Finally, we wrap up our first accidental series (surely, there will be more) on restrictive covenants.

As a quick reminder, a restrictive covenant is a condition that restricts, limits, prohibits, or prevents the actions of someone named in an enforceable agreement.

Previously, we covered:

Non-Disclosure which prohibits you from (i) disclosing your client's confidential information to third parties, or (ii) using your client's confidential information for any purpose other than providing services to the client. Find the discussion here.

Non-Compete which prohibits you from providing services (i) to competitors of your client, or (ii) that compete with your client. Find the discussion here.

I did not start July with the plan to make it Restrictive Covenants Month! But here we are.

A restrictive covenant is a condition that restricts, limits, prohibits, or prevents the actions of someone named in an enforceable agreement.

When talking about our expertise-based businesses, the restrictive covenants we worry about are (cue spooky font):

Love ‘em or hate ‘em, confidentiality agreements aka non-disclosure agreements aka NDAs are everywhere.

These days, NDAs are the entrance ticket to almost every 2-party interaction. Every pitch meeting. Every RFP. Every hire. Pull out the NDA.

They are important and necessary…sometimes. But do you know what is even better than an NDA? Discernment.

Every time you share confidential information it becomes a little less confidential.

Fair Use. These two little words are vexing.

Here is the most important thing that you need to know about fair use: It is a defense. A defense against a claim of copyright infringement.

It is not a right you can get ahead of time to use the IP, like you get from a license agreement. It is not standardized permission to use IP like you get with a Creative Commons license. It is not a free pass to use IP, such as use of materials that are in the public domain.

How do you know whether your use of someone else’s IP without their permission is fair use? The only way to get a definitive answer is to have it resolved in federal court. Every analysis of whether a use is a fair use is fact specific.

I recently stumbled upon Portia Nelson’s poem, “Autobiography in Five Short Chapters” [please scroll down to read the poem]. Turns out it is among the most popular self-help writings of all time and the backbone of twelve-step programs used by various self-help groups and psychotherapists.

Perhaps I’d never come across it before because I’ve never been in a recovery program, but it smacked me right between the eyes when I read it because I have certainly been stuck in self-defeating cycles.

You know I have to jump in after I hear something a few times in a short period. In the last few days, it was: Should I do creative commons instead of copyright?

Huh? Well, if everyone can get legal advice online, I figure I can too. So I Googled “creative commons vs. copyright,” and a ton of resources pop up that suggest that creative commons is on a continuum between copyright and public domain, such as this

Have you ever had an idea, it seemed brilliant (at the time), you dashed it out in a burst of manic energy, and then…it got lost in the pile of ideas?

If yes, then we have something in common. Kolbe calls us “quick starts”. I know, weird for a lawyer, but before you start wondering, I am just slightly more quick start than fact finder. (For the Kolbe nerds out there, I’m a 5-5-6-4.)

The Antiques Roadshow was a favorite of my mother’s but I have not watched it since she went to the great récamier in the sky. 🥲 So I was pleasantly surprised when the show made a rare appearance in my news feed—the appraisal of a letter written by Frank Sinatra almost made the surprised owner faint.

I am happy to report that my webinar for the Institute for Management Consultants about licensing your expertise (slideshow is available here) has generated quite a bit of interest.

My engagements are all custom—except for legal due diligence. All of my engagements start with making sure the client’s legal foundation is free of cracks before we start building on it.