On Abundance, redux

I wrote this originally back in 2012, but it is even more needed today so I decided to update it.

Everyone talks about how there is an abundance of content creators today. How there is more creative work than ever. How everyone is a photographer, a writer, a curator (don’t get me started on how that word is misused), a musician… we’re all making stuff. And, the argument goes, because there is an abundance of stuff, none of the individual work is really worth much if anything now.

Here’s what these arguments about abundance in creativity and the pricing model get spectacularly wrong: the reality is there is no abundance of good creative work. Sure, there is an abundance of photography and music and writing and art, but most of it is, frankly, shit.

There is abundance in the creative industries in the same way there is abundance in drivers–there are billions of car drivers globally and just about anyone can do it–but how many people do it well? I don’t just mean those who drive better than Mr. I-go-55-in-the-fast-lane-man and his crappy driving brethren out there. No, I mean, how many professional race car drivers are there? Not very many. Ergo, they are highly valued.

Real creative professionals (in whatever discipline) are like pro race car drivers. They can do things very few others can. Their skills are extremely specialized and what they do is, simply put, not of the same quality as what regular people do.

The media and, worse, the tech companies that control the discourse on this subject within the media, have tried to convince us that your creative work is the same as anyone who tries to make something of the same media. Further, because it is the same (in their argument), that work is of the same value and, final coffin nail, because there is so much of that work available now, that value is near zero. In their world, for example, any pro photographer’s photography is the same as mine (for the record, I am not a photographer) and hardly worth anything since there are so many “photographers” out there. That’s like me saying I’m just like, and of the same value as, Mario Andretti or Michael Schumacher because I know how to drive a stick-shift and don’t completely suck at it.

Bullshit.

Every time you let them call you a “content provider” rather than by your proper title you let them define you as less than you are. You are a Photographer or an Illustrator or an Artist or a Writer (etc.). You CREATE. There are damn few people on this planet who actually create and create well. How dare you accept their belittling bullshit about who you are and the “abundance” of what you do. Worse yet, how dare you call yourself anything other than by your proper title!

You, creative professional, are scarce and your creations are of high value. You are a professional race car driver. Don’t let anyone bully you into thinking otherwise.

Showing 2018 the Door

As we show 2018 the door, and just like we did last year, now is the time to take a look at the year that was and think about the year yet to be.

In 2018, many of us were still reasonably pre-occupied by the lunacy in Washington, DC. It’s been a tough year for anyone who respects the law and has any sense of human decency. Still, while we can’t give any of that bad stuff a pass, we also need to focus on our own lives and, crass as it may sound, our businesses.

With that in mind, here is a list of some things to do, to stop doing, and at the very least to consider as you gear up for 2019.

  • Register your copyrights. Please. I beg you. If you are a creative professional, stop making excuses and start doing this. As I mentioned last year, while there are services for this, I do not recommend using any of them because they might not be anything more than maybe adequate and quite possibly deficient. A well done registration can make a potential defendant in an infringement matter settle fast and for more money. A wonky one may be challenged by a wily defendant or will at least give one pause. Registration  is not that hard anyway, particularly for visual artists and even more so for still photographers.
    • Relatedly, stop thinking about the cost of registration as a reason not to register–first, it is a legitimate business cost and so you can write it off and, second, it is like insurance that you pay for once but off which you can make many claims (and for much more than the original cost). You will (almost assuredly) make more money in your business if you register your copyrights.
  • Pursue infringements. Not every case has to be worth 5-figures or more to get legal help. Some attorneys, like me, will take on small cases because they simply do add up. Let’s say you have small value infringements but a bunch of those– worth $2500 average settlement, just for sake of argument. 10 of those over the year is $25K. Now, let’s say your attorney gets 35% of that: you’re still pocketing over $16K.  How about 20 cases and more than $32K in your bank? Why not see of they are worth getting a lawyer to pursue (I review cases for free)?
    • Relatedly, consider using this tool instead of some much more costly “service” to find those infringements.
  • Make the time to make art for yourself. Whatever your medium/media, make making your own work, for you, a priority. Yes, you can probably use it later in your portfolio (because work made for yourself usually is your best work, if you let yourself really be free with it) but mostly, you need to give yourself total permission to explore, play, make utter crap, screw up, take risks, and re-find the joy in your work.
    • Relatedly, (re)learn how to fail. It is through failure that we achieve the abilities to be successful.
  • Get off social media, even for (most of) your marketing. The Terms of Use on pretty much all those services really do suck for creative pros, and all they do is make promises they can’t deliver.  And they are a huge time suck. And many of the companies have actively participated in bringing us the political hell we are now in. So stop facilitating their shitty behavior and quit using them. Besides, when it comes to your marketing, it’s virtually impossible to get seen by the right people by using social media, particularly if you are relying on trying to trend/go viral. Instead, do better targeting (make lists of the clients you want to work with!) and get back to the basics in your marketing plan. Back off the electronic crap and consider investing in really good print mailers. Also, try to interact in real life with potential clients. Make calls, go to industry events, volunteer with professional organizations of your potential clients–get out there in three dimensions!
    • Importantly, instead of posting everything on Facebook, Instagram, etc., keep your work on your own server/site and post links on social media, if you insist on using social media.
  • Use a watermark on visual art. Preferably, it should be in the form of a proper copyright notice (that is © year of first publication Name, for example: ©2018 Leslie Burns) but if not that then the copyright owner’s name (not your URL). For non-visual art, include the notice somehow like in the audio file for a podcast or both on the doc and in its metadata). I’ve already written about the wizbangery that is the CMI-related part of the DMCA–don’t ignore those protections!
    • Also, if you don’t know what metadata is or how to edit it for the digital forms of your works, learn now. Everything digital has metadata and that metadata can be crucial evidence in a lawsuit (it may also be CMI).
  • Make plans, including for death. Life changes, including the ultimate one, will affect your business and assets. That is basic reality. I lost my own father this year and you can trust me, having things properly organized and documented before the fact is a huge help in the grieving process. Take the time to look at where you are and what might happen, and plan accordingly (see my previous article on this, and this one on marriage, too).
  • Most of all, make time to be with those you love. Be fully present, and not just during the holidays. Also give to those who are worse off. Time and caring are things we can’t bank or buy; being present with those whom we love and who love us, and giving to others who are struggling somehow (and there are plenty of those these days) will do more for you than having another thing to own.

Here’s hoping 2019 is a happy, healthy, and prosperous year for us all.

In Memoriam: Robert H. Burns

For some reason, my father abbreviated Robert as Rob’t in his signature, but he never omitted the H. I never asked why.
Now I can’t.

Dad died yesterday. Quietly. After what obituary writers might call “a short illness” but really, I’m not sure what to call it. He was at home and fine (relatively speaking–the man was almost 93) less than three weeks before his demise. Then he fell and gashed his hand, ended up in the ER for stitches, got admitted for rehydration as well as IV antibiotics for some old infected wounds, got better, moved to rehab to learn to use his walker better, and two days later was readmitted to hospital, then hospice, then gone.

I’m glad for the speed of it, for his sake. He would not have liked to linger and would have hated living in any sort of facility for anything more than a brief stay. He was fiercely independent. Dad lived on his own, alone, in his townhouse condo (with its stairs!) up until the end. My brothers generally hated that, but I respected his choice. He knew it increased his risks of accidental death at his age, but he was willing to take those risks for his independence. He drove, too, for which I feel a bit compelled to apologize to the people of Atlanta.

I got my love of driving, including stick shifts and cheap(ish) sports cars, from my dad. I got a lot from him, actually. A short list would include:

  • brown eyes that are getting lighter/more hazel-green as I get older
  • a love of the law
  • an ability to see both sides of issues and look for rational solutions
  • honesty, which (unfortunately) can be a bit too harsh for some folks
  • a loathing of yelling, particularly in fights
  • a love of, but not the guts for, acting
  • a strong whistle
  • athleticism
  • respectful competitiveness (I don’t like to lose, but I’ll respect whoever beats me at whatever)
  • enjoying watching football and baseball, but without rabid fanaticism
  • religiously doing the NYTimes Sunday crossword, in ink
  • quiet rationalism that can be perceived as coldness (aka Midwestern stoicism)
  • liking gin martinis, steaks on the grill (although I prefer mine rare), and ice cream.

As a kid, Dad taught me to swim, to ski, to play Hearts, Spades, and Blackjack, to ride a bike, to drive, and that one didn’t actually have to stop for a pee half as much as you’d think on long car trips across the country (while arguably a bit tortuous as a kid, this was great training for college bars). On his post-divorce weekends with me, sometimes we’d go horseback riding or ice skating. We’d go to Snowshoe, WV mid-week for a ski break or to Boyne, MI or take a half-day and go to a local hill. Spring breaks were often long car trips to Vail or Park City or Ft. Lauderdale, with stops in New Orleans or Mt. Rushmore or Joker Joe’s in Benton, TN to buy fireworks. Thanks mostly to Dad, I’ve been in each of the 48 contiguous states.

In recent years, we usually spoke weekly, on the phone. FaceTime or whatever was really beyond him–I mean, he’d still call me to say he’d received an email or, on the rare occasion, to tell me he’d sent me one. Each call, he would ask me about my practice and my cases, even though he didn’t understand copyright law (he had been a general practitioner, doing mostly real estate, divorces, and probate). He’d also ask about the weather, whether I had been swimming in the ocean lately, and how the animals were. He referred to my live-in boyfriend as my “friend,” almost never by his name, although more recently he did say he was really glad I was happy with him. That was unusual–Dad just wasn’t the warm-fuzzy type. For example, I’d always end the calls with “I love you” and he never said it back. It just wasn’t his way. I knew he did, though, of course.

He sucked at expressing his emotions directly. Yes, there is a great irony that he had been an actor before law school, but he couldn’t say “I love you” to his daughter. I blame his mother, who was apparently a piece of work (she died shortly before my birth). Everything made sense to me when, some years ago, he said that they never had black pepper in his house growing up, because she did not approve of it. And she dressed up her cats as a child. Yikes. It’s a small wonder he wasn’t a serial killer or something, after that childhood. Anyway, his inability to be direct about his feelings meant he, for example, would tell one of my brothers how he was proud of me, and me how he was impressed with my brothers. We all eventually heard it, just never straight from him.

Oddly, the last time I spoke to him I said, “I love you and I miss you” instead of my usual closing. I had no idea that would be the last time we spoke, but for some reason I added that second clause.

It’s too true, now.
I love you, Dad, and I miss you. Thank you for everything.

One Opinion to Remind Us

A very recent opinion in the Eastern District of Pennsylvania (Kashi v McGraw Hill Global Educationpdf here) looks at first like the photographer plaintiff lost because the court did not grant him summary judgment. However, really, the opinion has lots of good stuff for photographers/licensors in general, and maybe even the plaintiff. I’m going to discuss the highpoints below (out of order from the opinion, by the way).

First, there is the part about registration where the court followed the reasoning in Alaska Stock (etc.) that roughly says that when a person registers a collection of works and follows the steps prescribed by the US Copyright Office, then the registration conveys to the individual works in the collection. Yay!

Then, there is the part about how there can’t be an implied license if there is an express one. Implied licenses are sneaky–sort of accidental licenses that exist because of conduct–and can bite photographers (and other licensors) in the butt. However,  if you have a written license for the same work for the same client, then that client can’t later go beyond the license and try to say that there was an implied license at work. Yay!

Relatedly, the court reminded all that a defendant can’t rely on “industry custom” to excuse its bad behavior when it comes to copyright matters. However, a defendant could point to previously agreed to behavior by the actual parties as an out, but that is different. So, yay again.

Next, the court said that there may be an issue about the statute of limitations in this particular case, even though the discovery rule applies. This is important: you’ll hear people say “you have three years from the date you discovered an infringement to bring a suit” but generally attorneys will add the important “or the date you should have discovered it” into that sentence. As the court here pointed out, you can’t turn a blind eye to possible infringement then, later, say you didn’t find the infringement until much later. If you have reason to think there might be infringement happening–that is, a specific act of infringement (not just “I bet someone somewhere is knocking off my work”)–then you need to investigate. The clock essentially starts when you have good reason to suspect there is an actual infringement happening in that situation. No yay–more of a heads-up.

And finally, the big issue here was whether a use beyond the scope of a license meant there was a condition precedent or a covenant breached, which is legalese for “is this a copyright infringement matter or a contract matter?” Here, the court said payment for the specific rights was a condition precedent  to the grant of those rights so this was an infringement case.

So what’s the big deal? A contract can only get contract damages, which are usually very limited. An infringement with a timely registered work gets statutory damages and maybe attorneys’ fees–much more. But the two things are very close cousins, language-wise.

A covenant is a promise and an exchange of promises is a contract; so if Party 1 promises to do X and Party 2 promises to do Z in consideration of X, then you have a contract; if one or the other isn’t done, you can only sue on the contract. For example, “PhotoBob agrees to license the works to Client for $1000, which Client agrees to pay within 30 days” is a contract. If Client doesn’t pay on time, PhotoBob can only sue for the amount of the contract–to get paid what he is owed. Usually, you can’t get attorneys’ fees paid for if you sue for breach of contract (there are exceptions, depending on state law, but generally require that the contract specifically includes language about getting attorneys’ fees if you sue and win on the contract).

A condition precedent, on the other hand, is a condition that must be fulfilled before a duty to perform a promise in an agreement even comes into being. For example, “rights will be granted only on condition of receipt of full and timely payment” means no rights are granted unless the other side pays up in full and in time. That payment must happen first, like a trigger, that then makes the photographer grant the rights agreed to. Late payment means no rights granted means if the client has used the work, it has infringed.

So, in this one opinion, we get a bunch of reminders that photographers (and anyone making creative work and licensing it to others) need to do specific things to make sure they’re covered for all these situations, but if they do things properly, then the law is on their side:

  • Use written licenses.
  • Have language in your contracts and invoices that make it clear that payment is a condition precedent (ask a lawyer!).
  • Register your works properly (and in a timely manner).
  • Don’t be willfully blind to potential infringements then try too late to go after them.

Potential New Service: Feedback Wanted

I have railed against companies that are not run by attorneys but that offer “infringement enforcement”; but I haven’t really done anything about it. I mean, I continue to do the legal work I do, including going after infringers for my clients, but the process of searching for the infringements, flagging those for possible pursuit, etc., is not something I’ve been able to offer.

That may be changing.

I’m not making any promises, but it may be possible that I could have a service where you would upload your photos/visual works, get regular reports on the uses online, and then be able to tag those result for legal follow-up by me. This would hopefully reduce your time/efforts in finding potential infringements and keep everything in one place, so to speak.

I’m working with a developer now to see if this can be done, at a reasonable price-point (I’m certainly not made of money nor do I want to hit y’all up for big fees).

This is where you come in: how would you like this service to work? I have developed a little Typeform survey asking some specifics about this. I’d really appreciate it if you’d fill it out and let me know what would work for you.

I Bake Bread…Really Good Bread

The photo is of the sourdough boules I made last week. They are from scratch, from a starter I started months ago, and comprising nothing more than flour, water, and salt, including the starter.

I bake almost every week, never less than every-other week, and it has been a couple of months since we’ve purchased bread of any kind, except for hamburger buns once when we had a last-minute guest to dinner and I didn’t have time. It takes me all day to make the dough and shape the boules, which then have a final proof overnight and get baked the following day. It is a discipline and, for me, an exercise in mindfulness, presence, and perseverance.

I grew up cooking. I literally cannot remember a time when I didn’t cook. My mother was a gender traditionalist and, being the only daughter, it didn’t matter that I was substantially younger than my brothers–I had to cook for them, first with her then on my own, later. From my very beginning of my own consciousness, I remember being in the kitchen or the grocery. I actually have (and often use) the cast-iron flat small oval pan I remember trying to make pancakes on, by myself for the first time, when I could not have been more than five [1].

Mom was a very good cook and so am I, and I (like her) cook intuitively rather than by following recipes (see “there is fat in the batter” thinking in FN1… ha!). When my brother took cooking lessons as an adult he asked for my recipes and I could not give him more than a rough “some of this, a bit of that” kind of litany. Honestly, I don’t know how I make a lot of what I make–I just make it.

I’m one of those people who can look in a fridge and cupboards and, no matter how bare, will be able to come up with a couple of tasty “peasant food” meals. I learned this ability from Mom, and our poverty. It was a great tool for surviving college, grad school, and law school.

Anyway, Mom, for all her cooking, didn’t bake much and so neither did I. Basic cakes, yes, and the occasional cookie, but those are pretty forgiving if you stray from the recipes. Breads, though, require a certain scientific discipline she never could (or, perhaps, would choose to) grasp. I think some of it was because her mother was such a good baker that, just to be difficult, Mom chose not to follow Grandma’s baking tradition. My very Polish grandmother would rarely appear from the east (Wheeling, WV–we lived in Columbus, OH) but, when she did, it was always with paper grocery bags filled with enriched, yeasty, often raisin-filled, tasty baked goods. I can still remember the smell of her and it’s the smell of the goods in those bags. Sadly, we never baked together and thus bread making was fairly foreign to me. I wanted to learn so I did, later in life.

Cooking is like shooting photography–you can play a lot with and stray a lot from the recipe and still get good (sometimes great) results. Baking however, especially bread, is like traditional photo printing in the darkroom–you have to mix hard science with the art and if you stray too far from the science, you get crap results. In other words, you need to understand and respect the science of bread-making (yeast, heat, gluten formation, proteins, etc.) in order to make decent bread and to learn the science to the point of mastery to make really good bread.

For me, baking bread well is also like being a good lawyer: the more you learn about your particular field of law, the better you create. You have to respect the traditions, statutes, rules, and the processes, but you’ll make better lawyering when you have internalized how the law works so, for example, you can know the feel of that right spot in any of your drafting. Just as a Tartine sourdough loaf is to Wonderbread, so is a beautifully crafted document to a boilerplate one. When you know the specific law in real depth, you can find the hidden issues in a case and the winning legal points. It’s like learning how bread dough feels when it’s been worked enough or proofed right.

So why am I sharing all this? Because I think there is a lot of Wonderbread in my profession, especially in copyright law these days. I want you to know that is not what you’ll get with me. There are large firms who have a gazillion associates and paralegals who will take your case and treat it like it’s debt collection. They don’t know any more than the minimum about the law; they are competent, not obsessed. I’ve read the complaints and other papers they file and I don’t know how some of them can look at themselves in the mirror and call themselves “good lawyers.” I can tell you there has been more than one where I feared the client would get stuck with paying the other side’s attorney’s fees because the case should never have been filed.

Moreover, these massive firms won’t care why this particular image means more to you than another or look at the case in any depth, they’ll just do the minimum to get something and often not even remember your name. Worse, there are companies not owned or run by lawyers and so they care first and foremost about making their own bank, not you or your case.  But they’ll be happy to take about half, if not more, of your settlement for their efforts.

That ain’t me. I know and care deeply about the law and how it works. I’m a dweeb, a nerd; I read case law and journals not because I have to but because I love it. I’m a passionate lawyer and obsessively so about copyright law. I agonize over my drafting, the rules, and making sure the law I cite is the best for the issue. I file only a few cases at any one time because litigation is time-intensive and I refuse to take on more and maybe do any less well.

Also, I build relationships with my clients and I take pride in that. I know about their families and they know about me and those close to me. I know the history of the works they ask me to protect, whether that is a work made for a client or personal work, and why it matters. While I get paid (usually much less than the infringement mill companies, by the way), I also sometimes get gifts from my clients–usually their own art–and that is something that has brought me to tears more than once.

If you want Wonderbread, I suppose you may be satisfied with the big firms or infringement “enforcement” companies. You wouldn’t be a good client for me, then. But if you want a relationship with a lawyer–something more than just a form and a rotating list of associates for your cases–shoot me an email and let’s get to know each other.

You might even a bread recipe out of it.
Really good bread.

___________________________

[1] Sadly, they were a bit of a fail as couldn’t remember if you needed to grease the pan and I errantly decided that, since there was fat in the batter, I didn’t need to. Mom came in as I was trying to scrape off the first batch.

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.

_____________________

[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.

Talking about Death

Yesterday, I had a conversation with my father about his approaching death and his estate plan. He’s got terminal cancer and he’s 92[1] so, while he’s doing relatively well right now, the reality is that he’s going to die sooner rather than later.

Now, many people might think that sounds cold, but it’s not: none of us gets out alive, after all. I love my father and will miss him, but as a (bad) Buddhist, I know about impermanence[2] and accept it, including when it means accepting death and loss. I’ve been lucky to have my dad in my life for so long; my mother died when I was 18. If you look, you’ll find a (fake) quote from the Buddha on my site that sums it up: Impermanence is a bitch.

As a lawyer, regardless of my thoughts on impermanence, I know that estate planning is important. However, that combined with an acceptance of impermanence meant that asking Dad about his estate planning now, while he’s still doing well, was the right thing to do. That he was an attorney before retirement helped make it easier. These can be difficult conversations, but they are needed.

It’s one thing to think about estate planning for our elders, but the sad reality is that things can kill any of us, any day. If you haven’t planned for it, then when it happens you force your loved ones into a bunch of extra work and emotional hell. This is true even if you don’t have much of anything but, as a creative pro, you have more than you think: your copyrights are assets that live beyond you. You also probably have art on your walls or notebooks full of sketches or other objects that might not seem of financial value, but that you don’t want falling into the hands of, say, your crazy brother who has joined a cult.

There are many things that can be done to make that difficult time much easier: wills, trusts, pay-on-death accounts, life insurance, just to name a few tools. In some states, there are transfer-on-death deeds, even, for real estate. Basically, you can keep almost everything out of probate, if you plan appropriately[3].

Of course, I think getting the plan executed and all the tools in place is the best thing to do, but I think talking about this as soon as possible, with the people you love, is important. That can be done today. Ask people what they want and tell them what you want. At the very least, even if it isn’t leally binding, at least you’ll know that, say, your camping-loving girlfriend wants her ashes chucked off Mount Whitney rather than in the desert; then, if necessary, you can try to do that for her.

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[1]Yes, I am the youngest of my siblings and there is a gap. 🙂

[2]For more on impermanence: https://tricycle.org/magazine/impermanence-and-four-noble-truths/

[3]Here is some good info for Californians: http://www.calbar.ca.gov/Public/Free-Legal-Information/Legal-Guides/Estate-Planning. While a lot of that basic info may be the same in other states, the law is state-specific.

More Is Not Better

Contrary to the assertion of at least one copyright lawyer getting a lot of press out there, filing more suits is not better than filing fewer. Certainly, it’s not a valid metric for evaluating an attorney’s abilities. In fact, I’d say it’s not better on any level, except, maybe, increasing that attorney’s bottom-line.

I’m not saying that one should never file, but rather it should be a last resort, not a first (or second) salvo. Sometimes, you have to file suit; some people refuse to negotiate a reasonable settlement. Doing it right off or often though, especially in large numbers overall, is much more likely make things worse in the long run than give you a fast win.

First, judges notice. A plaintiff or attorney who is very litigious will raise the eyebrows of the judge or judge magistrate (JM). That is never a good thing. It can happen even when the total case count is small but still more than a couple. I was once in an Early Neutral Evaluation[1] where the JM said that she noticed that my client had (while represented by other counsel, I would note) filed “more than a few” cases before this one. Actually, the number of cases was not at all large, but she still noticed. I explained that my client’s work was often infringed and, when necessary, he’d filed to protect his rights. Whether the JM accepted that or not is not important here (she seemed to, though); the fact that she raised the question meant it was on her radar, and not in a good way. Imagine if he’d previously filed 20 or 50!

Attorneys have it even worse. Judges recognize our names more than you might expect and they do talk about us with their colleagues. I heard a JM talk about that at a recent event. Anyway, if you’re that attorney, no matter how neutral judges try to be, they’re going to have your litigiousness in the backs of their minds. It’s not a good look.

Not surprisingly, some people think that attorneys who file a lot of suits must be good, aggressive litigators. Well, those lawyers may be aggressive litigators, but are they good? I’d argue no. Time alone makes that impossible.

Litigation is time (and brain-power) intensive. There is no way an attorney can simultaneously handle many (much less hundreds of) cases in active litigation and do it well, not even with a bunch of support staff.

Right from the start, it takes a lot of time to draft a good complaint. Even if the attorney is working off a template of some kind (and, honestly, we all do), a well-drafted complaint must be detailed, present the facts of the case in a logical-yet-compelling manner, and yet still be concise.

It is storytelling in a way, but non-fiction (of course) and with technical limitations that make the process much harder than just filling in the blanks. That “storytelling” also happens after the attorney has already thought through the whole matter to make sure s/he is asserting all the claims s/he legitimately can (or should), has checked to make sure the filing is in the right district (there are rules about that), and also has tried to predict what defenses will be asserted, to thwart as many as possible. It’s not easy and it’s not quickly done.

Before the drafting starts, the attorney will also have to research the district’s local rules to make sure to follow them in the drafting itself (numbered lines? font requirements? caption format? etc.). While drafting, the attorney will have to fight with Word which, although the standard tool for lawyers, seems to hate line numbers and other legal oddities (I swear the chances of a photograph being inserted without glitches on the first try are less than 25%). Add it all up and the attorney will have spent hours and burned out many grey cells before even filing a thing.

Filing the complaint is only the beginning. If the defendant doesn’t immediately try to settle after being served (or waiving service) and you get into discovery, well, that is a whole different (larger) pile of work for the attorney: interrogatories and requests for admission and requests for production and depositions, plus responding to the same from the other side. It’s a ton of work, all detail-oriented (or it should be), and not something you can do (or should even consider doing) half-assedly.

In my own practice, I limit the number of cases in litigation that I will take on at any particular time because I believe it is my ethical duty to be present for each client, in each case, at all times. I would never send someone else to cover a hearing[2] unless there was an absolute emergency (and even then I would contact the court, first, for permission) or that attorney was already a part of the case (like, local counsel or other co-counsel). I research the law and double-check previously cited cases before including them in any filing to make sure I’m doing the best by each client I represent, in each matter I handle. And I agonize if I somehow miss a typo after proofing and re-proofing anything I draft. All of that necessarily takes time and attention and all good attorneys know and do that.

Importantly, here’s what “aggressive” attorneys aren’t likely making clear to their clients: the financial risk is mostly on them, I mean on the clients. If a copyright case is dismissed or if the plaintiff loses otherwise, then the plaintiff may have to pay the defendant’s attorneys’ fees and costs[3]. If an attorney doesn’t follow court orders, there is a chance a judge or JM will impose penalties or even strike entire filings[4]. Yes, attorneys may be sanctioned directly, too, but a lot of the penalties for bad acts fall on the party, not the attorney.

Especially since losing carries a significant risk of having to pay the other side’s attorneys’ fees, I think a good attorney owes it to her client to make sure the case is a strong one and truly worth filing before suggesting that step to her client. And a good attorney should do all in her power to get her client satisfaction without filing, if possible.

I don’t see how any of that can be done if one is filing hundreds of cases a year.

Finally, a client certainly can’t get personal attention and regular updates if the attorney has too many cases in litigation. One of the biggest reasons for unhappy clients (and malpractice claims) is a lack of communication by attorneys to their own clients. It’s your case–make sure to pick an attorney who will give it, and you, her full attention.

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[1]An ENE is like a mediation, but with the assigned JM on the case functioning as the “mediator.”

[2]See, Footnote 1 in this order, for an example of why this is bad: https://assets.documentcloud.org/documents/4404749/Reynolds-v-Hearst-Liebowitz-Bond.pdf

[3]17 USC §505 says that a winning party may get her/his attorneys’ fees and costs–that includes successful defendants.

[4]I had this happen in my very first litigated case as an attorney–the defendant’s attorney didn’t show up to two hearings then made a lame excuse so the judge threw out the defendant’s answer and my client won in a default.