Thinking Long

It’s been a couple of weeks since I’ve posted, mostly because my personal life has recently taken a large chunk of my time. I have an elderly parent who is dealing with some significant medical issues plus I had to say goodbye to my longtime furball companion (and imaginary law partner) Benito T. Katz-Burns.

I bring up these personal things because they’ve made me think about impermanence, my practice, and serving my clients. Basically, it all made me think that the best thing I can do for my clients it to encourage them to think long.

Thinking long means looking long term and taking small steps that can have a big outcome. For example, compound interest is a cornerstone of thinking long: a little put away early in life can be a lot later.

As the saying goes, none of us gets out alive. What you do as a creative professional, however, will live beyond you. The assets you create, the copyrights, will pass on to your heirs after your demise and they may be much more valuable than you think. Thinking long means planing for them.

Actually, those assets may be much more valuable than you think now, too. Let me give an example…
Imagine a photographer who has a ton of copyrights, because this photographer has created a ton of photos[1]. One of these photos is being infringed often; by often, let’s say at least 100 times (so far). This photo isn’t the photographer’s best work (it’s a fine photo, but the photographer has much better ones); if you had to pick out from a pile of 1000 of this person’s photos which one would be the oft-infringed one, you’d probably guess wrong, like, 990+ times. Nonetheless, this one photo gets ripped off more often than bikini wax in Hollywood.

The photographer has registered the copyright to this photograph, so that means the minimum award for an infringement (assuming the defendant cannot prove innocent infringement, which is very hard to prove)[2] would be $750. This photographer has a history of licensing and can prove up damages of more than that, but for the sake of space and time, lets just assume that the photographer settles, over some time, 100 infringements for an average, each, after legal fees, of $1000.[3]

For those of you playing along at home, thats $100,000.
Not small beans!

Now, if this photographer suddenly died (heaven forbid!) before settling those cases, the photographer’s heir(s) would get ownership of that copyright and, assuming they pursued the infringements, get the money. And that’s just the cases that exist now–that photo will likely continued to be infringed.

In other words, you could be sitting on at least one good-but-not-great creative work that, in the long run, could pay for your kids college (or a big chunk of that); or help pay off your mortgage; or provide for your loved ones after you’re gone. And don’t forget,that math is for just that one photo (and its copyright)–any creative pro has easily thousands.

This is the time for thinking long. Do the small things now that will enable you to reap rewards, long into the future.

Thinking long is why I nag at you to register your copyrights–so that you have the right to statutory damages of no less than $750. Little numbers add up over time. It’s also why I keep bringing up having an estate plan. Your work is worth more than you might think and you don’t want that going to your fundy brother instead of your beloved non-spouse.

Thinking long is also a big part ofwhat I do and the way that I do it–so that creative professionals (you) can have legal representation in a cost-effective way.

Thinking long can makea big difference in your business and your life (and your loved ones’); give it some thought.


[1] While this hypothetical is based on a real client and photo, please remember that it is a hypothetical and that you should never rely on a hypothetical or any previous results when it comes to your own case(s).

[2] See, e.g., National Football League v. PrimeTime 24 Joint Venture, 131 F. Supp. 2d 458, 476 (SDNY 2001) (noting that a defendants burden to prove innocent infringement is a heavy one).

[3] Yes, this is not scientific but rather a very rough estimate based on a bunch of facts I’m not going to go into here. Also, some matters never settle, some settle for more and others less; I’m doing some whopping generalizations to make a point. In other words, just go with it.

How to Work With Your Lawyer: Trust

Creative professionals are usuallyvery smart people. Whether formally educated or not, your brains tend to fire pretty well (even if some people think they fire, um, differently). This is generally a good thing (especially the differently bit) and can definitely make for better art, no matter what your medium. The downside is that sometimes some of you think you know more than you really do*, especially abouta very technically precise field like the law. That attitude can bite you in the ass.

When I was in law school, I wrotea post on my Burns Auto Parts Super Premium Blog about how, before law school, I thought I knew copyright law pretty welland how wrong I was. See, I learned that while I knew more than the average person, what I knew was actually very, very little, especially compared to, say, a copyright lawyer. There is so much more to copyrightlaw (and law in general) than I ever could have imagined without having gone through all of law school. There is the interplay between the statutory scheme and constitutional issues, and how it works in day-to-day business, and how the courts interpret all of it, and more.Unless you immerse yourself for three years in intensive, undistractedstudy (hello,law school) and then get out there in the trenches, you just can’t know. I sure didn’t. Even after all that, you still have to do what I do: spend a ridiculous amount of time reading cases and highly technical academic articles to learn more, every day, just to keep up.

But I was one of you before law schoolone of those who even debated the woman who would become my mentor, Carolyn Wright, on legal questions that appeared in places like the old APA Forums. I look back on those debates with more than a little embarrassment. I thought I knew the law well enough to challenge her opinions when, really, I knew just enough to probably frustrate the hell out of her when she was trying to help by teaching the community the (actual) best practices (I will always appreciate her grace–not once did she later say “Do you remember…?”).

Now, after practicing for years, I know what itfeels like to be challenged by people who think they know more than they do. I have the headdesk-induced scars to prove it.

The most frustrating thing that happens in my practice isnt when the opposition pulls some chicanery or even when I get called names by defendants. Nope, the worst is when someone comes to me with a question which I answer based on my expertise (and often I do additional research to make sure my info on that particular issueis current), and then s/he doesnt like the answer, saying, Well, I feel that youre wrong.

First, you dontfeelthat Im wrong, youthinkI am (language matters!); and second, if you arent going to trust my opinion, then you shouldnt ask for it. Thats not me being petty, thats me knowing that I cant do the bestfor you unless you trust me when it comes to legal issues. My job is to fight for you and to have your back, but I cant do any of that if you dont trust that what I am telling you is the best, most accurate answer and advice based inthe law that I can give you. I’m not making stuff up or telling you what I think you want to hear–I’m being 100% straight with you. Im happy to talk to you and explain what I can, but in the end, you just have to trust me.

There are ethics rules that say we have to do what is best for you, sure, but I think most lawyers actively want to do what is best for our clients; that means telling you the truth, even the hard truth. None of us lawyers likes having to tell a (potential) client bad news. We know its unfair that a screwed-up copyright registration can scuttle an otherwise beautiful case and that the Copyright Office makes it damn easy to screw up (especially the published/unpublished thing). It sucksthat if we cant get you statutory damages (register, please) or documentthe value of yourlicenseis $10K we cant get $10K for you. It’s frustrating as hell that while any normal human can see your work has been knocked off, stylistically, proving its actually an infringement isn’t so clear and itwould cost gods own wallet to litigate and we could still lose, so we cant take the case on a contingency fee basis. And it’s not easy to tell you that you cant not do X now (without repercussions) because you agreed in your contract to do X.

Lawyerswant to be able to help people; thats why Ido what Ido (honestly, I think all good lawyers still hold that as their first principle). We look for ways to sayyesto whatever it is that you want, to enable you to achieve your goal, to fix the wrongs, promote the good, and to defend your rights, but sometimes we have to saynoornot like that you cantorwell, you can try it, but heres what youre risking, orit just isnt worth that much, or even,it sucks, but justwrite the check and move on. Your job, then, is to trust your lawyer; s/he is offering you the best advice possible.

I (and others) have describedlaw school like military bootcamp for the brain: a law student is stripped of her old way of thinking and taught a new way in her first year, then trained to use that new way to alevel of competence in the next two years. Then, we go out and apply it all in the real world, honing our knowledge and skills as we go. Maybe the Vulcan Science Academy is a better analogy, actually, because we learn toprocess a ton of data with dispassionate logic. But the best of us also reintroduce humanity to the practice and become weird hybrids of logic and compassion. That’s what I shoot for (and I know others that do the same).

The result of this training is that lawyers think strategically as well as tactically about each of your issues and formulate a plan to achieve yourobjectives, if at all possible; or to minimizethe bad stuff, if not. There is balance and judgment involved. Its tough work that requires more time and energy than you know. And that’s not me being egocentric–it’s just like howyour work is much more complicated and subtle than any outsider ever understands. Your work is pretty miraculous to me, even whenI don’t care for it aesthetically.

So, to have the best relationship with your lawyer, you dont have to like what you hear, but you do have to trust that it isseriously considered, bestadvice, with your best interests in first position.

Oh, and if you don’t think it really is, then don’t hesitate to get a second opinion from another lawyer.
But don’t be surprised ifthe answer is pretty much the same.


*This is true for all of us–we all have those areaswhere we think we know more than we really do.