VOGSY is fortunate to interact with leaders and influencers involved in a range of professional services organizations (PSOs). The PSO Knowledge Expert Series brings you their thoughts on the topics that matter most.
For this edition, we spoke with Gabriel Levine, Attorney and Principal at Matchstick Legal. Gabe prides himself on providing practical and efficient counsel to leading agencies, studios and professionals across creative and technical disciplines. His firm supports PSOs on numerous matters, including guidance on development and design contracts.
MVL: You bill yourselves as lawyers for creative businesses. How did you come to serve the digital and creative space?
GL: We work with digital agencies, graphic designers, industrial product creators, marketing firms and others.
I personally was introduced to this client vertical by Mike Monteiro and Erika Hall, who were my first clients not long after I graduated law school, and I formed their company. Mike and Erika connected me with others in the design industry and one thing led to another, until I was sort of embedded in the community.
Things really blew up in 2011 when Mike did the “Fuck you, pay me” talk that I was a part of. (The video stands up today. It has viewed well over a million times.)
I continued this work as I was introduced to the Bureau of Digital community and then met my business partner, Josh Barrett. He also advised creative agencies, studios and freelancers through his own firm, CreateLegal. We merged in January 2019 to form Matchstick Legal.
MVL: How do creative businesses differ from other service-based companies? What are their specific needs for legal counsel?
GL: Small businesses that provide professional services and consulting work have similar legal needs. The work sometimes starts with the formation and or partnership documents, continues with contract development and can move into mergers and acquisitions (M&As) – all stages of the business lifecycle. We focus on the day-to-day business transactions and also regularly handle business creation and M&A work.
I think creative and technical entrepreneurs are unique because, while they often have unique talent and skill, they also tend to be less experienced businesspeople. Maybe these are some of the things that make them such good clients, because they generally are very easy to work with.
What makes Matchstick unique is that we have a lot of experience with the unique issues and concerns of the industry — of designing and developing platforms and creating content for online consumption.
MVL: You speak regularly within the industry, appear on podcasts, videos and webinars, as well as publish articles. Why is education so important to you?
GL: We all really enjoy teaching and work hard to present ourselves as trusted advisors. We want to help set industry standards when it comes to legal work in this space. If the client doesn’t have trust in our abilities or has a limited understanding of the services we provide, then we’re limited in how much we can help.
And this work helps us do our job better.
We take pride in making our writing understandable to the layperson, so they can learn about our services and have better insight into the nuances of their unique situation.
I can teach someone what indemnity provisions and limitations of liability mean, and why termination rights are so important, and what are the triggers to being paid. Once they understand all of that, they can tell us what’s really important to them, and better help us negotiate and craft their contracts and resolve any potential client disputes.
An educated client is much easier to help. We don’t want to make decisions for our clients about what is or isn’t important to them. We want them to be as informed as possible. When I know what’s important to my client, I can then help them reach their goals.
MVL: What are the main areas with which you help digital firm owners?
GL: The most common questions are about getting your house in order as a business. We help companies with partnership and shareholder arrangements, member operating agreements, trademarks and contracts. Mostly, agencies want to ensure they are protected and buttoned up. We love all of it. It’s a way for us to help our clients grow and achieve their goals.
MVL: What’s a top discussion you’re having with clients now?
GL: Privacy. The upcoming California Consumer Privacy Act (CCPA) is definitely a concern and we’re starting to help people think about that with respect to client work. Professional service providers occupy a weird space that isn’t very well defined in that law. There isn’t enough clarity around their responsibilities in my view.
From a service provider perspective, if your clients are businesses subject to CCPA, they’ll likely be asking that you sign an addendum of sorts to address the privacy concerns. However, a lot of these companies are already doing this, and the new California law doesn’t add much, if anything, in the way of substantive requirements there. It does add a lot for these subject businesses in terms of their privacy policies, particularly if they have not made themselves compliant with GDPR. It’s a complicated subject that requires a lot of ad hoc negotiation, at least at present.
MVL: Another area we have discussed is accessibility. Can you share some insight on this topic, too?
GL: Certainly. There’s also been a lot of questions about accessibility and the Americans with Disabilities Act (ADA) compliance. If I had to bet, digital agencies that are creating websites are more likely to run into issues with accessibility versus privacy.
Most of these digital agencies aren’t handling large amounts of critical data, but almost all are building online presentations, sites, digital products and applications. And there are more ADA suits and plaintiffs out there focusing on the web. Right now, it’s important for an agency to be diligent from an ADA perspective and get its contract language right, and also talk to an insurance broker and make sure it is covered.
MVL: In early October, Domino’s lost against a Supreme Court ruling on web accessibility. What does this mean for digital commerce and online sites?
GL: That case was a longshot; essentially, Domino’s was asking the Supreme Court to rule that the ADA didn’t apply to the web. They lost, as most people expected.
MVL: What’s an accessibility provision an agency can’t agree to?
GL: “Your website will be ADA compliant.”
We have clients that are asked to make this promise. This ask shows a lack of understanding about the state of the law and the process, and it comes from a desire to attempt to shift the liability to the agency creating the work.
What we recommend to our clients doing this work is to ensure they have a well-worded contract with language that is worded properly.
Do not say you are going to build a site that’s ADA compliant.
Tell the customer what you can and cannot do, what tools you’ll use to run compliance checks, and what accessibility improvement options they have.
We wrote about this on our blog post: https://matchstick.legal/blog/the-agency-guide-to-web-accessibility
MVL: Creating and working through a contract is no easy feat. You standardized on a contract with the Bureau of Digital. Why did you feel this was important to do?
GL: We wanted to give something back to Carl and the Bureau that would be useful for the community. The pie-in-the-sky goal is that it actually becomes a standard. It doesn’t have to become the standard, but it could become a standard.
Right now, creative and technical professionals and agencies are being asked to sign “standard agreements” that are prepared by the clients. But clients don’t write the contracts for their home contractors, dentists, lawyers or vehicle repair shops. Everywhere else, standards are set by the people providing the services.
We want something that an agency can use, adapt and provide to a client with confidence, knowing there’s a standard set of terms that reasonably protects their interests.
Our goal was to create something useful for smaller agencies who may not be able to afford a lawyer on retainer. However, we do not advise using the document as is. A lawyer should review it. Our terms are certainly tilted to the favor of the digital agency, but not excessively so. They don’t let the digital agency off the hook for not doing their job.
MVL: What’s the number one mistake digital firms make on their client contracts?
GL: Having unclear payment and fee provisions.
From the beginning of my work in this industry and to this day, I see statements of work and proposals that are a mix of flat fee, hourly, estimate, retainer, you name it. You’d be amazed how many payment models can be packed into one statement of work or proposal.
The most important provision for your business is getting paid. That part of your contract needs to be written as simply and clearly as possible.
MVL: What’s one piece of legal wisdom you can share that all creative businesses should take to heart?
GL: Don’t overpromise.
The way I usually phrase it is: “Keep advertising language out of your contract documents.”
People oversell. I get it: We all have to make a buck, need to compete and win clients. There’s also a lot to be said for the truth. Honesty has always helped us win and retain business we want.
If you are committed to not overselling yourself and confident enough to say, “Choose us or not, we think we’re good,” then you don’t have to chase clients. They’ll be attracted to the truth you accurately convey.
MVL: How can people learn more about your services or connect with you online?
GL: The website. And the Bureau of Digital’s standard contract page.
