like, here you go. Here’s the licensing and everything. They’re like, Great, thank you. We appreciate it. Have a good day. And they were gone. That was it just proved it. And I think that becomes I think the most dangerous atmosphere for doctors to be playing in when they’re not using their own original content. And then when they want to create their own content, they need to make sure that they retain ownership in that content. And after the photographer, the videographer, the blog writer, the content creator, has produced it, I think those are the biggest pieces of it.
Beware of Using Royalty-Free Images
Dr. Barbara Hales: I think that’s so true. And, in speaking about that, I just want to point out to the listeners that when you see that an image is royalty-free, sometimes it can be royalty-free for personal use and not commercial use.
Andrew Contiguglia: Absolutely.
Dr. Barbara Hales: They are all different ways that something is royalty-free, and you have to make sure that you’re getting it for the purpose that you are using it.
Andrew Contiguglia: Absolutely. And I think that that’s a really good distinction. Also, if I am putting up, you know, a video that I created on YouTube, for my own personal use, I can use YouTube’s you know, laundry list of songs and you know, sound bites and things like that, that they have available to me as a creator. However, if I’m creating things for Barbara hills, and Barbara Hills marketing world, I may not be the license may not allow me to use the license from YouTube that I created for you. It would be your license that you would have to go get independently for me.
Not only that, but I see people, you know, marketing companies using the same image in more than one publication. I think that creates a problem. I think, depending on the license that could create a licensing violation that you know, the creator that content could come after you for. And I think you think that anybody who is using a company needs to make sure that they are indemnified, meaning that in the event, I’m sued, and I have to pay something out that I can get paid back by you for violating the law that I got blamed for. I think those indemnification provisions are important in every one of those contracts. So, we want to make sure that the doctors are protected in that respect, as they build that out.
Proper Structuring For Contract Agreements
Dr. Barbara Hales: Absolutely. Tell me how does one structure agreements to ensure clarity on deliverables? Which is something that we’re we’ve been talking about, as well as confidentiality and dispute resolution?
Andrew Contiguglia: Absolutely, I think those are. That’s great. And getting back to the marketing company that I represent our legal marketing company; we have been working on their master services agreement for months now. And it has gone through a number of different variations. And I think the perspective of the information I’m about to give really depends on whether I’m representing you as the marketer and the creator versus the doctor who’s entering into the agreement. It is my belief that, Barbara, if you’re providing a marketing service to Me, you should be providing the contract to me for my review, and that you should stand fast on the terms that you want, hey, if you want to Barbara hills, to do your creative marketing and do your content marketing, you got to agree to my terms. Hey, when people hire me, they have to agree to my terms. I’m sure every one of these doctors that listens to this podcast, every patient that comes in through the door has to agree to do things the way the doctor says. That’s just the world we live in. I think it would be different if I’m providing you Well, yeah, Barbara here, I’ll provide you my marketing contract. And then you’ve got to agree to my terms. That doesn’t always work out that way.
So, I think, you know, I have seen horrible marketing contracts. I’ve seen ones that last forever, I see ones that you can’t terminate. And I will say these bad contracts are still binding. And without somebody going through your agreement with you, like I don’t mind if you enter into a bad agreement, Barbara, but let’s sit down and let me go through it with you. So, you know what you’re getting yourself into. And at least we can discuss your though any way that you might be able to get out of this contract under, under what circumstances because I you know, you see these things where marketers hold websites hostage, they hold branding hostage, they hold images that they create hostage, all of these things, and you want to make sure like, Listen, you want to agree to this stuff, great. But understand what you’re getting yourself into. And I think we’re explaining it and walking through it with somebody who has the background in it, I think is going to be imperative and really helpful in the way that you look at hiring a marketing company. So, I think that’s the first thing.
What other terms should be in there? I think you need a term like how are you going to get out of this? I think every contract should have a form of termination. Because, Barbara, I love you. You’re great, but I might not want to work with you forever. There might be somebody else that I want to go work with, or here’s something that happens a lot and I’ve run into this, representing other marketing companies that have gone out and purchase bought smaller marketing agencies in order to grow their companies. I’ve seen it where, you know, company A says we’re gonna go acquire company Z, and they go and they acquire company Z. And all the people who are working with companies Z hate Company A. And so, somebody comes in Barbara, I have a contract with you Company A comes in and buys your company. I mean, I like working with those people. No, I am a true bar believer. I’m working with Barbara and nobody else. How dare you do that. Now, of course, from a customer service standpoint, hope you would talk to me about it before selling it. But it doesn’t always work that way, especially in the marketing industry, when you see transition after transition after transition, where you want to retire, and your associate is now running your company. So, we want to see those things. But I may not want to be around for that long. And I might want to get out. So, termination clauses.
Dr. Barbara Hales: But an interesting thought, though, because if a contract is with a certain company, then is it you know, if the company changes, or the people that signed the contract change? Doesn’t that, in and of itself, make it less legally binding,
Andrew Contiguglia: It doesn’t change the legally binding nature of the agreement. So, let’s it really depends on the nature of the contract, and the nature of the acquisition that happened. So let me walk through a situation with you. So, let’s say you want to buy marketing, company B. And your part of what you’re buying are all the contracts that marketing company B has. So, you’re buying Marketing Company B, you know, you work in Florida and East Coast marketing, company B is all California doctors, you’re like what a great market for me to get into, I’m going to buy this agency up. Perfect.
Now one of the things that you need to look into when buying that other company is, are you buying just the assets of that company? Or are you also buying the stock of that company, because if you’re buying the stock of the company, nothing underneath that company changes because you’re buying the ownership interest in the company. However, when you’re buying just the assets of the company, its customers, its intellectual property, its products, its, you know, know-how and other foundational requirements, that may not be it. So, when you’re buying somebody’s contracts, you need to make sure that the contract you’re buying can be transferred to you. So, we call that assignability. So is the contract assignable. If the contract is assignable, you don’t have an issue with it, because the owner is just going to transfer it to you, they’re going to assign it, we do that through what’s called an assignment and assumption agreement. And any contract, any cut, let me rephrase that any contract is transferable unless the contract prohibits transfer.
So, what that means is I can contract I can transfer any contract I have to you so long as the contract doesn’t prohibit me from doing so. But you’ll see that many lawyers are smart. might not think that but we are sometimes and we put in these non-assignability clauses for exactly this. Because we want to make sure that you can’t transfer your duties and your responsibilities to somebody else. And as a result of that, we want to make sure that we have an anti-assignment provision in there.
So now Barbara, if we’re gonna go buy all these contracts, guess what I have to do? I have to go to every one of those customers. And I have to say, hey, Barbara is buying companies a, she would love to continue to work with you let’s meet, will you agree to have her take over your contract? And most of the time, they’re like, Yeah, that sounds great. I don’t care. I just want marketing services. But sometimes you may say, no, we’re not going to do that. And so, you know, I’ve seen people get, you know, not pay enough attention to that.
And get dinged by that later on where the clients like, yeah, and now, you know, you went out and you bought, I mean, imagine this, you buy this company out in California, they have 1000 customers that they’re dealing with, and you’re thinking to yourself, I’m buying all I’m buying 1000 $100,000 contracts, because each one of these contracts is $100,000 deal for me. And every one of these now is like Yeah, guess what? No, we don’t agree to the assignment. And we’re out and you’ve just now paid all of this money for a marketing company that now you can’t use those contracts. I’m gonna make it even worse. I represented. It’s funny. I represented somebody and this was actually in the medical area.
He was a locum tenens guy and he was buying up other local companies around the country and the different companies that he was talking about, I was giving you Yeah, I’m you know, as I was saying earlier, you know, I represented a company that was going out and buying other locum tenens companies and one of the companies that he was purchasing had a number of different locum contracts in varying states around the country.
And also, like in the Bahamas and Virgin Islands and things like that. And so, he’s, my client was buying all of these other contracts that this other locum’s company had. And so, I’m like, I will, let’s take a look at the contracts that you’re buying, because we need to know what we’re buying.
That’s the asset you’re buying is all those contracts with all those other doctors and he’s like, Alright, so we started getting copies of all the contracts, that there’s other that this other locum’s company was utilizing with all of its locums doctors. And every one of those contracts I kid you not, there was probably about 15, or 16 of them was different. Oh, my, some of them had mandatory arbitration. Some of them had venue in California, meaning that’s where you’re going to sue.
Some of them had, you know, Virgin Islands. law being applicable. Others had, you know, Delaware law being applicable, it was a mess. Some of the contracts allowed for assignment, some of the contracts did not allow for assignment. And so, we were in this difficult position. I’m like, advising my clients, like, do you really want to do this? I’m like, this is not, I don’t think this is worth it.
This is going to create more headaches for you later on down the line. And ultimately, my clients like, yeah, you’re right, I don’t want to do this, this is not worth it to me. So, we end up backing out of the deal. But that’s part of you know, what we do in due diligence when it comes to buying other companies, which, you know, it’s not a marketing issue for doctors, but I’ve represented a ton of doctors and selling their businesses and buying other businesses, I think it’s a great way to, you know, when you’re coming out of med school, and your residency and fellowship and all and you’re looking to jump into, you know, building a company, there you go. And that was my dad’s exit plan, he sold his nephrology practice and his dialysis unit to a very large health one company, and retired very happily from that.
Book Promotion
Dr. Barbara Hales: That’s great. Let’s shift our conversation a little bit to your book, which has a very catchy title. If I were to buy your book, what kinds of things would I find in it?
Andrew Contiguglia: Oh, it’s a guide book so there’s nothing real fancy about it. And it really walks you through how to start and set up your business for success. Or if you are current business owner, the book has in it like things that you could think about whether you should be hiring employees or what or your workers should be classified as employees or independent contractors, walking you through some of those legal issues.
So, the way it’s designed, it literally is from Hey, what choice of entity should I be LLC, corporation, partnership, you pick it all the way to the end of that journey of selling your business. There have been some changes in the law. That is going to go into my next addition here shortly.
With beneficial ownership interests. In companies you’ve probably heard about that you have now the financial crime Enforcement Network(FINCEN), requiring owners of businesses must register with FINCEN anybody who has a beneficial ownership interest in their company, meaning if they own 20% or more in a company, you have an obligation to put FinCEN on notice of your ownership interest in that company.
Now, businesses that were in existence prior to January 1 2024, have until December 31 2024 to get this done. Businesses that were created after January 1 2024, have to get that done within 90 days of registering their business with their local Secretary of State’s office. So that’s a big one.
The next big one is the Federal Trade Commission coming out and outlying non-compete agreements pretty much across the board with very few exceptions. The one of the exceptions being if I have a partner in my business, and I buy you out, Barbara, I can put a non-compete on you to not compete because you’re at the ownership or high-level managerial level, but your typical employees, you can’t, people who lower-level managers, you’re not allowed to put non-compete.
So, if you had a sales rep working for you, who was awesome, and you fire, you can’t prevent that person from going across the street to an accountability as marketing agency and competing against Barbara Hills marketing agencies can’t do that anymore. So, this whole prohibition on non-competes I think is really important. so, it doesn’t prohibit people from putting nonsolicitation agreements in place so you can’t call my clients you can’t work with my clients, you can’t call my employees that kind of thing that you can still be protected.
So those two big changes I think within the last year or so have really come down and it just becomes one more box we have to check as we start helping people with the startup of their businesses or running an operating their companies down the line. And also making sure that those things have been done when they look to succeed from their business whether it’s selling it or transferring it to another person.
Dr. Barbara Hales: Well, I assume that we could buy your book on Amazon.
Andrew Contiguglia: That’s right. You can find it on Amazon. Yep.
Dr. Barbara Hales: Is it available in the audio file as well?
Andrew Contiguglia: Not yet. That is something I’m in the works but you can it’s on Kindle I think you can even maybe Kindle read it your computer might read it to you might be boring. You don’t get this much entertainment with a computer. But you can buy it you can buy it in hardback or sorry paperback and on Kindle. Also, if you go to Dontskipthelegal.com, you can find you can get access to my podcast, which is the Don’t skip the legal podcast. See how we’re working on the trademarking in the branding. That’s how this all fits it. You’ll see my logos which would be copyrighted. Also, you can check out any of the videos that I’ve done on YouTube I put a lot of those out too over the years and been working on that so that’s where you can find me and if you want to find me on any of the socials, it you can find me @AJCEsq. So, @AJCEsq so find me at Twitter, Instagram. Pick it, I’ll be there.
Dr. Barbara Hales: Okay, so we’re going to give our listeners two tips that you can implement right away.
Andrew Contiguglia: All right.
Last Pieces of Advice
Dr. Barbara Hales: What two tips would you like to leave them with?
Andrew Contiguglia: That’s a great question. I think the first tip would be to pull your contracts and review them. Because what I have found is, many of these individuals sign these contracts, they don’t know what they mean, or now that they’ve here we are, we’ve been chatting for about an hour or so. Now they have all this new insight and knowledge as to how to approach and view some of these things. But I think that they should look at the contracts now with this new light, and sort of critically evaluate whether these are the right deals for them to be in. That would be the very first thing.
The second thing would be, I would make sure that you have ownership of every image that you have on your website that you use in your marketing protocol. I would do as much as you can to steer away from using any of the stores, or your stock photos and things like that. And I would create all original content. So, hire somebody, make sure you retain the ownership interest and create all new content. From the beginning. It sounds like it’s an ordeal but break down into time. Over time, you’ll get it done pretty quickly.
Dr. Barbara Hales: Well, I think that the thought that would go through every listener’s mind after listening to this podcast is I need a lawyer.
Andrew Contiguglia: What’s funny, you should say it’s actually the very first chapter in my book is why you need a lawyer as part of your business team. I mean, everybody has, everybody has an accountant, right? Like you need you need a lawyer like a PC like your primary care doctor, right? You don’t go to the doctor after you have a heart attack, you go to the doctor so you don’t get a heart attack. That’s why you come to me, come to your lawyer first so you don’t have a heart attack. That’s really what it comes down to.
Dr. Barbara Hales: Well, I think that you have really encouraged us all to run out and give you a call.
Andrew Contiguglia: That’d be great. I’d love to work with people.
Dr. Barbara Hales: Thank you so much for being on the show today, listening to another episode of marketing tips for doctors, till next time.
Andrew Contiguglia: Excellent. Thanks, Barb.
