Month: February 2006

Transparency

In the March 2006 issue of Fast Company Magazine (page 28), John Mackey – Charman, CEO, and cofounder of Whgole Foods Market, Inc says:

“When there are fewer secrets, there is greater motivation to do the right thing. That’s driving busines. There’s greater accountability, and more businesses are getting leadership that recognizes that we can’t hide.

So we better do the right thing.

I think this is part of a larger trend, toward businesses having a greater responsibility in sociiety than just maximizing profits. Customers want that, employees wnat that, and shareholders want that: They want businesses to be good sitizens. Businesses today have a too-narow concept of why they exist. Particularly with the scandals at the beginning of this century, historians will look back and see that business is being called upon to do more. It’s not an either-or situation — it’s not profits versus good citizenship. And right now, a new generation is becoming CEOs.”

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I like this quote because it pushs back at the legal system. I believe the reason short-term profits have been put at the top of the priority list is that short term profits are the only objective way for JUDGES to make business decisions when the leaders of businesses want to do different things. What is in the best interest of the shareholder – TODAY and ONLY TODAY – is relatively easy to adjudicate. What’s in the best interest of the stakeholder (people in the community, our children, ect. who don’t own stock) is a far more speculative experiment to determine. On one side, it makes sense to look at the needs of the community, or maybe even the needs of the shareholder in the mid- to long-term. But this gives a judge – who may be far more interested in keeping criminals off the streat than figuring out a corporate dispute – a lot of power and responsibility that she may not be qualified to handle.

I think the only real answer are:

1. As leaders, define the corporate mission in terms of values – not profits.
2. As investors, only invest in companies that have defined their vision in terms of values and pull your investment when those values are compromized.

Yes, that’s idealistic – but idealism is one of the things I value. 🙂

Ongoing Copyright Infringement

It happened again last week. I received a call from a Web designer (let’s call her “Jill”) who said her work had been ripped off. Jill had created a Web site (call it “site 1”) for an organization. This organization then needed another site with similar functionality, but instead of hiring Jill to do the second site (“site 2”), another person (let’s call him “Ted”) volunteered to build site 2.

Turns out Ted just copied Jill’s images and code (not even changing the file names) to make site 2.

Then I asked Jill the big question, “have you registered the copyright for the image and the code?” “No,” she answered in a dejected tone. I told her it was time to get that done and that she’s actually still in pretty good shape.

Now, many of you might be wondering why I would say that – especially if you’ve read my earlier post “$30 Insurance Policy.” One would think that since site 2 (the infringement) was posted before she registered her work, she not be eligible for statutory damages and attorney fees and be limited only to actual damages. In this case actual damages would probably have been a maximum of the fee Jill charged to create the first site – under $5,000.00.

The kicker is that an infringement occurs EVERY TIME someone loads site 2 into the RAM of their computer. Simply viewing the infringing site creates a copy and thus counts as an infringement.

The ACTION PLAN:

I told Jill to register her image and the code for the site right away. A copyright registration is valid from the day it’s received at the copyright office (assuming it’s a valid registration – but that’s another issue…). Any infringement that happens after the date of registration is eligible for an award of statutory damages and attorney fees.

As long as Site 2 (the infringing site) is live after the date of registration, thus infringing Jill’s registered copyright, she has the pieces in place to file a copyright infringement suit in Federal Court and if she wins (which is very likely in this case), she could be award enough money to make the whole process worth her while. Of course, the odds are that the organization, which is liable with the actual designer, and Ted would both remove the infringing site and pay Jill a reasonable sum before this ever hit a court room.

What Creative Clients Want

What do creative people need from their lawyer?

Trust

The #1 reason people hire and stay with a lawyer is that they trust the lawyer’s counsel. They trust the lawyer to help them reach their goals, help face their issues, and help solve their problems. This trust is built upon many factors, but rests on the knowledge that the lawyer understands the situation and cares about the people involved. Even if the issue or problem is business related, it is the people and relationships involved in the situation that truly matter. I work very hard to earn my clients’ trust, and always remember that legal issues always affect people.

Creativity

Creative people and businesses are trying to do new, different, and exciting things. They need lawyers with an attitude that says “here are the legal issues and risks – now let’s find a way to make this work…” instead of “don’t do that…” My goal is to enable your creativity, not set hurdles.

Responsiveness

The #1 complaint clients have with their lawyers is a lack of responsiveness and communication. I have been working with clients in various industries for over 15 years and have never been accused of a lack of responsiveness. If we’re working together you will know where things stand. I return calls. I respond to email.

Legal Competency

Legal competency is the minimum qualification to pass the bar exam and get a license to practice. There are hundreds of lawyers in the phone book that have obviously passed the bar. So what makes one different from the other?

Passion for the subject.

Before becoming a lawyer I was a graphic designer, art director, creative director, and marketing consultant. I have a passion for the creative industries.

Summary

My firm is dedicated to helping creative people, businesses, and organizations promote and protect their creative ideas and other intellectual property. My
background in the creative industry makes me one of very few attorneys that truly understand the creative spirit.

I’ll focus on the legal and business aspects of creativity: copyright, trademark, employment, licensing, business formation, business development, contracts, trade secrets, and free speech – letting you focus on what you do best – create.

My clients are writers, designers, producers, artists, musicians, photographers, entertainers, arts organizations, marketing firms, advertising agencies, architects, publishers, and other business with creative assets to promote or protect.

If it sounds like I’m the kind of lawyer you would like to work with, please call or drop me and email. I’ll be happy to talk with you, and don’t worry – there is no obligation or fee for the initial discussion.

$45 Insurance Policy

$45 Creative Insurance Policy

Creative people are always trying to save a buck. That’s not a bad thing unless it’s in the situation of deciding to save the $45 fee to register a copyright. If you think your song, art, design, or other creative expression is going to be exposed to the public in some form – and that your work is good enough that someone might “accidentally” be a little too “inspired” by your work (in other words: rip it off) – then the $45 is the best money you’ll ever spend.

Here’s why:

1. All copyright infringement litigation must be conducted in Federal Court – and to get into Federal Court you have to have a valid registration before you can even file. In other words, to enforce your rights, you have to file anyway – so you should file right after you’ve created the work in question.

2. If you file BEFORE the infringing action (before your work gets ripped off) then you are eligible to receive both “statutory damages” of anywhere between $750 and $30,000 per infringement (each song on a CD, each photo, etc. produced is an infringement) – and up to $150,000 per infringement if the infringement was “willfully committed.” Additionally, if the valid registration was filed before the infringing act, you can also collect your attorney fees.

3. If you DO NOT file before the action, then you have to prove your “actual” damages (which can be hard in many cases) and you have to pay your own attorney fees.

What does this really mean? Let’s say you would sell the rights to use a photo in a magazine for $5,000. Now, let’s say the magazine prints the photo without your permission or paying you anything in a run of 100,000 copies – willfully ripping you off. If you filed the registration before the infringement, then you could collect somewhere between $750 and $150,000 for each of the photo they used without permission (NOT for each copy produced) – plus your attorney fees. This is strong incentive for the magazine to settle with you before trial. If you had not filed the registration before the infringement, then you will have to prove the actual damages (in this case probably a max of $5,000) in Federal Court. You’ll have to pay your own attorney fees – probably at least $10,000 to take a copyright case through trial in Federal Court. So, they may have ripped you off, but you’ll be at least $5,000 out of pocket to enforce your rights.

Registering your work is easy. Just go to www.copyright.gov and download the appropriate form and follow the instructions. If you need help, call me.