CPEU Article: Protect Your

Protect Your Practice: Understanding Contracts, Copyright and Disclaimers

KAREN A� MILLS

JD, RDN, LD

Congratulations! You have taken that bold step and ventured out on your own� It is hard work to create a practice that reflects who you are as a dietitian, so it is important to protect that investment of time and energy� Protecting your practice means understanding the contracts you enter into and using copyright and disclaimers when appropriate� This article will translate the components of contracts and discuss scenarios in which contracts should be used� It will also explain what copyright and disclaimer protections are, and how and when to use them to protect your dietetic business�

CONTRACTS

A contract is an agreement among two or more parties that itemizes what each party has agreed to do and describes what happens when they don’t� 1 Seems simple and straightforward, doesn’t it? Contracts can be simple or very complicated depending on the nature of the relationship and the risk the relationship exposes you to�

There are some essential steps when considering whether to enter into a contract� Most importantly, read the contract� All of it� By signing a contract, you are agreeing to do everything that the contract states, so it is vital that you are aware of and understand what you have promised to do� An attorney can help decipher the legal language, but do not rely on your attorney to understand dietetic lingo, as that is your specialty, not theirs� Your attorney probably doesn’t understand the difference between MNT and health coaching and the insurance reimbursement implications of each�

Next, contracts should be written, not verbal� Never assume that someone will do something if it is not expressly written into the contract� Perhaps a company has verbally promised to pay you 30 days after invoice submission� If the contract does not exactly state that, the company has no obligation to pay you within that time frame and you have no way to force payment� The more precise you are in your contract wording, the less room for a misunderstanding� If you aren’t sure what a particular contract clause means, and your attorney cannot clarify it, change the language of that clause� Contracts manage expectations� So, if you expect a party to do something, do not assume they will� Get it in clear writing!

Contracts can contain many components, some of which are fairly straightforward, others much more complex� There are a few clauses that, if they appear in a contract, you should make certain you fully understand before you agree to them� Note that some of the clauses discussed below can also appear as separate, stand-alone contracts�

Some contracts contain an indemnity or hold-harmless clause� This clause is usually activated when you do something wrong - when you don’t follow the terms of the contract or when you do follow the terms but do so in a negligent manner� Under this clause, when you do something wrong, and the other party incurs expenses because of this, you must reimburse the other party�2 As long as you are following the contract terms with care, this clause is not likely to be triggered�

Be aware of non-compete clauses� A non-compete clause usually appears in one of two ways - prohibiting similar services or prohibiting contact with clients or patients after the contract ends� Non-compete clauses can cover the contract term and often continue after the contract ends� For example, a contract to provide bariatric counseling services may have a clause stating that you cannot provide any bariatric counseling services on behalf of yourself or any other company during the contract term or after the contract ends for a period of one year� This means that you can provide other dietetic services, just not bariatric counseling during and after the contract�

Sometimes non-compete clauses state you cannot contact or provide services to any clients or patients of the company that hired you after the contract ends� This means that you are free to provide services to anyone else, just not a person who was a client or patient of the company at the time your contract ends� This type of non-compete clause is sometimes called non-solicitation� In either event, signing a contract containing a non-compete or non-solicitation clause requires some serious thought as it will limit your future business�

Confidentiality clauses are another type of clause to be aware of� Confidentiality provisions can extend beyond HIPAA and include requirements that you keep businessrelated types of information confidential� Confidential information could include client lists, client acquisition processes, company proprietary programs or software, trade secrets, or intellectual property� This sort of clause often extends beyond the contract term as well� Be aware of what your contract considers confidential information because you could be held liable if you disclose that information to third parties�

Contract clauses regarding intellectual property may also be important� If you hire someone or are hired to write something, develop a program, create a video or something similar, include language that discusses who owns and may copyright, use or profit from that work once created� See the section on copyright below for more discussion on this topic�

So, when do you need a contract? Really you should have a contract every time you or your business enters into a relationship with another person or company� Do you have business partners, consultants, service providers, vendors or employees? Do you rent space? Do you sell things, create content for others or provide

services? Are you an independent contractor? Do you hire accountants, lawyers, web designers or marketers? All of these business relationships are best defined by contracts, as contracts say who does what, how and when, and describe what happens when someone drops the ball�

Protecting Your Practice Pro Tips

y Always read contracts y Never assume! Get it in writing� y Business relationship do better with contracts� y Protect your creative works with copyrights y Protect your business with disclaimers y Hire an attorney

COPYRIGHT

Copyright is a legal concept that grants exclusive rights protections to creators of written materials, art, videos, music and other artistic works� 3 These rights prevent others from copying, selling, distributing, or otherwise using or profiting from the copyrighted work without permission� 3 A copyright may be granted to an individual, more than one person or a legal entity (like a business)� Generally, copyright protections begin when you create a work and last for the author’s lifetime plus 70 years, at which time the copyrighted work becomes a part of the public domain and can be used without permission� 4

While it seems that you can copyright everything you create, there are a couple of notable exceptions� Although you might think of a website as “written material,” the website itself is not covered by copyright (it is covered by domain name registration)� However, any original writing, videos, artwork or other content posted on that website can be covered by copyright protections� 5 Recipes themselves cannot be copyrighted� In order to copyright a recipe, you must include “substantial literary expression in the form of an explanation or directions” with that recipe� 5 This explains the online trend of wordy stories and explanations interrupted with pictures or videos before you get to the actual recipe� Another way to copyright a recipe is to combine several recipes and publish them as a book� 5

There are two instances when you may create a work, but never own the copyright - these instances are called “works made for hire� ”3 If you work for a company and create a work in the course of your employment, that is considered work made for hire� 3 For example, if you are an employee of a hospital and you create a video class on the DASH diet as part of your job, the hospital can copyright the video, but you cannot� You can also enter into a contract to create a work made for hire� 3 A publisher might enter into a contract with you as a freelance writer to write a DASH cookbook� Perhaps the publisher pays you a lump sum for your writing, but the publisher keeps the rights to and any sale profits from the cookbook� In both cases, ownership of the copyright belongs to the person or business that hired you�

As the creator of a work, you can also sell or transfer your copyright to another party by entering a contract to do so� 3 Once you transfer your copyright, you no longer have control over what happens to your work, and you do not receive any profit from the use of your work unless otherwise provided for in a contract� Obtaining copyright is a fairly straightforward process� You may place a notice of copyright on your original works� 3 This notice must include in a noticeable way the word “Copyright,” its abbreviation “Copr�,” or its symbol ©, the year of first publication and the name of the work’s owner� 3 For example, “©2020 Mary Smith�” Copyright notice is not required to claim some copyright benefits; however, it does place others on notice that you claim copyright on your work� 3 Consider placing one on any work you create, even if you choose not to register it�

You can take copyright protection an additional step by registering your copyright with the Copyright Office� By registering with the Copyright Office, your claim is public� 3 Although registering is not required, it is necessary if you want to sue someone to enforce your copyright� 3 Registering a copyright is simply a matter of submitting an application to the Copyright Office along with a small fee and a copy of the work being registered� 3 You do not need to publish your work to obtain the copyright protection you get from registration� However, if you do publish your copyrighted work, you are required to provide the Copyright Office with two complete copies of your work within three months of publication� 3 See copyright�gov for forms and fee schedules�

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DISCLAIMER

A disclaimer is a statement warning people who read your content or purchase your products that you are not responsible for what might happen if someone follows your advice� 6 Disclaimers can stand alone or be part of terms of service, terms of use, or terms and conditions� 7

But don’t you want people to take your advice? As a dietitian, you are a part of the medical community� When you treat a patient, you tailor your advice and intervention to that specific individual� A blog post, for example, is information that will (hopefully!) be inspiration for many to change their behaviors� But since you don’t screen every reader of your blog to be certain that your post is appropriate to every reader’s specific health needs, someone may inappropriately follow your advice� Supplement or other product sales, blog posts, website content, books, magazine articles, meal plans, handouts, and videos that you post or publish under your dietetic umbrella all have the potential of being seen as specific professional advice� 8 If someone takes that advice or purchases a product and suffers harm, you might be liable for that harm� Clear disclaimer language can help protect you in the event you are sued� 8

Just like a dietetic intervention, there is not a one-size-fits-all answer for what should be contained within a disclaimer� If you sell products or supplements on your website, your disclaimer may be very different from someone who only blogs about diet trends� Disclaimers should be relevant to your specific practice� Common disclaimer language includes declaring that any information provided is for educational purposes only; stating that the information should not be construed as professional advice, diagnosis or treatment; and recommending that the reader consult with and follow the guidance of their own healthcare team�8 Disclaimers can also include notice that content or pricing might change without warning� It is important to consult with an attorney to help you craft a disclaimer that fits your practice�

How to Find A Lawyer

y Best method - ask friends, family, colleagues, and your accountant for recommendations� y sba�gov Local Small Business

Association offices may have lists of llocal attorneys� The

SBA also has links for womenowned business help� y americanbar�org in the Legal

Services Group you can find lawyer directories

CONCLUSION

When used appropriately, contracts, copyrights and disclaimers can shield you and your practice from liability� In order to ensure your practice is protected, it is best to engage an attorney� The initial attorney costs can save you money and heartache down the road� Interview a few lawyers before hiring one and always get a cost estimate in writing before letting an attorney start work�

DISCLAIMER: This article is for general information purposes only� The author is not a practicing attorney, and none of the foregoing should be construed as legal advice or counsel� Readers of this article should not act or refrain from acting on the basis of information provided within this article without first consulting an attorney�

REFERENCES:

1 Legal Dictionary� Contract law�

Available at: https://legaldictionary� net/contract-law/ � Accessed on December 18, 2020� 2 Nolo� Indemnification provisions in contracts� Available at: https://www�nolo�com/legalencyclopedia/indemnificationprovisions-contracts�html �

Accessed on December 18, 2020� 3 U�S� Copyright Office� Copyright

Basics: Circular 1� Washington,

DC: U�S� Copyright Office; 2019� 4 U�S� Copyright Office� Chapter 3:

Duration of copyright� Available at: https://www�copyright�gov/ title17/92chap3�html � Accessed on December 18, 2020� 5 U�S� Copyright Office� Frequently asked questions about copyright�

Available at: https://www� copyright�gov/help/faq/index�html � Accessed on December 18, 2020� 6 Cambridge Dictionary� Disclaimer�

Available at: https://dictionary� cambridge�org/us/dictionary/ english/disclaimer � Accessed on December 18, 2020� 7 Helm J� & Jones R�M� Practice paper of the Academy of Nutrition and Dietetics: Social media and the dietetics practitioner:

Opportunities, challenges, and best practices� J Acad Nutr Diet�

November 2016; 116:1825-1835� 8 Fox M� Legal risks of social media:

What dietetics practitioners need to know� J Acad Nutr Diet�

November, 2012; 112:1718-1723�

To obtain CPEU credit, go to the CPE Library at nedpg�org� The Newsletter Courses area will house the CPEU article and quiz�

Karen A� Mills, JD, RDN, LD, is the owner of

TheHealthyCulture� com� She is a former attorney who traded contract negotiation for nutrition counseling� Currently, she writes, speaks, and assists clients in developing their own Healthy Culture - a personalized nutrition, health and wellness plan that considers time constraints, family traditions, culture, health concerns and budget� When not eating her way around the world, Karen is hard at work at her home office in Oregon�