We currently live in the golden age for authors, bloggers, and creatives where you can literally do ANYTHING you want without waiting for the gatekeeper’s (ie. the big publishing houses, the movie studios, the music labels, the magazines) to “green light” your book/movie/music/articles BUT this means YOU must be responsible for all aspects of your creative endeavors—including business and legal–because no one else is going to do it for you. You absolutely must get smart on what you need to do as a creative business owner or you will run into issues. It’s not a matter of “IF,” it’s a matter of “WHEN”!
One of the most important places to start getting your creative business legit is by protecting your website, and one policy every creator website should have is a Terms of Use agreement. It doesn’t matter whether you’re currently making money from your website or if this is just a “hobby” blog. There are a number of reasons why a Terms of Use agreement is essential for all websites.
We currently live in the golden age for authors, bloggers, and creatives where you can literally do ANYTHING you want without waiting for the gatekeeper’s (ie. the big publishing houses, the movie studios, the music labels, the magazines) to “green light” your book/movie/music/articles BUT this means YOU must be responsible for all aspects of your creative endeavors—including business and legal–because no one else is going to do it for you. You absolutely must get smart on what you need to do as a creative business owner or you will run into issues. It’s not a matter of “IF,” it’s a matter of “WHEN”!
One of the most important places to start getting your creative business legit is by protecting your website, and one policy every creator website should have is a Terms of Use agreement. It doesn’t matter whether you’re currently making money from your website or if this is just a “hobby” blog. There are a number of reasons why a Terms of Use agreement is essential for all websites.
First off, a Terms of Use agreement is essential to protect your intellectual property.
Under the current 1976 Copyright Act and its amendments, the “notice” formality to obtain federal copyright protection is no longer required. Notice is a way of letting others know that your work has been copyrighted and cannot be used without your permission. However, while notice is no longer required, it is still a good idea in order to stop what’s called an “innocent infringer.” That means someone who takes your work and uses it simply because they don’t know that it was copyrighted. A Terms of Use agreement on your website will not only help combat this “innocent infringer” defense in a lawsuit but, more importantly, it will detail the way in which your work can be used and cannot be used by anyone who visits your website. This means you get to clearly define for your visitors (and customers if you are selling services or a product like books, courses, etc.), how they can use the photos, blog posts, and anything else on your website. It also protects against infringement.
For example, a Terms of Use agreement will often have a provision called “Proprietary Rights” that informs visitors of the fact that you are the owner of the website and you own all exclusive rights to title and interest to everything on the website including audio, photographs, illustrations, graphics, etc. Another popular provision in a Terms of Use agreement is a “Limited License,” which informs visitors that they are allowed to look at your website but they are not allowed to make any copies or prints for commercial use. Terms of Use agreements also often contain a “Prohibited Use” provision that details all the ways that someone cannot use what’s on your website without your express prior written permission.
Second, a Terms of Use agreement tells your visitors (and customers) the rules of your website.
Outside of telling your visitors (and customers) how your intellectual property may be used, a Terms of Use agreement is like a “how to” guide for the use of your website, instructing on the rules of using your website and your services and products. It also forms a legal binding contract between you and your visitors (and customers) and can later be used to enforce your rights and settle legal disputes. If you are selling something like books, photographs, or an online course and don’t allow refunds, you can notify your customers of this no refund policy in your Terms of Use agreement. Not only does this help put them on notice up front (which can immensely help to curb refund requests), but your Terms of Use agreement can then be used as proof of your policy and your customers agreement to the policy in any subsequent disputes with payment providers or even in court.
Additionally, your Terms of Use agreement can help explain and govern community standards ensuring that your website is a safe place for your visitors. One way you can do this utilizing a Terms of Use agreement is to include a provision regarding “User Content.” In this provision, you can tell your visitors what they can and cannot post to your website and what actions will get them banned. For example, if you run a book club on your website you may include in your “User Content” paragraph that anyone who uploads copyrighted photos of books or excerpts of books to your website will have their content removed.
But wait. There are even more reasons to have a Terms of Use agreement.
Some other added benefits of a Terms of Use agreement is the way it may help limit liability and also make resolution of disputes easier for you by giving you the opportunity to (1) choose arbitration over litigation (which can be important for business owners to keep disputes confidential and private), (2) pick which state’s laws will govern any disputes through what’s called a “Choice of Law” provision, and (3) ensure that disputes will be litigated in a location of your choosing—which can be a game changer if your website attracts visitors and customers in cities and states outside where you do business.
Now that you know how important a Terms of Use agreement is to your creative business, your next action step is to add one to your website and to place it in a noticeable location like your homepage footer menu. Because Terms of Use agreements can be tricky—and the repercussions for getting them wrong can be high—you’ll want to get yours from a trusted source. The good news is that you have options.
You can try and draft your own Terms of Use agreement from scratch or try and cobble something together using the free guides floating around on the Internet, although I don’t recommend this for people who don’t have a legal background. Trying to do this yourself if you don’t have legal experience can be daunting and overwhelming, and you’re likely to leave out some important provisions your business needs. A great option is to hire an attorney to draft a Terms of Use agreement for you from scratch. However, this can be quite costly and you may not want to do this at the beginning stages of your business (as it might be overkill if you are just starting out). If you’re looking for an affordable and dependable option, I’ve got a great Terms of Use agreement template that is completely customizable with all the bells and whistles and comes with a step-by-step video tutorial that walks you through the entire process so you can have your own Terms of Use agreement up on your website within minutes. You can find it here:
For more business tips for writers, bloggers, and creatives, make sure to check out my post on Querying Tips and Publishing Advice. Do you have a Terms of Use agreement on your website or blog? Let me know in the comments below!
Disclaimer: Although I am a lawyer by profession, I am not YOUR lawyer. This article is for informational and educational purposes only, does not constitute legal advice and does not establish any kind of attorney-client relationship with me. I am not liable or responsible for any damages resulting from or related to your use of this information.
Joshua Bruce
January 30, 2022<3 Great article!