We Bought A Vehicle. You Get A Blog Post.

The boyfriend and I bought a new vehicle over the weekend and it made me think about how creatives really need better legal help—and probably don’t even know when they need it. Yes, my mind does that—thinks about my clients while I’m doing something like car shopping. Whatever, the result is you get this blog post and hopefully are awakened to some legal issues you might be unaware of.

So, our story. This vehicle is the first major purchase between us as a couple. We’re not married but we do live together and are as committed as two people could be; still, as unmarrieds, the purchase would not be community property as it would here in California, by default, if we were married. That is, if you are in a community property state, like California, and you acquire an asset when you are married, that asset will be (usually—there are exceptions) community property of the spouses. Roughly speaking, each spouse owns the whole asset with the other spouse, equally. But, as unmarrieds, we didn’t have that option so we had to ask ourselves, “How should we title the new vehicle?” We could have held title jointly (i.e., both of our names on the title, as co-owners), which would mean we both would have to sign anything related to the vehicle (like upon selling it) and if we broke up, we’d have to negotiate the ownership; on the good side, if one of us died the other would automatically own the whole thing without going through probate (much like community property). Another option: one of us or the other could hold the title individually; but then if the owner dies, who gets it? The answer is it depends on whether there is a will but, whatever, it means probating the vehicle and that takes time and money. In California (and some other states), another option is naming a “transfer on death” (TOD) beneficiary. There, a vehicle can be titled in one party’s name with “TOD Beneficiary [name of person]” on the actual title, which means that, kind of like with joint ownership, on the death of the titled owner, the vehicle is automatically the property of the TOD beneficiary named. The risk? The titled owner could change the TOD beneficiary at any time without the consent of her/his/their partner (that could be an ugly surprise, later). 

I’ll bet money most of you didn’t know these options, especially the last one. In fact, the dealership (a major one) we worked with didn’t even know about the TOD option. Anyway, with the exception of “community property” anyone—married or not—can choose any of those options, it just takes the right paperwork to make it legit. However, each option has advantages and disadvantages, so you need someone who has only your best interests in mind to facilitate. Speaking with an attorney can help you make the best choice for you.

Oh, and yes, we made the best choice for us. 

That was just for a vehicle; if you are considering buying (or even refinancing) real estate, married or not, the options and ramifications are even more complex. Your realtor or mortgage person isn’t going to be able to explain your choices to you while specifically looking out for your best interests first (like lawyers are required to, by law). They’re going to have their own agendas to pursue. That can cost you or your partner lots of money—maybe not now, but eventually.

For example, here in California, there are property tax ramifications for transfers to non-spouses that might be eliminated with proper planning and paperwork. That is, you can add someone to your title (in certain ways) without a re-assessment, but if the original owner dies, then generally there will be a reassessment for property tax purposes. Same if you don’t add your partner to the title and then die, leaving the property to him/her/them. Imagine thinking you’ve taken care of your beloved by naming him as the inheritor of your house, only to have him hit with a massive and unaffordable increase in property tax when he does inherit! 

Look, Adulting can be a pain in the ass. Lawyers can actually make it much easier. When you are considering combining homes, buying assets, or other big life choices like getting married, talk with a lawyer first to make sure you do it the best way possible.  

Creator? Get a Lawyer

Most of my clients are photographers. That’s no surprise since I started working with commercial photographers in the last millennium (yes, I’m old), and long before I became an attorney. Photographers know me; they’ve come to my lectures, bought my books, read my blogs, and know that I have their backs. However, I serve all kinds of creators, artists, and writers (I generally call all of you artists, by the way).

Regardless of what kind of artist you are,  frankly, I’m shocked at how many of you don’t have lawyers.

The logic of having one is pretty simple:

  • All professional artists have businesses–if you make money from your art, you are in business.
  • All professional artists have contracts in their businesses–yours, your clients’, etc.
  • All professional artists create copyrights (and should register them).
  • All professional artists get infringed (if you haven’t yet, it’s only because you haven’t found it).
  • All professional artists may get married, will die (sorry, but let’s be real), and have assets to protect.

Obviously, then, all professional artists (actually, all artists, even amateurs) have legal issues connected to their work and, for the pros, vocation. Why, then, do so few of you have relationships with lawyers? I suspect it’s mostly the cost. Maybe a little bit of “I don’t want anyone to see how I’ve been BSing my way through my business” imposter syndrome, but mostly cost.

I’d like to suggest my Burns Less program. It’s a great option for artists who have occasional quickie questions and want someone available when they crop up, without paying a huge retainer or hefty hourly fees.

Even if you aren’t interested in that alternative fee program, I encourage you to do a simple cost-benefit analysis before you have a legal need to see if it really is as expensive as you think. The answers will likely surprise you.

For example, is it better to spend a couple of hundred now to learn how to register a copyright properly with a lawyer’s help in answering some registration-related questions first; and so that, for every infringement after, you can get at least $750 in statutory damages? Or, do you want to take your chances to maybe screw up your registration and end up getting nothing–or even paying the other side’s attorneys’ fees?

How about a typical contract your clients wants you to sign for, say, a $1000 gig–the contract with a hidden assignment clause, meaning you’d be selling your copyright totally, for that grand? If you missed that how much value and income over time would you lose?

Or maybe you’re thinking about getting married–did you know that can affect your copyrights created in the marriage? A chat with an attorney before wedded bliss could save you a bundle if it all goes south later (sadly, that happens).

If you’re afraid you’ll sound like an uneducated rube if you ask questions of an attorney, that’s your ego talking; attorneys exist to answer legal questions and any attorney who laughs at you for asking questions, well, you should fire her/him. If you think you can go it alone, that’s also your ego talking–you aren’t a lawyer (or an accountant or a doctor) so you should do your thing (make art) and let other pros do their things to enable you to do your thing better.

If you’re an artist, I hope you’ll consider me for any legal help, of course; but, more importantly, I hope you’ll find someone qualified and with whom you can establish a solid working relationship. There are other great attorneys out there who work with artists and understand their needs–I’m definitely not the only horse in this race. Talk to a few of us and find someone you feel comfortable with–who gets you. Then, go on about your business of being an artist, with the security of having a lawyer on your side.

In that process, consider the Burns Less program. It may have a puntastic name, but I’m serious about trying to help artists at a reasonable price.

Bar-iversary Thoughts

Tomorrow is my Bar-iversary; that is, it’s the anniversary of my admittance to the California Bar. The day I took my oaths (plural—my school had its own extra one) and simultaneously was admitted to the Southern and Central Federal Districts for the state of California. The day I completed my dream of becoming a lawyer. 

And the day I had to start really being one.
Yikes!

Actually, it hasn’t been anything like I feared. I didn’t have to join some big firm and sell my soul doing god-only-knows-what law to pay my rent, but rather got to practice exactly the law I wanted to right off. I’ll never be able to thank my mentor, Carolyn Wright, enough for that. Even better, I got to represent wonderful creative clients, several of whom are still clients and, now, real friends. 

I like to think that I was a good lawyer right out of the gate, and it’s likely I was, but the reality is that I am a better lawyer now than I was then. No surprise—experience is a great teacher (so is my mentor).

My only regret is that I haven’t had the time to do the scholarly work I would like. Of course, writing papers doesn’t pay and I’m such a research geek that if I get started on that path, I’m going to starve (ha!). Still, I do keep up on the law both on a practical as well as a theoretical level, although more weighted to the first as of late. 

Relatedly, litigation is a time suck. 

Anyway, every year at this time I look back on that moment when I raised my right hand and swore to support the Constitutions of the United States and of the State of California and to be the best lawyer I could be. I think about what a bright-line marker it was in my life and what an achievement it was personally. Moreover, I think about the time since then, being in practice and actually lawyering. As a lawyer, since taking that oath, my achievements have been in the service of my clients, and most happily so. This is what lawyering should be, in my opinion: a service profession. It is definitely how I run my practice and how I intend to lawyer, for as long as I hold the license.

Thank you to each of you who have trusted me with your legal needs over the years. You have given me the career I always wanted and I am honored to serve you. Hopefully I will get to do so for many years to come. 

Do Better

I feel like humans have lost something fundamental and I blame the internet, particularly social media, for much of it. What has been lost? Decency; thinking of the greater good; putting others first. Doing right, even if it doesn’t directly benefit ourselves. Trying to be better.

For example, it used to be that we were shocked when a pornographic video of a famous person was discovered. We were embarrassed for the (usually) young person who was thus exploited and often that person would fade from public life. Now, people are making porns just to try to get famous.

People (even politicians!) used to have honor, now far too many will lie without a second thought and will sell their votes to the highest bidder, even if it hurts others.

We have become far too greedy and selfish. A quiet proposal is rare–now it has to be instagrammed and scripted and shown off. A first dance can’t just be a moment between new spouses–it must be a choreographed and recorded event. A simple ring as a gesture of the promise is now rejected because it must be better (read: bigger) than our friends’ rings. How sad is that? We can’t just be happy for the happiness of others without comparing ours to theirs (and making sure we “win”).

Why am I bringing this up here? Because it affects your business, and mine. I was reminded of this today when I saw that Unsplash has a photography contest and that Medium is a part of it. I tweeted that it was a terrible idea for photographers, because Unsplash’s terms generally are terrible and even worse for the contest. I warned photographers to stay away and that it hurt all photographers by devaluing photography. Sadly, of course, someone had to tell me how it was good for him so I should essentially shut up.

Sigh.

There is right and wrong. Sometimes, what we want we could get by doing wrong; however, if we choose to do that, we are very likely doing much more harm than we realize, including (as in the case of Unsplash and similar) hurting ourselves in the long run.

I could make more money (a lot more) if I took any case brought to me, asserted claims that were questionably colorable (meaning maybe or maybe not supported by the facts and the law), or defended infringers. I could also work more slowly when I’m billing hourly. I could do all that and have fewer financial worries and drive my dream classic Porsche rather than my significantly cheaper (but much loved!) Miata, but I couldn’t look myself in the mirror.

Why do I make these choices? Because I became a lawyer to help people and, yes, to do good. Yes, everyone is entitled to a defense, but to me representing infringers would be inherently a conflict with the work I do for my copyright creator/owner clients. So, I say “no.” Also, I will never assert a claim for a client if I do not sincerely believe it is legitimate. And I know how hard people work for their money so wouldn’t it be ethically wrong to try and squeeze more out of any hourly client by working more slowly? Yup.

Would I like to make more money? Sure, of course. But not if it requires lowering my ethics and standards.

We’ve been pulled into the muck of trying to be famous rather than trying to do right. We’re trying to be more interesting on social media, rather than quietly making a positive difference in the world.

As we head into the holiday season, I suggest we all take a moment to think about our choices and consider doing better.

Reminders

I’ve had a couple of cases (or, I should say, cases I had to say “no” to) recently that make me think creatives could use a few reminders.

First, on the bad idea of trying to make your infringement matter into a breach of contract; second, some Don’ts to remember.

 

In other news and speaking of reminders, yes, I’ve been terrible about posting lately. Mea culpa. I have had some cases in litigation that are time-sucks on top of my usual case load, plus I just experienced my first summer as a parental-ish figure (to my BF’s lovely home-from-college-for-the-summer daughter), but, really, I owe you all a better frequency of posts. I’ll try to do better. 🙂

Finally, my office partner Ruth Bader Catzburg just celebrated her second birthday. She is as small and feisty as her namesake.

Be an Artist

Someone asked me recently why I don’t blog about every copyright case opinion that hits Pacer (Pacer is where all federal cases are listed, fyi). I’ll tell you why: because I need to know all the details about those cases, you don’t. My job is to know the law, yours is to make art. Let’s not confuse these things.

I try to write this blog for artists, especially those who are or may be my clients, but for all creatives generally. That doesn’t mean I’m talking down to my readers, but it does mean I don’t write on the same topics or in the same depth or in the same language as I would if I was writing for my colleagues. Like all professions or trades, lawyers have their own jargon and we have interest in weird (and often weirdly important) things that our clients really should just not bother to think about.

It’s one thing for an artist to stay informed generally on the law as regards her/his/their business, but it’s a whole ‘nother thing to read law blogs and case opinions or to rely on non-lawyers for opinions on legal things. I encourage non-lawyers do the first but highly discourage the others. In fact, I’d go so far as to tell artists to let go of trying to understand business-related law (including copyright) at any level beyond the same way they understand traffic laws. I mean, an artist should know the law enough to know to do this, not that, and basically leave the rest to the lawyers (and to ask the lawyers, privately, for those answers).

Some of you may get your hackles up at that, but I’m not being demeaning here. Rather, just as I should not act as if I know as much as a professional artist about art, although I can do some creative things, artists shouldn’t try to be their own legal advisors (much less lawyers[1]). Humans simply do not know everything and we are (without great study) incapable of knowing multiple professions in equal, or even sufficient, depth.

The internet has done a great disservice to us in this. It’s turned us into believing we can and do know and understand much more than we really do. In reality, it’s shallow information overload. We get exposed to things we never would have before this beast[2]— but the knowledge we actually acquire is at best at a thin depth.

By “sharing” all sorts of data, much of which is highly suspect (but let’s not even go there now), average folk suddenly think they know as much as anyone about almost everything. This can seem to work for us in the short term or on occasion, but it is a dangerous seductress.

For example, my retired-graphic-designer brother recently fixed my father’s air conditioner, thanks to a tutorial on YouTube. Great, except my brother doesn’t really know anything in sufficient depth about how wiring and electricity, not to mention an air conditioner, actually work; so maybe his fix will work in the long run or maybe he’s created a fire hazard. The sad part is he (like all of us) can’t look for what he doesn’t know, and he doesn’t know a lot since he is not a trained air conditioning repairman. But he has a very strong illusion of knowing, the illusion of full competence, at least insofar as this one repair[3].

When I had my last physical, I asked my doc about whether the internet is making his job harder. He said it definitely had. He gets more people coming in thinking they not only know what is wrong, but what the best cure would be, and basically get frustrated that he wants to examine them and instead ask him just to fill out the prescription. Or, they have ignored symptoms until something has become critical because they read online that if they just do a “cleanse” or something, it will pass.

I told him I felt his pain. I get potential clients who tell me what they think the law is, all the time. It sucks to have to say “no” or “you’re wrong” to these people, when what I want to do is help.

Worse yet, too often I read industry online publications that get the law completely wrong and it is clear that they have read something legal that they simply didn’t grok. Perfect example: a major professional photographer’s organization (or perhaps 2) published that photographers could register a copyright anytime, just as long as it was within one month of finding an infringement they’d be able to get statutory damages for that infringement. That is totally NOT the law–it is a mis-reading of the statute and has to do with an inapplicable “pre-registration” provision of the Copyright Act. Still, the bad information is out there and being promoted by what are supposed to be reputable sources.

Now, I get that one of the reasons that people look to the internet to get answers is because usually that information is free. In the case of the law, people think it’s going to cost them a bucket of greenbacks to get answers from an actual lawyer (and for BigLaw lawyers, that is usually the case). Usually, it won’t be that expensive and, more importantly you’ll get the right answer for your particular situation. Even if you spent, say, $350 for an hour of an attorney’s time and expertise, it is very likely you would, in the long run, save much more than that with the personalized and precise advice you would get.

So, here’s my general advice: if you’re an artist, be an artist and let go of trying to do everything. Honor your profession by honoring others, including not trying to get it all for free. Instead of taking a couple of hours to look something up on the internet, and vetting it on several sources, hire a pro and use your freed-up time to make better/more of your art. You’ll end up making more money and your over-stimulated brain will thank you.

As for me, I’ll keep writing about the law and your art and your business, but you’re not going to get in-depth legal analyses (usually) from me here. I don’t want you to get bogged down in the details, like specific code sections and treatises–I want you to know, rather and for example, that you should register your copyrights as soon as possible or not sign a Work For Hire unless you want to give away your copyright.

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[1]By the way, this applies to any profession that isn’t your primary one–you are not a doctor, or an accountant, or a farmer, or economist, etc.

[2]Just think about TV–trying to decide what to watch now is an exhausting process because of all the choices. There is just too much to choose from–how do we know what is best?

[3]He’s going to hate me for using this as an example, but it’s kind of a perfect example. My brother is brilliant in many ways; while it is entirely possible this fix is perfect, there is simply no way for any of us to know because we are not a/c pros.

What To Do, part 2

So you’ve found a probable infringement and you’ve gathered all the evidence you can (see previous post), now what? You have choices[1]: do nothing, contact the infringer yourself and send an invoice, contact the infringer yourself and send a cease and desist/demand letter, send a DMCA takedown notice to the infringer’s ISP[2], or contact a lawyer.

Of course, I’m going to say “contact a lawyer” is your best option (um, duh!), but I’d like to discuss the other options a bit here, too.

First, I think that doing nothing is not a good option, with one exception: if you are so utterly risk-averse that you can’t bear the slightest chance that you may end up in court over the illegal use of your work, then sit on your hands and seethe, but do nothing. That is, if you do anything else like the options described below, you do run a small (and usually is a very, very small) risk that the other side will file suit against you for declaratory judgment that it did not infringe. This is really rare because copyright infringement is strict liability and so, unless you missed something like a license granted to the infringer, it’s a loser case for the infringer. I had this happen once–the infringer tried to use it to scare off my client. Didn’t work and, not too much later, we negotiated a settlement that my client was quite happy with (plus, my client saved the cost of filing the suit). Still, if you don’t want to face the generally tiny possibility of going to federal court, do nothing.  Otherwise, read on.

Some people suggest sending an invoice to infringers, but I don’t encourage that. It’s likely you will undervalue the infringement and maybe even miss additional claims that will add value to the overall matter, so you sell yourself short. Worse yet, an invoice sent will virtually neverresult in you getting a check for your invoice’s full amount. At best, the invoice will be a start to a negotiation; but, if you’ve already undervalued the matter and then you end up at, say, 50% of that, you’re bleeding money. You also set your price without knowing all the facts and that could bite you if you end up in court later. Nope, invoicing is not a wise idea in most cases[3].

Similarly, I generally don’t encourage creatives to send cease and desist (aka demand) letters of their own drafting because they usually (of course, accidentally) screw them up because of language errors as well as under-valuation. If you don’t know the law, you may  (as mentioned above) miss legitimate claims that add to the value of the matter and you could end up offering to release a $25,000 claim for $5000.

As for language, there are two main areas of concern: misusing legalese and slipping from legitimate demand into extortion. The latter, first: “Pay me $10,000 or I’m going to go public with what a thief you are!” is going to get you in trouble but a demand for $10,000 to settle the claims is not inappropriate if the facts support it.  The line isn’t so obvious sometimes and, since anti-copyright folk scream Extortion! at any demand, you want to be sure you don’t actually cross that line.

Using legal language incorrectly happens often and often it is by people who are very smart but, not being attorneys, they have no clue that using certain words means something different in a legal context (like published in copyright law, for one example). To paraphrase Inego Montoya, “I do not think those words mean what you think…” and that can get you in trouble when the other side lawyers up.

Another error in artist-drafted letters is you can be a doormat: “I’m sorry, I’m sure you didn’t mean to, but you used my work. Would you be willing to pay me $100?” is differently but arguably just as bad as accidentally extorting the infringer. You’re undervaluing the infringement and groveling…ick! Overall, unless you have a form letter drafted by an attorney and you are very confident in evaluating your cases for all the potential claims and their damages, I encourage you to refrain from drafting and sending letters yourself.

Moving on… sending a DMCA takedown notice to the ISP is a tool you can wield, and it will probably get the infringement stopped, but it does nothing about getting you the money you deserve for the illegal exploitation of your work. Usually, I think it is better to notify the actual infringer first (as a part of a demand letter) and then, if it doesn’t remove the work, send the takedown notice. This can be a strategic choice that is worth evaluating with an attorney too as, for example, continued use after notice can be a factor for willfulness. Also, you do want to be sure to send a technically proper notice, if you choose to send one at all.

That brings us to the final option: contacting an attorney. A competent copyright attorney will avoid the issues described above, will evaluate your claim(s) and your opposition’s potential defenses, and will advise you on your best course of action. We have to–there are rules (actually, laws[4]) that demand it of us. So, as opposed to companies[5] that claim to help you with your registrations or infringements, attorneys, once hired, must put your best interests first, including above our own. It’s part of why we have to be licensed–to provide competent counsel to our clients.

While we attorneys can’t take every case that is brought to us, we are required to hold your information confidential even if we don’t take the case so it is worth talking with one of us before you do anything.

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[1]As long as it is still less than three years since you discovered the infringement (in most cases/places), you have options. The statute of limitations is 3 years for infringement and usually that clock starts ticking when you discover the infringement. Don’t wait until the last minute.

[2]DMCA takedown notices do not go to infringers but rather to the ISPs that host the infringement. For example, if I were an infringer of the post office photo I showed in my last post, the author of the photo would send the notice to my host, not me. It gets the work removed and gives the host/ISP a legal protection (safe harbor) against being sued for infringement, but the author could (and arguably should) still go after me as the actual infringer.

[3]An exception may be with an existing client who has used work beyond the scope of a license; then, for a continuing-business-relationship reason, an invoice may be wise.

[4]See, e.g., Cal. Bus. & Prof. Code §6068, including sub-section (g) that says an attorney must not “encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.”

[5]Companies are required to make as much money as they can for their shareholders, first and foremost.

Don’t Lash Out

I heard about a case recently that made me think about all the people, especially the small artists, who get angry when they find a (potential) infringement and go onto social media to rip the, um, lets just call em badguys. Short answer is, even though you think it will help or at least make you feel better, youd be wrong. In fact, you could be inviting a lawsuit filed by the badguys.

Heres the very generalized skinny on the case (because really, unless you are a geeky lawyer like me, it is a dull read). One business (a kind of review site) publicly published that another business was a copyright infringer and that it had adult movies on its site. That arguably hurt the second business, so that onesued the first for various things that roughly amount to the business version of defamation. The court threw out that suit, under the California Anti-SLAPP law, which which exists so that people cant use the judicial system as a way to silence legitimate speech.

Okay, you may be thinking, the allegedly name-calling business didnt lose so whats the big deal? The big deal was that it wasnt a slam-dunk. Proving that the publication of something (potentially) defamatory was protected speech and that the lawsuit had to be dismissed under Anti-SLAPP wasnt easy. Similar cases have not been dismissed and you don’t want to be one of those.

Lots of people think they have a First Amendment right to say[1] whatever they want about whomever they want. Trouble is, that isnt so. There are limits. You cant defame someone (or a business), for example. And if someone sues you in California[2] for what you said, then, to get the case kicked out, you are going to have to prove that your speech was (1) an exercise of your First Amendment free speech right and (2) that it was made in connection with a public issue or an issue of public interest. Thats a pretty high bar to get over. In fact, youre going to have to show that the subject person (business) was famous/a pubic figure, or that the subject matter of the speech is of great interest to enoughpeople not affected by the case, or that the topic was of general widespread interest. Just because you and your drinking buddies think something is important isnt going to cut it.

After you, as the defendant in the original law suit, prove all that, then the other side (plaintiff in the defamation suit) gets a chance at a save–if it proves that it would probably win, then, even after you proved the above, the case will not be dismissed. See, not so easy.

So, going back to anaggrieved artist who tweets about the evil bastard Joe Doe who stole my illustration and then, worse, follows up with No one should shop at his store because he is a lying thief! well, that artist may be facing a lawsuit for those tweets and one s/he may not win. Think about that second part of the Anti-SLAPP–the potential save for the plaintiff–maybe Joe Doe had an implied license or a legitimate fair use defense that you, as a non-lawyer, didnt know would gut your infringement claim.

Better to sit on your tweeting/social media hands than run the risk of getting sued. Even if you did win, youd have to go through the unpleasantness of litigation. Instead, register your copyrights regularly and, if something gets used without your permission, talk to an attorney about your infringement claim and what your options are.

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[1] And by say I mean speech made in any medium–wrote, recorded, painted, shouted in a public space, etc.

[2] Some other states have similar laws.

Forming an Entity: The Other Stuff

I wrote recently on some of the copyright considerations related to running your business as an entity. Today, I want to address some of the other things you have to do whenyou decide to form an entity. First, a quick reminder that I am speaking generally here and with California law in mind: each state has its own laws so your mileage may vary, so to speak.

Most creative pros start their businesses as sole proprietorships. As Ive explained before, there are no formalities required to do that, outside of maybe having to register a fictitious business name (DBA) with your county or city. Forming an entity requires filing various papers with the state, but after that is done, are you done? Not by a long shot.

Assuming youve been running your business like a business, you may have things like business banking accounts, credit cards, or insurance policies. When you have a new entity, you are going to have to convert all of these to the new entity. In some (probably most) cases, youre going to have to close existing accounts and open new ones. Youll also have to get new checks printed.

Its particularly important to talk to your insurance provider to get your policies worked out. You dont want to get caught with those proverbial pants down. This may also mean your auto policy, dont forget.

Speaking of your car, did your CPA tell you it would be best to have your company own your car? Then, youll have to transfer it (and yes, we all love the DMV, but do it). What about your other assets? Computers? Cameras? Furniture, etc.? Even if you own these things outright, it would be best to document the transfer of the assets to your new entity. Talk to your CPA before doing any of this to make sure you dont do anything to mess up her/his careful tax planning for you.

You also need to think about your IP licenses. No, not your licenses out (those you sell to other people to permit them to use your work–although you will need to update those moving forward) but the one ones you purchased for things like the software that you use in your business. Some of those will be non-transferable and you will have to purchase new licenses. Dont get angry about it and dont skip this–especially if you issue non-transferable licenses, you should understand this.

You may also have issues with any office/studio space you lease (landlords often will be fine with updating a lease) and definitely youll need to set up new payroll accounts if you have employees, including getting a new EIN number for the entity not to mention new workers comp., etc. Also, if you have a business license with the city (or county) you’ll have to get a new one for the new entity, too.

Finally, you need to learn how to sign documents properly for your entity. You may no longer sign justBetty Smith, but rather must sign as Betty Smith, Managing Member, Smith Creative, LLC, a California LLC, if you formed an LLC; or, if you did the corporation thing, Betty Smith, President, Smith Creative, Inc., a California Corporation. Yes, it’s a pain in the butt but if you don’t sign properly you can personally be liable for things. No, I’m not kidding.

Relatedly, you will need to update all your business paperwork to reflect the new entity–like your licenses you offer clientsand your contracts/estimates/invoices/model releases/etc. Also be careful in the contracts you are offered: make sure they are naming the entity and not you as the party and that there are no “Personal Guarantees” or other clauses that effectively remove the protections of the entity.

Your CPA should provide you with a lot of guidance on the financially related changes you needs to make. An attorney can help you with the rest.

One Year

Yesterday, July 1, was the first anniversary of Burns the Attorney.
Ive been incredibly lucky. Its been a really good first year.

I have wonderful clients, both new and old, who honor me with their trust. I take very seriously their reliance on me to do my best for them because, in very important ways, it means I help them focus on being creative professionals. Think about it: which would an artist rather do, make new art or chase down people who have used existing art without permission or payment?

That is most of what I do, helping artists with copyright infringement matters. But I do other legal work as well, of course. In the past year, Ive helped clients with contracts and releases, discussed business formations and the effects of community property on clients copyrights, and, well, lots of other things too.

Not everyone gets the opportunity to do what she really loves. I do, and I am so grateful for it.

I want to thank all of my clients and, in advance, all of those who will call on me to help in the future. I intend to be here for some time, serving artists of all sorts.

If you ever need me, you know where to find me.

And thanks.