Are You The Problem?

Okay, I usually try not to get political here; but I believe that, as a good American, I must stand up and speak some hard truth to you, the creative community. It’s going to look political but, really, it is so very much more than that.

Here is that hard truth: if you want to help keep the orange monster in the White House and people like him in power, losing any social benefits or chance at upward mobility and ruining the future for the next generations, please, continue using Facebook and Instagram (for ease, I’m going to call them collectively “FB” because you know, or should, they are both owned by Zuckerberg*). If you don’t want that and are using those platforms, wake up: you are the problem.

FB not only enables the worst of the worst—anti-Semites, racists, homophobes, sexists, revenge-porn incels, the whole host of uglies—it actively encourages them. Do a search of “facebook incels” if you don’t believe me. FB makes a lot of money from these twisted people and their hate groups. Zuck hides behind the idea that blocking these groups would be against the first amendment, but that is bullshit: the first amendment does not apply here. Free speech is about the government silencing or compelling speech, not a private entity doing so. So, the first amendment argument is a total fake. It is FB (etc., see Google, EFF…) using a powerful symbol of our fundamental rights (the phrase “first amendment”) as a manipulative tool to make us think it is doing the right thing, while it’s actually taking that right (and others) from us, the regular folk. 

Rather, FB/Zuck have an interest in promoting one rule of law for the rich, white, and powerful, and another for all the rest of us. Zuck loves money and power. He has made it clear, over and over, that he is lacking anything resembling actual compassion—he wants what he wants and will run over anyone or anything that gets in his way. Trump and his similars are his (and others like him—see, e.g., Ek, Musk, Thiel, et al.) ticket to this new America; they will never de-platform him or those who use terror and cruelty to support his “reign.”

By using the FB platforms you make it financially possible for FB’s continued promotion and support of Trump and his followers. In short, every time you use FB, you are helping keep Trump in the White House and people like him in power. That is not an exaggeration. You are trading your freedom and the opportunity for yourself and your children to live in safety and freedom, for the convenience of the platforms’ reach. That’s it. 

It’s bad enough if you use FB just to stay in contact with friends and family, but if you are using those platforms as a part of your business marketing, you are very much literally providing the content (I hate that word) that drives the whole machine. You are providing the fuel for this cross-and-book-burning-deep-state-conspiracy-make-the-rich-richer-dumpster-fire. You are enabling and enriching those who do not want you to succeed; in fact, they don’t give a shit about you except for how you can make them more money and be used to help them make America a whiter, christian, hetero-only, male-centric safe place for their greed. They want to put a sexist, homophobic, racist, (pseudo)theocratic oligarchy yoke on you and your descendants. And you are helping them.

So just stop.
Please.

If FB lost the photographers, illustrators, filmmakers, musicians, etc., it would not be able to get the advertising dollars it does. I believe that losing the creative class as users would mean FB would eventually fail, and probably sooner rather than later. The quality of content would drop dramatically. Fewer people would be interested in visiting. Remember MySpace? Same thing can, and should, happen. Besides, at the very least, by quitting, you could go to sleep at night knowing you were not contributing to the problem. 

We need to stop thinking about what is easy and begin not just thinking about but doing what is right. By writing this, posting it, and posting links to it, I am risking backlash to my business; but I cannot ignore this basic-yet-hard truth and raising attention to it is the right thing to do. If I lose some clients, I can live with that. Staying silent? Not so much.

Rather than getting pissed at me for pointing out this hard truth and maybe making you uncomfortable, I hope that you’ll recognize that what it means is that you have incredible power. Each of you, when working together, absolutely can change this. Voting, yes, of course, but economically, when we work together, we are a huge force! In 2017, the arts added almost 900 BILLION DOLLARS to the US economy and independent artists made up over 50 billion of that (see https://nasaa-arts.org/nasaa_research/facts-figures-on-the-creative-economy/ for lots of arts-and-money stats). Those numbers don’t include the money your work generated for the tech companies/platforms—numbers we’ll probably never get, since the platforms never want you to know the truth of your power.

Speaking of your power, the other side of this truth is that those now in power, those like Zuck and Trump, are terrified of us. They know we can wake up to our ability to get our shit together and stop their exploitation of us. They know that, when we do, many of them are going to see their money lost or seized and, better yet, the inside of a jail cell. We can do this, it just takes the internal fortitude to make the choice (and a little more effort in your marketing)

So I call on each of you to reclaim your power and stop using the platforms. Also, I call on the professional organizations who represent each of the creative industries to (1) stop using the exploitative platforms themselves; (2) encourage their members to stop using the platforms; and (3) put more efforts into providing members alternative tools to use for their marketing.

While this is a political issue in the sense that it is manifested in Trump, and perhaps an organization doesn’t want to play politics, at its foundation, this is much greater than that and organizations should recognize that.

I would go so far as to say that we can and must save these United States; we must stand together to do it. True republicans don’t want this corrupt, greedy reality any more than true democrats (or socialists, or greens, etc.). Once we get past the current crisis and restore the actual checks and balances both in our governmental system and our economic one, we can move back into our politely apolitical postures.

So, in closing, I say: cut off Facebook and Instagram from their content-fuel! De-platform the platforms! Take your power and wield it for the greater good. 
Please.

___________________

[* Yes, there are shareholders, but he has the only real power because of how the shareholder voting rights are structured.]

Bad Registration Advice

Recently, I was approached by a photographer about an infringement matter. It was a good-looking case, until I checked the registration. The work had been registered as unpublished, but it was admittedly published before being registered; in other words, it was knowingly registered wrongly. That makes a big “No, can’t take this on contingency” from me.

When I explained this to the photographer, the response was surprise if not full-on skepticism. Seems the photographer had been told, allegedly from several sources including at least one major national photographers’ organization, that one could register a work as unpublished if registered within 90 days of publication. 

Yikes. The amount of wrong there is worrisome.

Let me make this perfectly clear: one must never knowingly register a published work as unpublished. Ever. There is no way around it, short of lying, and lying is a very, very bad idea. Full stop. 

Registering under the wrong publication status is bad; but registering work you know was published as unpublished is a fast route to having the registration voided for that work. Now, if you are litigating and you get busted for the “error,” you will quite possibly (I’d say probably) end up paying the other side’s attorneys’ fees when you lose your case. Ouch.

Look, we pretty much all hate the published/unpublished thing—lawyers, artists, everyone. It’s an administrative hoop that is, in my opinion, arguably outdated and unnecessary. But, it is very much still the law. 

When a work is published, one must provide the US Copyright Office with additional information about that work in its registration application (date and place of first publication). That data is included in the certificate and USCO records. Registering the work as unpublished omits this information. That’s why it’s particularly bad.

So, where did this photographer’s misinformation come from? Hard to tell, but I suspect it was started by someone trying to get around certain limitations in order to register more works for less money. See, before the recent-ish changes in registration procedures, one could register a virtually unlimited number of unpublished photos in one “unpublished collection” registration. The limit was one of upload size, not number of works. However, published photos were limited to 750 per group registration (as well as other limiting factors, like the photos must be published in the same calendar year). In other words, it would cost more to register 1500 published photos than unpublished ones. 

This irked photographers. I know, I’ve been asked at talks I’ve given about copyright registration, back when those rules applied, “Can’t I just say the work is unpublished so I can do everything in one registration and save money? Who’s gonna know?” Of course, I pointed out the errors of that line of thinking, but I’m sure some may have errantly given it a try. Thing is, the USCO relies on you being honest so if you do misrepresent the work as unpublished, you will still get your certificate. But that doesn’t mean it will hold up in court. Anyhoo, once someone did it and got his* certificate, the info likely got shared and, boom, bad info gets out to the photo world.

Now, the rules are more equal. There is no more “unpublished collection” for photographs but rather Group Registration of Unpublished Photographs (GRUPH). That registration, like for published photos, is limited to 750. Like it or not. So, the incentive to misrepresent a work’s status is much less now. 

The 90 days thing, though, in the photographer’s response above? Well, that is extra rules-bolluxing. Contrary to popular thought, there is no 90-day anything in copyright registration for photographs. There is, however, the 3-calendar-month safe harbor for registering published photographs. It is NOT 90 days, but many people have wrongly said/written it as such. Remember, three months does not equal 90 days (hello, February) and you can get bitten if you get that wrong. Anyway, I think that safe harbor got mixed into the mess and we end up with this strange idea that there is a way around the publication status-related registration rules. 

You can fix bad registrations, but it is a process and it will cost you both USCO and your own attorney’s fees. Oh, and when the error is like what I’ve been talking about here, you’re almost surely going to get a new effective date, too (that can affect statutory damages for some cases). 

This stuff can be complicated. Remember, while your creative friends may think they know the rules, if you have any questions regarding your registrations, your best bet is to hire a copyright attorney for legal advice.

What Are You Waiting For? 2020

[NOTE: This is a re-working of an old post of mine, from 2013–you’ll see it’s fitting today]

When I first wrote this piece, it started off with this:
Yesterday, I saw that a promising reporter was killed in an auto accident in Los Angeles. He was 33. This morning, there was news that a best-selling novelist had died of an aggressive cancer. He was 47. And now, as I sat down to begin writing this piece, the news confirmed that James Gandolfini (star of The Sopranos) had died. He was 51.

Today, we see the same kind of news, plus all those lost from the pandemic. As of today, almost 70,000 Americans have died from COVID-19. Young and old, healthy and not. Gone.

I share this data with you not to depress; but rather to remind you that life is unpredictable and often way the hell too short. We don’t have much time–and yet we spend so much of that in fear and acting our of that fear. That, as the saying goes, is a god-awful shame. In the words of Mame Dennis Burnside (see Auntie Mame): LIVE! Life’s a banquet and most poor suckers are starving to death! So, really, what are you waiting for? Do you expect all the planets to align to suddenly show you a safe path that will lead to happiness? That’s stone stupid. Won’t ever happen. You have to let go of your habitual reaction to living with fear. It’s always going to be there, but what you choose to do about it, well, that’s up to you.

Are you afraid of failing? Why? What is the worst that will happen? You’ll lose your home and end up living under a bridge someplace, and you have kids?
Lame excuse.
You read me right, that is just lame. Guess what! You can do everything right and that dark, bridge-living future can still happen. Have you noticed lately how many people are facing that or worse? One pandemic and, boom, the business is dead. So, it doesn’t do any good to be afraid of failing since not failing won’t save you.

You have one chance at this life (well, one conscious one, if the Hindus and Buddhists, et al., are right) and you have no control over when it will end. So, I ask again, What are you waiting for?

You chose to be an artist and with that came the requirement that you have faith. Not faith in a god (not that you can’t have that) but faith in yourself, in your art, and that somehow you’ll make it all work. That’s fabulous. It’s amazing. It’s actually empowering, if you stop shaking in your boots long enough to remember it.

Being an artist requires you actually acting on that faith. You can’t say I choose to be a photographer/designer/writer and then play it safe. You have to do. You have to leap. You have to try and fail (or succeed) and try again and fail (or succeed) and keep doing that over and over again. Success and failure will cycle throughout your business, just like in the rest of your life. So you have to risk and push and do and try and fail and keep the hell at it.

For the rest of your life.

That is the bargain you agreed to when you chose to be a professional artist. You have to make, and do, and (sometimes) make do.

The one thing you cannot do is wait for things to be perfect before taking the next step. I’m sick of hearing artists say I can’t send the promo because the site isn’t perfect or I’m not sure my list/promo/portfolio/edit/studio/haircut is perfect so I can’t____. I can’t. I can’t. I can’t.

If you make some excuse for not doing, even now in the pandemic, then (when you can) get a “normal” job; you don’t deserve to call yourself an artist. You don’t have the guts.

I say that with love (you know that, I hope, by now), but it is true. Besides, I bet dollars to doughnuts you do have the guts. You must have had at some point or you never would have chosen to be an artist. You just need to re-find ’em. Now is the perfect time for that.

Now, in the pandemic, is the perfect time to take a good, long, hard work at your work and your business. Are you making YOUR work, not chasing someone else’s (including the “market’s”) trend? Are you valuing it enough? Ask yourself, What would I do differently if I knew there was no way to play it safe?

Frankly, this is true for any profession. It’s as true for me as it is for you. We have to get out there and do. We can’t be bound up by the fears of getting stuff wrong (which, by the way, has much worse ramifications in my profession than yours) or failing. We have to do and leap and try. Every bloody day. And these dark times give us the downtime to check in on ourselves to make sure we are still honoring the choices we made, like to be an artist.

Not only will doing this give you your best shot at being successful (and it will), it will make you happier in the process. Following your dream, doing what you love, isn’t that worth the risk of trying? Why be an artist if you never make your own art, the stuff that lurks deep in your soul? Do it.

Life is (sadly) short for too many people. We are really learning this truth in this pandemic. We don’t know when our last breath will come. No matter how well we treat our bodies, it is ultimately out of out control when Death will say “Howdy.” So we can’t control that, but we can control what we do while we’re here on this Earth. Each of you deserves to love the life you have, every bit of it but especially your work in it. The only way for that to happen is to try, to do, to make your art, to follow your dream, to risk, to fail, and to do it all again the next day.

So, what are you waiting for?

New Ruling Says Public Instagram Means No Infringement

A federal court (SDNY) has just ruled that a case must be dismissed because the photographer-plaintiff had posted the work on Instagram, with the account “public,” so the photographer granted a license to Instagram that included permitting Instagram to re-license it, including to the defendant (THR article about the ruling, here). So, the defendant (Mashable) had a license to display the photograph at issue via the Instagram API, and thus the case was dead. 

In other words, there was no infringement by the defendant since the photographer posted the work publicly on Instagram. YIKES! 

Now, this ruling does NOT say that it would be okay for a defendant to copy or download a photo it saw on Instagram and use it on its website for any purpose, but the door is open to defendants to try that, even if it might not be a winner. Here, Mashable used Instagram’s API to embed the work into its story; those facts may be the key points, but the terms of service for Instagram are very broad and, frankly, I’m surprised there hasn’t already been this result. Defendants will lock on this ruling and argue it, even in cases where the facts do not include API use.

While this is just one court, the implications are profound and, frankly, something I have predicted for some time. Also, remember that Facebook is as bad.

I know many of you would argue that you won’t be seen unless you use these platforms. I have to tell you that is simply not true and rather are stories told by the platforms and by clients/users, neither of whom have your best interests in mind. While sure, you don’t want to make things hard on your clients, you must balance that with what risks are reasonable (or not) for your business.

In my opinion, best practices for visual artists, especially photographers, is not to use Instagram or Facebook to display work. Keep your work on your own servers or use a reputable tool/host like PhotoShelter. If you have Instagram or FB accounts, I suggest deleting them asap and leaving a post directing your followers to your own website, instead. If they ask why, tell them you value your work and can’t afford to give away your rights.

Things to do During Stay-at-Home

If your state or city hasn’t issued an official stay-at-home order because of COVID-19, it’s likely only a matter of time before it does (or it is being run by a terrible leader, and you should stay in anyway). If your work is usually not at home or even if you are someone who usually works at home, you can make good use of this time “off.” I have some suggestions…

  1. Review your standard paperwork. Estimate forms, invoices, contracts, releases, licenses… if it’s paperwork that you use in business, now is a good time to review it and make updates and changes. Maybe you’ll need legal help for this, maybe it’s just a case of fixing the format so it reads more clearly; whatever, this is a great time to get your paperwork in better shape.
  2. Consider updating your business insurance. One thing lots of people have already learned in this crisis: not having business liability insurance or disability insurance (etc.) is unwise.
  3. Related to #2, inventory your gear and update (if needed) your insurance coverage. Whatever your gear is, take photos, update serial numbers, make sure you have enough coverage for your critical tools and gear, including computers and software. At worst, doing the inventory will give you a clean list you can have for later claims (keep a copy off-site!).
  4. Register a bunch of your work with the USCO. Now is a great time to play catch-up with your copyright registrations.
  5. Work on a (new) marketing plan. Eventually things will start to work again and you want to be top-of-mind with your targets when that happens. Now is a good time to look at what will get you there.
  6. Check in with clients. Don’t contact them to solicit work but rather call or email your contacts, personally, and wish them well. Simple, generous, kind human interaction now will be remembered later.
  7. Check in with your vendors/crew. Like clients, your vendors and crewpeople will appreciate the kindness, even if you can’t hire them or buy from them right now. If, though, you can buy something from them now, consider doing so to make sure they are around later.
  8. Give yourself a personal project to work on. I mean a creative project, whether that is in your usual medium or not. Some photographers and other creatives are using their art to document their experiences, which is fine, but I suggest something that is non-virus-related for this. You can do both, of course, but something creative that isn’t about the crisis would probably be good for your stress levels, too.
  9. Give yourself permission to do less. Lots of people are trying to work full-time from home and do all the other stuff that they now have to (like taking care of kids, for example) and are getting burned out fast. Give yourself a break and be flexible.
  10. Related to #8, give yourself permission to be imperfect. Too many people are trying to be perfect in this crisis–stop it. You’re going to have days where you won’t get any “work” done or that your kids won’t have formal lessons or the dishes don’t get washed… if you hold yourself up to your usual standards of perfection (like you do in your creative work), you will burn out faster. Embrace the suck, as a good friend says.
  11. (because of course it goes to 11) Do something specifically for your mental health. Meditate. Take long walks/runs (alone). Do yoga or other exercise. Watch a comedy film. Sing to the radio. Dance in your living room. Play with your dog/cat/kid/lover. Write a journal. Bake cookies. Eat cookies. Simply find something that brings you peace and equanimity, and do it. Yes, this is good for your business as well.

There are difficult times, sure, but they will not last forever. The suggestions above can help you feel more in control even when we seem to have little of that.

Wishing all of you well, safe, and happy.

COVID-19 and Your Taxes

You may have already heard that your federal tax return is not due on April 15, as it usually is. The deadline is now July 15, 2020. You can file now, and probably should if you are due money back, but you don’t have to.

Relatedly, and maybe even more important for we self-employed folks, the first quarter federal estimated tax payments are also being deferred to the same July 15, 2020 date. Huzzah! Note, however, that (so far) it is only your first quarter estimated tax payment that gets deferred, even though the deadline is after the second quarter’s due date (June 15, 2020).

For more info, see here: https://www.irs.gov/newsroom/payment-deadline-extended-to-july-15-2020

Coronavirus: What To Do

No one teaches us what to do when there is a crisis like now. I’m not going to lie to you: it is very likely that your business is going to take a hit from the coronavirus. No one can effectively predict how big or how bad it will be, but there will be an effect. The worst part for many of us is feeling the lack of control we have over any of it, especially because creatives, like lawyers, are notoriously control freaks. 

I don’t have good legal-y advice to give you here. This is very much uncharted water for everyone. You can’t contract your way out of this (so to speak) so, as a lawyer, there isn’t a lot I can do to help you through it beyond my usual service offerings. But I do think there are things we can do now that will make this difficult time a bit better, both individually and for us all, so I’d like to suggest them here.

First, breathe. I know, that sounds patronizing but, seriously, take a conscious, mindful breath now and then. If you meditate, keep it up or even add some extra sessions. If you don’t yet meditate, consider starting a practice. Calm breathing and meditation help to reduce stress and does all sorts of good for your body and mind. This is science, not superstition (see, e.g., https://nccih.nih.gov/health/meditation/overview.htm). Exercise works, too.

Second, if business is slow, use your downtime well. Get up, get dressed, go to work, and create. I think one of the best things you can do for your business is create new work and this slow time is an opportunity to play creatively—take advantage of it! Creating new work now will make you more competitive when things start picking up, because you will have fresh work to show your targets. Besides, playing creatively will make you feel better now, when things are tough. It will give you something else to focus on, something you can control more, and keep your head out of the doom and gloom of the news.

Third, read books. Put down the news, the social media, and pick up a book—preferably a novel (at least occasionally). Most people complain that they want to read more—now is your chance. It also will help keep you out of the dark places our current reality inflicts. 

Fourth, and maybe I’m burying the lede here, but this is really important: support others however you can. It may sound counter-intuitive but, helping others will help you more. It’s easy to fall into the fear-based and selfish hoarding behavior, but you can’t buy enough toilet paper (or potatoes or milk…) to make yourself safe. During WWII, people understood that hoarding was one of the worst things you could do while buying war bonds, donating, recycling, growing victory gardens, and generally thinking about the greater good would win the war. They were right. It’s also right now.

You can support other small businesses now by doing things like buying gift cards for later use. The businesses get the revenue now, to support them while their customers can’t or won’t visit. This is particularly needed for small service providers like salons, spas, as well as artists of all sorts. You can buy music (actual vinyl, cds, or downloads—not streaming) and merchandise from musicians, who now can’t even make money touring. Buy books (or gift cards) from indy booksellers, many of whom will ship, to help support writers. Buy a subscription to a decent newspaper, to encourage and support their reporting. 

And if you want to get really massive karma points, buy (some of) these things and gift them to people working in healthcare right now. Those people are risking their lives for us. You could order some pizzas (or whatever, especially anything chocolate) for your local ER staff, just to thank them for being on the front lines. 

Things are going to be tough for many people. You won’t be alone if you struggle. But, if you keep in mind that we are all in this together and that the virus and its effects are not permanent, you’ll get through it. 

You Are the Cause of Your Own Suffering

I heard a dharma teacher speak those title words on a podcast this morning. A related Buddhist phrase is “Pain is inevitable; suffering is a choice.” In my spiritual practice, I think about this idea often. It is, roughly speaking, that bad things happen to us all the time and we can never protect ourselves against all of these bad things (not even most of them); however, how we react to the bad things in our lives is directly related to the suffering we feel.

I also think about this idea often in my other practice, my legal one. What does this have to do with the law and, more importantly, your business? Lots! 

For example, when you find an infringement of your copyrights, like your art on someone else’s website, that is painful. The infringer has violated your rights and it seems perfectly reasonable for you to feel angry and upset. Instead, as an attorney, I counsel quiet acceptance of the way things are. This isn’t flakiness, it’s wise legally. I mean, you can’t control the infringer’s behavior and the infringement has happened already: no matter how angry or hurt you get, you won’t change those facts. But if you get angry and strike out, you’ll definitely feel worse, not better. So, take a breath and, gather your thoughts… and your emotions. 

If you strike out at the infringer in anger (even righteous anger), that will make things worse. You might send an email that amounts to legal threats/extortion, or publicly shame someone and later find out you had the wrong “bad guy,” or lose a client because you embarrassed it. But even if none of that bad stuff happens, attacking like that will not make the infringement go away or get you made whole. Instead, you’ll just suffer more because you’ve behaved badly and you haven’t made the pain go away or changed the reality of the infringement. 

Playing the victim won’t help either. It won’t make the infringement stop, it won’t punish the infringer in any way, and it won’t get you paid (if that’s what you want). You’ll just feel worse. There is your suffering, brought on by your own choices.

Now, “quiet acceptance of the way things are” doesn’t mean “do nothing.” Instead, after you take that breath and gather your thoughts, gather evidence. Here’s a post I wrote on that. Even if you decide to do nothing now (one option), you’ll have the evidence if you change your mind (you have three years from when you discovered the infringement, usually, to file suit). After you get the evidence, think about what will make you feel better, feel whole now. Then, take the calm and rational steps to make that happen, like hire a lawyer to get you money, ask the infringer for a credit line and payment yourself, filing a DMCA Takedown, whatever.  

As for protection, you can’t stop determined infringers. You can let go of feeling guilty, like it’s your fault they infringed–it’s not– and feeling guilty is choosing to suffer. However, you can make it easier to get satisfaction after they do their bad deeds if you take the right steps like using watermarks (especially in the form of proper copyright notices), registering your copyrights, using good metadata in your files, and getting good evidence.

Things like infringement are going to happen to you. When they do, there is no reason for you to suffer.

On Doing Right.

You make art, right? And I bet you find your work being infringed. You (probably) get upset about someone taking your work and using it without your permission. That’s totally rational. Then you get into your Uber, with its underpaid driver without any benefits or job security and go home where you listen to music on Spottify which hardly pays the artists or, worse, stream or download it from some free service, ripping off other artists just as you have been ripped off.

You’ve just blown your moral high-ground for your infringements. But worse than that, you’re contributing to the cultural acceptance of “the world is a shit place and if you don’t do it someone else will.” Stop. Now.

Here’s the deal: even when other people do spectacularly shitty things to you, that never justifies you doing the same to them or (yikes!) to others. Civilization (particularly its laws) only works when people refrain from doing the wrong things even when it makes things harder for themselves or when others won’t or don’t. If it were easy to always do the right thing, we wouldn’t need to regulate things with laws. But laws only work when we respect them, even when it doesn’t benefit ourselves. 

This rise in ethical failings is one of the great harms of the Trump administration: Trump flouts the law, over and over. He does horrible things, breaks the law, and the senate doesn’t hold him accountable (as it should under its constitutional mandate). He gets away with it. We all get screwed and frustrated. For people who follow the law and act ethically regardless of the law, it seems so unfair. 

Then, we are faced with a much smaller moral choice and it becomes far too easy to think things like “Why should I suffer when he gets away with it?” or “Well, the corporations don’t have to pay taxes so why should I?” or “It costs too much to rent the movie on iTunes—I can watch it for free on this other site.” We choose to do something that is objectively wrong, like buying our kid’s way into an elite college rather than making the kid actually earn that entrance, and justify it as not being as bad as, say, ripping kids from their parents at the borders. “My bad isn’t really that bad; look at what other people do!” we justify.

No matter how horrible the horribles are that are done by others, choosing to cheat or steal or lie (etc.) is still wrong. 

Long story short, every day we get to make choices. Every day we’re faced with problems and often the solutions are not very pleasant, unless we cheat somehow, like so many other people do. Regardless of politics, regardless of income or social class or race or gender or anything at all, there is right and wrong. We all know this—we just have to stop being willfully blind to our own actions that fail the test.  

Moreover, we have the power (if not the moral obligation) to choose to do right. 

A friend of mine (and, full disclosure, a client) recently announced that he is quitting all things Amazon because of how that company is abusing its workers. He noted that it will cost his family more and it will be more inconvenient, but it is the right thing to do. Bravo. Facebook has and is contributing to the rise of white nationalism, anti-LGBTQ groups, and the general thwarting of democracy. We can choose to quit it (I did quite some time ago). We can choose not to use the music “services” that pay the artists virtually nothing—claiming poverty while buying penthouse offices in NYC and partying on mega-yachts in Cannes. The list goes on and on. 

Of course, doing right isn’t always easy or convenient; do it anyway. You want a better society? You want more decency? Then do the right thing as often as you possibly can, regardless of what is done by others or to you. Treat others with more humanity than they treat you. The more of us who do these things (like quitting Amazon), the better the world will be for us and generations to follow.

Buddhist + Lawyer… Why?

As you may have guessed, I call myself a “Buddhist” and, obviously, I’m a lawyer. Why does that matter? Well, in short I think my Buddhist practice makes me a better lawyer.

I had my first formal lesson in meditation decades ago, back in my home state, when I went to a small dharma center near Ohio State (aka THE Ohio State University). There, a pudgy, kind, bald-headed, white man in saffron robes told me how to sit and taught me to pay attention to my breath. We sat for maybe 20 minutes all told and it was lovely. For lots of reasons, I never went back, but I did remember the instructions.

I started reading books about Buddhism, especially those written by the Dalai Lama and later Pema Chodron; but it took me many more years before I made meditation a regular practice. Luckily, I did so in the years before I started law school. Mindfulness, learning to be in the moment, and accepting what you cannot control—those tools alone helped me survive not only the pressures of law school, but the spectacular death of my marriage which occurred at the same time. 

Law school, much like the profession itself, is competitive by nature. Virtually all law students want to be the best and this is made tough since each course’s grades must fit the bell curve (meaning one top student only, per course). One’s grades and rankings matter for large (lucrative) law firm hiring later. I had no interest in joining such a firm, but I had to make grades for another reason: my full-ride scholarship depended on it. 

Some people take law school competition as a sort of blood sport: attack and destroy the others so you end up on top. Cheating, stealing/hiding research materials, refusing to help other students who miss a class for illness or something—those behaviors run rampant in some schools. Luckily, my law school wanted all the students to do well and did what it could to make that happen, mostly very successfully. My classmates were generally kind, shared information and class notes, and were supportive of each other. We competed, but respectfully. Rising tide lifting all boats, as it were.

Still, I wanted and needed to do well. Buddhism taught me that I had no control over what my fellow students did but only over what I did. Further, I had the power to reduce my own suffering when things did not go well by not reacting mindlessly. These ideas were liberating. It meant it didn’t matter if Ashley studied until 2am every night while I was asleep by 8:30pm (to get 8 hours sleep), or that Christina’s outline for Crim was 5 times as long as mine—I could only do my own work, my own way, and try to be as prepared for classes and exams as I could be. I also couldn’t control the professors, so when I was told by a (female!) legal writing professor that I came off as too masculine in my oral argument assignment and (I believe) got downgraded for it, I didn’t get in her face but instead shrugged it off and make sure I did better on some other part of the graded materials; because my goal was to get a good grade, not make her like me or my style.

Finally, Buddhism taught me about impermanence: nothing is solid and permanent, everything is constantly changing; so, even if something is really good, it won’t last; but neither will the really bad thing. That meant I could celebrate successes without trying to hold onto them and that I could suffer less through the bad things, knowing they wouldn’t last. I loved it every time I made the Dean’s List and I hated it when my marriage blew up, but both came and went.

Fast forward to my actual practice of law, now: I use my Buddhist practice every day in it (and yes, notice that we call each a practice). Most of my law practice involves negotiating with infringers or their attorneys (or insurance people). They want to pay as little as possible, I want to get my clients as much as I can, reasonably. Unfortunately, sometimes some people call me names and I have even been threatened with rape and death, just for standing up for creators’ rights. I know those names and threats aren’t actually about me—those are about the other person feeling out of control and trying to reassert it through bullying and fear. My Buddhist practice lets me be mindful enough to remember that none of this discussion with the nasty infringer or his rude lawyer is about me, it’s about my client’s case, so who cares if they call me names? I just stay on the actual topic, the law and the facts of the case, and try to work to a reasonable solution. Those people can sling all the monkey poo they want at me—I’m poo-proof—because I am focused on my client’s best interests, not my ego/feelings. This means I am less distracted/-able and so some lawyer’s other flashy technique will simply fail to move me off my point of focus: my client’s case.

Buddhism taught me that it is better to slow down and do less, better, than to do lots only okay. For example, I don’t take every case that is brought to me or make promises about the huge settlements/awards I will get my clients, not just because that behavior isn’t technically ethical but more because it is just wrong. Some cases should not be pursued because they are bad cases. No amount of bravado is going to save a client from paying attorney’s fees to the other side when the lawyer lies about the registration status, for example, and gets caught by the court. Sure, maybe trying that would work sometimes to get a defendant to pay up out of fear, before the status is discovered, but that is a horrible misuse of the law. I don’t want clients who think that is okay. You shouldn’t work with an attorney who thinks it is.

I don’t use generic templates for the filings I draft, because I draft with intention, including arguing the specific case’s facts and the appropriate law. Same with emails and letters to infringers and their counsels. This process is slower and as a result I probably do not make as much money as others might who have more clients and cases, but I know I’ve done my research and made the best arguments possible for each client in each document I write.

Besides, I do just fine, thank you very much. I am proud that many of my clients have been clients for many years. This wouldn’t happen if they weren’t happy with my work and its results for them. I’m always happy for new clients and cases (please do tell your friends about me), but I respect the honor of having long-time clients. I blame my Buddhist practice for that. 😉

Although I am tenacious, I am not what some people call a “bulldog” kind of lawyer. All bluster and ego makes famous (and often infamous) lawyers, but it doesn’t make them good ones. Good lawyers work with deep respect for the truth and logic, and in the service of their clients, not for fame; Buddhism respects rational logic, the truth, and wants to be of benefit of others.
Interesting how similar those are.

Now, I’m not trying to suggest that any of you start studying Buddhism—what you do spiritually is totally your own business. But after reading this, now you understand why I talk about my Buddhism and its relationship to my work: I think it makes me a better lawyer for my clients.