The Business Rusch: Good Help
I am writing this blog while I am both hopping mad and absolutely dumbfounded. I have just had an interaction with a creative artist’s representative that has cost me at least a week of my working life, dozens and dozens of e-mails, and hundreds of dollars. This interaction might end up costing me hundreds more, but there is a distinct possibility that, in the end, I will make hundreds of thousands of dollars
All because of one person’s stupidity and ignorance of the law.
First, let me tell you that I’m writing this on the day that the most unbelievable stupidity occurred, the day that I am now turning everything over to my lawyer to handle from this moment forward. I am not publishing this blog for weeks, maybe months, maybe a year or more.
In other words, while I am writing this as if it happened this week (and for me, it did happen this week), you are reading this blog at a completely different time. I’m doing this so that the ignorant idiot I’ve been dealing with doesn’t know I’m talking about it (yes, I’m going to call the idiot “it” and its associates Frick and Frack will also be “it” or maybe “they”), because I think what happened here is a prime example of a teachable moment.
If I can divorce the moment from the details of what happened to me, and get to the core that applies to all working writers.
Here goes.
First, the personal experience—in vague terms.
There are many times in a writer’s career that she works with other creative artists—actual visual artists, screenwriters, comic book writers, translators, musicians, game developers and more—who develop derivative work based on the original property. These derivative works are governed by copyright law.
If someone wants to create a derivative work, that someone needs permission from the rights-holder for that work. The permission must be granted legally. There are different forms for the permission—a paper contract, an e-mail between the two parties, a user agreement on a website (fan fiction sites licensed by the copyright holder, like the ones for the Star Trek properties use this method) and so on.
Most sub rights sales are for derivative works. A translation of a novel into another language is a sub right sale, and it is also a derivative work because the words are different, but the story is the same. The work is a translation of an existing work; it is not the existing work. It was derived from it.
In the definition of derivative work under the copyright law, the statute says in part:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.
Once the derivative work exists, then the maker of that work needs the original copyright holder’s permission to do anything with the derivative work. If the Derivative Work Maker does not get the copyright holder’s permission, then the work of the Derivative Work Maker is dead.
Got that?
Long ago and far away, I worked with a creative artist’s representative who was also (briefly) my representative. I gave permission for a derivative work based on one of my works, to be used for six months only. My agreement was with the representative, not with the derivative work’s maker (DWM). I presumed that the representative had a separate agreement with the DWM, which also lasted for six months.
Nothing came of this, except that I made a great deal of money. Like so many things in the sub rights category, someone had a good idea, put some money into it, realized the project would not get off the ground, and went on to other things.
Fast forward several years. I get contacted by DWM’s new representative, who wants to send DWM’s old derivative work into the same marketplace again. I state that I will not permit this, unless we have a written agreement and money has changed hands.
The representative is shocked! Shocked! that I would demand funds and a legal agreement. Then I tell the representative that I have years of experience in all of the businesses this representative (whom we shall now call Frick) deals in, and if Frick wants any cooperation from me on this property, I need a legal agreement and money.
Frick makes an insulting offer. I say no. Frick promises to have a new offer shortly.
I hear nothing. Then I get a weird e-mail from Frick saying that someone else in the industry “is close” to paying me. I realize that Frick has been shopping this property without my permission and without an agreement in place. I demand that Frick come up with a legal agreement and money right now.
I hear from a person who identifies itself as a lawyer. At that moment, I assume said lawyer is attached to Frick and Frack, the representatives of DWM. Instead, I learned—today—that said lawyer represents DWM and doesn’t represent Frick and Frack at all.
Let me simply say that DWM should fire this idiot immediately.
Idiot lawyer is argumentative and nasty, refuses to deal with me by e-mail “because that’s not how it’s done in our industry” and demands to talk with my representative who, idiot lawyer believes, “will understand what I have to say.”
Well, I am now good and pissed, insulted, and on top of that, have three representatives are actively trying to sell a derivative work from my work without my permission. I tell them to stop marketing the work immediately. I tell them the negotiations have broken down and remind them that they do not have any rights in this work whatsoever without me. Since they are unwilling to pay for the privilege, they cannot market the work any longer.
Meanwhile, I’ve been consulting with my attorney all along. My attorney, appalled at these idiots, tells me to be firm with these people and make them go away.
I was, I am, and I get an astonishing letter in return.
The first letter, from the idiot lawyer, says that the representatives and DWM will remove all references to me or the title of my work on the derivative work, and will continue to market the derivative work.
My lawyer, appalled, tells me to remind them that this work is registered with the Copyright Office, and we will sue.
I do tell them this.
Frack contacts me, tells me that name removal is done all the time in their industry, and I shouldn’t worry my pretty little head about it.
I again in e-mail tell them they do not have the rights to this.
Why am I doing all this, and not my lawyer? Because my lawyer costs hundreds of dollars per hour, and I am already losing money on this. All I am doing is reiterating that I do not agree to anything and that these people do not have rights or permission to this work in anyway. I am doing so in e-mail, which is getting forwarded to my lawyer. We have a paper trail. I am doing nothing more complicated than that. I am saying this: No. No. No. No.
Then I get today’s astonishing e-mail, in which the lawyer—the lawyer—for this DWM says that they will continue to market this derivative work without my permission. I can let them do it or “prove that there are damages.”
Ack! Ack! Ack!
The idiot lawyer doesn’t know copyright law. I don’t have to prove damages. The damages are statutory, provided that the original work is registered with the Copyright Office, which my work is. I have actually informed these people of that fact. And to make it worse, copyright law states that if I can show willful infringement—which means that they knew the work did not belong to them and they infringed on it anyway—I’m entitled to even more damages.
Idiot Lawyer put on the fact that they were going to steal this property from me in his reply to my latest cease and desist e-mail. Which proves right there that they plan to willfully infringe on the copyright.
My lawyer is actually salivating. Should the derivative work receive any money at all for any reason, we have grounds to go after Frick, Frack, and Idiot Lawyer.
Unfortunately, we will also have to go after the DWM as well.
I am convinced that all DWM knows about me is that I am an unreasonable bitch. I am sure that DWM’s representatives have informed the poor schmuck that I won’t cooperate, but they have resolved the problem anyway.
For DWM’s sake, this derivative work had better not make any money. Because even if DWM gets a payout in very large figures, DWM’s representatives have guaranteed in writing that I will get a large portion of that payout ( if not all of it). They have done so with their stupidity.
Okay, I’ve gone on here much too long because I’m mad. But here’s the thing: for the last year or so, I’ve been dealing with other people’s representatives in one way or another. Sometimes it’s on my sub rights and derivative works. Sometimes it’s connected to other projects I’m doing that aren’t writing-related.
In most cases, when I have dealt with a representative of another creative person, that representative has cost the creative person money or has jeopardized a good deal. Or—and this is the most common—has negotiated worse terms for their client than the terms being offered.
Back when Dean and I were doing Pulphouse, kind little writer that I was, I would tell the representative not to ask for that or I would personally contact the creative artist and put a bug in their ear about their representation.
Part of the reason that Pulphouse had no assets to sell when we got in financial trouble was that we bent over backwards to be fair to other creative types. We had nothing to sell. I learned that lesson. Now I bite my lip and write posts like this.
People hire bad representation all the time. Let’s take this out of the realm of the creative for a moment. Every week, it seems, you see an article about some movie star or athlete who is suing their financial advisors for bad advice. Or you read in the paper about legal cases being appealed because of “ineffective assistance of counsel.” Yes, that’s a legal term based the Sixth Amendment to the Constitution. It means what it says—the case is being appealed because the lawyer for the defendant (usually) was stunningly, appallingly, provably bad.
Ignorance of the law, by the way, isn’t part of ineffective counsel or DWM could go after idiot lawyer for that. DWM just hired a lawyer who had the wrong area of expertise or is so arrogant that it never bothered to learn its job. (I vote for never bothering to learn.)
I have been in the same position as DWM almost every single time I’ve hired an agent (one exception only). I discovered only after firing some of them just how bad my representation was, and how much those people interfered with my career. None of them, to my knowledge, invited someone to make me party to a lawsuit like Idiot Lawyer just did, but note that I say “to my knowledge.” I’m pretty sure DWM doesn’t know that my lawyer and I now have a file on DWM that we are prepared to use when/if idiot lawyer actually makes good on its threat.
I was planning to write a blog on this during the month the events were going on, before things escalated, because this incident also marked the first time I’d ever experienced a reaction that Randy Tatano, who works as a freelance broadcast news reporter, mostly for NBC, described in my Freelancer’s Survival Guide . I’m going to reproduce it here (and note, Randy gave me permission to use this in the Guide and on this site):
Well, on the topic of hiring someone to negotiate, a news anchor I know hired an agent to negotiate her next contract. Her agent took such a hard line that management called her bluff and she ended up out of work. She had absolutely no desire to leave but apparently didn’t convey that well enough to her agent.
On the other side I was trying to hire an anchor once and the agent was so incredibly obnoxious I moved on to someone else. I was trying to negotiate and meet the guy in the middle but he wanted to play hardball.
What surprised me about these instances is that both anchors were extremely likable people, yet hired agents who were so difficult to deal with. And, as you pointed out so well Kris, anyone who negotiates for you needs to know exactly how you feel.
I am pretty creative-artist friendly. I like working with others, and I am willing to make a lot more concessions than I probably should. But Frick, Frack, and Idiot Lawyer so angered me that I didn’t give a rat’s ass about DWM. DWM could have called me and tried to talk to me about this problem, and all I would have said was, “Hire new representation, dude.”
That’s it.
I had never before been on the receiving end of a representative who was so slimy, so smarmy, so unlikeable, that I refused to do business with that person, no matter how much I wanted to work with the client. And that was before the Idiot Lawyer told me it would steal from me.
Well, I’ve been there now, and believe me, now I get it.
In the past, I had been the client of the bad representative. One of my agents caused similar problems for me. Several editors kindly told me that no one liked my agent. I figured good: that means my agent is tough. (sigh) Another writer (who I later learned had fired the same agent) pointed out that the agent had a new assistant every year.
As a person who has owned several small businesses, that should have been a red flag for me. The agent couldn’t keep assistants. But it wasn’t. I was lost in the myths that a writer needed an agent. And I believed this agent was a good one. Nope.
Well, not true. That agent still has a reputation for being a good agent. I don’t know where it comes from because those of us who have gotten rid of said agent know it is not true.
I am now making a lot more money on foreign rights than I did with any agent. I am making 100% more money for my Hollywood rights than I did with any agent, because the agents screwed up the deals. I am making 100% more money in audio and in a dozen other sub rights because I’m actually negotiating and making those deals as well.
Just this last week, I spoke to a writer friend, a New York Times bestseller, whose agent just sold audio rights to a company I’ve worked with. The agent got this writer the exact same deal that I got without an agent (and without a New York Times bestselling series), and will now take 15% of that same deal in perpetuity.
In other words, I’m getting paid more for doing the work myself. How much work was it? Three e-mails. Three. That’s it.
Is doing the negotiations myself worth moments like today? After all, an agent would have dealt with these idiots from day one. The problem is that almost every single agent I had (with one exception) would have given Frick and Frack the rights to this property for free, without consulting me.
That’s why Idiot Lawyer wanted to talk to my representation. Because I was a harder negotiator than any of the agents I had hired. What Idiot Lawyer didn’t understand was that had my lawyer been on the phone, the conversation wouldn’t have gone Idiot Lawyer’s way. At all. Because my lawyer works for me, and unlike all of those agents, my lawyer knows it.
Some people believe that if a writer has a six-figure or more deal on the table, then it’s okay to hire an agent for that one project to shepherd things from here to there, to use contacts to talk with the sales force, to manage.
I disagree. If a writer feels she needs someone to step in and do those things, then she might want to hire someone. But I see no problem with the writer doing that herself. It’s better to do so.
Why do I hold that opinion? Because of today’s experience?
No. Because of an experience I had with three different high powered agents. One had just gotten a Big Name client. I was in the agent’s office as the agent was consulting on Big Name Author’s new book title. The agent looked at me, grinned, and said, “Big Name always writes smut, so we want a smutty title for the book.”
“Smut” was not being used nicely here. The agent told me this to impress me with the fact that she had better literary taste than this, but the “smut” made money. Besides, Big Name did not write smut. Big Name wrote urban fantasy with some sex in it.
I figured that agent was being chummy with me, a client, but the moment rankled. And then got worse as another person came into the office. “What do you think of this title?” the agent asked the other person. “Is it trashy enough to appeal to Big Name’s readers?”
Breathtaking. I left that office wondering what nasty things the agent said about my work behind my back.
Here’s the second incident: I met with the president of a boutique agency. That president only had two clients, neither of whom were me. I was with a different agent in that agency. The president was exceptionally rude to me, essentially telling me that I wasn’t a client worthy of her time, and then told me to leave.
At the time, my 15% paid for two of the in-house employees at that agency, plus benefits.
I left all right. I left the agency entirely.
Finally, a (not-so-dumb) assistant of an agent I hired mailed me the cover letters that had gone out to editors with my latest novel. The agent said point-blank in those letters that my work wasn’t up to snuff, but I had forced said agent to mail the work anyway. Agent was sorry for bothering the editor with it all. Implied in the letters? Please reject so that I can get my client off my back.
This was not some random small-time agent. This was another big name agent at another big name firm.
The damage done to my career by the people who theoretically “managed” or “handled” my career was astonishing. Even more so when you figure they had an economic interest in doing well.
But I’ve only seen more of this kind of thing since I started the blog. So many writers have sent me agency agreements or told me stories of things they discovered that their agents had done wrong.
I recommend attorneys to handle negotiations or at least review legal agreements. But the person I had the most trouble with today was a lawyer—and it was awful.
How do you make sure you have a good one?
First, realize you’re hiring your lawyer for a single job only. Some lawyers are good negotiators. Some are good litigators. Some are good at reading certain kinds of contracts. Some are good at estates.
Hire the lawyer for the job that you need, and make sure that lawyer has an expertise in that area.
Clearly Idiot Lawyer didn’t know copyright law or Idiot Lawyer wouldn’t have written half the things it did in e-mail. Idiot Lawyer also did not copy its client on those e-mails, another no-no in my book.
Second, learn as much about this stuff as you can so that you can make an informed decision when you hire a representative. If you don’t think you’re good at working with people, if you don’t want to liaison with your traditional publishing house on your six-figure deal, then make sure you hire a good person for that job only for a flat fee, and fire that person if they don’t do a good job. Trust, but verify. Make sure they’re doing the job you want by checking with the people they’re supposed to be working with. You’ll hear if things are going badly.
Third, you license copyright. If you don’t know what that means, if you don’t understand why my lawyer is so happy about the paper trail above, then get a copy of the current Copyright Handbook right now. Now! Don’t delay.
Finally, if you end up having success in this business, you will have to hire lawyers, accountants, managers, and all other manner of people to work for you. Hire them when you absolutely need them on an hourly or flat-fee basis. Do not hire them when you start out. If you haven’t made a dime as a writer, why are you hiring an agent for a percentage? Don’t bring your best friend from college in on any deal because he went to law school. He might have studied to become a real estate attorney and he knows nothing about publishing or copyright or anything else. Lawyers, accountants, managers and all other manner of professional service people specialize. Hire the right person for the right specialty.
DWM clearly did not. I’ll wager DWM got Frick and Frack and celebrated because they took him on. I’ll also wager that DWM never researched Idiot Lawyer either. If DWM knew what Idiot Lawyer was writing in DWM’s name, well, I would hope that DWM knows enough to realize that Idiot Lawyer just threatened to steal my work and dared me to stop him.
But I wouldn’t bank on that. I can almost guarantee you that DWM knows nothing about business or copyright or anything else associated with the freelance work DWM has started to do. There are too many signs that DWM knows nothing—the same signs that twenty-something me was giving off before I realized that I had to monitor my representatives, before naïve me realized that representatives could do bad things or not even try.
Once again, I’ve been confronted by the school of hard knocks. Only today, it’s the potential hard knock that will go to DWM and I will not hesitate to deliver that knock if need be.
It’s sad.
But DWM hired bad representation, doesn’t monitor said representation, and has no idea what said representation is doing in DWM’s name.
I’ve been there. I escaped.
I doubt DWM will.
I hope you all will be more sensible than both of us. And realize that you’re not playing a game here. You’re not just trying to be published or trying to get the best deal or trying to get noticed.
You’re also dealing with contracts and copyrights and courts and things that could have a lifelong impact on you and your family.
Keep that in mind whenever you bring anyone new into your business. Particularly if you ask them to represent you.
“The Business Rusch: “Good Help” copyright © 2013 by Kristine Kathryn Rusch.
74 responses to “The Business Rusch: Good Help”
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I know this post and this discussion are weeks old, but I just saw it and wow – I cannot believe the balls of some people. To blatantly tell someone they’re going to steal their work and try to profit from it is boldness on a level I’ve never before seen. I’m filing this info away in my mental database for future reference on how to handle something like this in the mature, professional way in case anything like this ever happens to me (I pray it doesn’t, but you never know so best be prepared).
Thanks for posting, Kris!
There are many good points in this post and they have been well discussed in the comments. I’d like to re-emphasize one point in particular. Register, register, register. And not just so you can recover statutory damages.
I practice copyright law and regularly lecture to artists, writers and film makers on basic legal concepts, especially beginners who may have no money to hire lawyers. If they have registered their work before it is infringed, not only are statutory damages possible, but so are attorneys fees. If an artist or writer comes to me for representation in an infringement case, I might just take that case if the work has been registered, because I have an opportunity to get paid even if the artist/writer can’t afford to fund federal copyright litigation. Pro bono representation is not the answer for professional writers and artists. The fee shifting provision in the statute is part of the answer.
Having the registration completed before infringement takes place gives the writer another weapon in the arsenal to protect the work. It’s important that the individual author know her rights and exercise them, either on her own or with a trusted legal professional. Sadly, I am not surprised at the behavior of IL. I am glad that the episode has been opened here for discussion.
Thank you, Kathryn. I forgot about attorneys fees. That’s a very important point. Thank you for adding it.
Kris,
You and Dean have mentioned this before, multiple times IIRC: Learn about copyright law. And get a copy of Stephen Fishman’s book “The Copyright Handbook, 11th Edition” from nolo.com.
BTW, Nolo has a lot of other info and books on IP and other aspects of law. Their website is well worth checking out.
Also, Laura Resnick has a list of recommended IP literary lawyers on her website, LauraResnick.com, in “The Writer’s Resource Page” subpage.
Hi Kris:
You’ll be very interested in the story of John Gile and his book The First Forest. The National Wildlife Federation printed 550,000 copies without his permission and changed the ending, also without his permission. He took them to court but it cost him thousands of dollars. See http://www.jgcunited.com/writers.html and http://prfamerica.org/speeches/9th/SuccessfulCopyrightDefense.html.
Oh, my, Eric. Thanks for this.
Wowsers! Talk about one clown short of a circus! I’ve worked at a Patent/Trademark law firm and I guarantee you that every one of my sharks (down to the 1st year associates & the paralegals) would have been salivating at the idea of taking IL apart. I do hope your attorney got the chance to explain the facts of life to them all. The Idiot really was a lawyer, wasn’t it? I’d hope the client at the center of this farce sued them all for malpractice, but I’m afraid they’re probably related.
Yeah, I’m guessing family or college friend. Given how young IL sounded in e-mail, I’ll wager college friend. 🙂 Thanks, Dafaolta.
Just happened to be reading this wickedly informative post and although I’m not involved with the legal field in any way, just a newbie writer, about the only thing that I can say about Idiot Lawyer and associates is a derogatory phrase that I use a lot where I work (state guv’ment) to describe the middle & upper management that runs my particular agency:
Smartness abounds.
Wonderful work as always, Kris.
The only slight nitpick I have is with the sentence, “Once the derivative work exists, then the maker of that work needs the original copyright holder’s permission to do anything with the derivative work.”
This is almost, but not quite, correct. The creator of the derivative work has copyright in (and therefore control of) the original content in the derivative work. Usually this is a distinction without a meaningful difference, because the original content and the licensed content are typically inseparable in a derivative work.
However, in those rare instances where the licensee wishes to make further use only of his original content, he does not need the licensor’s permission.
Consider the case of fan fiction. Some authors (e.g., J. K. Rowling) have given public permission for fan fiction within certain parameters. One of Rowling’s parameters is that the work be “non-commercialised [SIC] (i.e. not for sale.)” It is also true that some of the better fan fiction authors (such as the writer who calls himself Antosha) write fics which are almost entirely original — they employ the Harry Potter settings and characters, but could have been written as complete, satisfying narratives without those elements.
Now imagine that Antosha executes a Fifty Shades of Grey maneuver: he takes one of his fanfics, eradicates any reference to the Harry Potter novels (e.g., he re-sets it in a future where technology rather than magic is the novum, and erases any resemblance to the HP characters), and publishes the fic as a free-standing (for profit) novel.
The original derivative work (the fanfic) was within the license originally granted. The second-degree derivative work (the novel) does not require Rowling’s permission, because it employs only the original elements of the first-degree derivative work.
This is, as I say, a nitpick. I only bring it up because of the (italicized) word “anything” in your statement above. It would also be possible, in the grant of a license, to extract a promise from the licensee not to resell the original content in the derivative work. In the case of your own grant of derivative rights, you wisely limited the licensee to a certain time period, and therefore anything beyond that time period would, indeed, require your permission.
Of course, it’s not legally certain that fan fics are derivative works, rather than transformative fair uses. But assuming that they’re derivative works, this would be the result…
Derivative work and fair use are not mutually exclusive in US law. “Fair Use” is a defense to an infringement.
You’re right, of course, Ken, and I knew that (but was too pissed to add it). In the work-for-hire trade, we call it “filing off the serial numbers.” 🙂 It’s a good nitpick–if writers understand how much of a minefield filing can be.
Thanks for an interesting and informative article. I hope you let us know of the eventual outcome!
A propos of your book Dealbreakers, which I would dearly love to purchase, could it be made available as an ebook? I live in Europe (though I write for US publishers) and I’d love to read it. Shipping it across the ocean would be wildly expensive though, and time consuming. Please please offer it as an ebook!
best, Elizabeth
It is available as an e-book, Elizabeth. I just link to the print books because my associates account does not give me a percentage of the e-book sale. So search through your Amazon store (or iTunes) and you’ll find it. 🙂 Enjoy!
O/T (I’m sorry!) but it’s something I thought would raise the hackles. It’s also depressing that allegedly smart people still think like this:
http://www.guardian.co.uk/books/2013/jun/06/john-green-never-self-publish
My first thought was “pyromaniac in a field full of strawmen”.
Yeah, I’ve seen this. You’re the third person to send it to me. 🙂 People are entitled to their opinions….
It’s always nice to tell readers they’re not important. What a wonderful business move.
I also think that, as a young adult writer, he did himself a lot of good by giving an expletive-laced speech to booksellers. 🙂
Just, wow. Especially the bit about IL effectively admitting they would willfully infringe.
What makes this easy for me to believe is that just this morning I was looking at an industry news summary (not publishing but cable/sat TV, my day job) which mentions that Dish was awarded $12.6 million (yeah, 8 figures) in a malpractice suit against a Houston law firm who bungled some litigation they had represented Dish in. Sometimes people, even lawyers, screw up big time.
Disclaimer: I am not a lawyer, but my day job is working in the marketing department of a large international law firm.
We are not permitted to say that attorneys “specialize” or are “specialists” in an area, nor that they have “expertise” or are “experts” in an area in website or other marketing material. Those words specifically. They are considered by state licensing and ethical entities to be too squishy and subjective and non-quantifiable. We get around this by saying they have experience (or significant experience, or years/decades of experience) in an area, and also encourage the attorneys to make lists of the matters and cases they have worked on, preferably with the outcome of the matter in specific language such as “Settled for $reallybigsum” or whatever. We are also not permitted to say a case “settled successfully” because a settlement by its nature is a “success” for both sides, as they meet somewhere in the middle–we are encouraged to get them to be specific in what they did. In any event, we give as much non-subjective, quantifiable information as we can and allow the reader to draw his or her own conclusions.
Some states are stricter about what they let attorneys claim on the Internet–law firm websites are considered attorney advertising, and those rules apply. Because the firm I work for has clients all over the U.S., we endeavor to adhere to the strictest set of laws–I believe that is Florida. So if you are hiring locally, an attorney may not have to adhere to the very strict rules (or may not care about them). But I thought this might be useful information to those vetting attorneys to hire. They may not be able to claim to be a specialist or expert. Look for specific information about the work the attorney has done, and not so much unquantifiable claims. That’s my advice, anyway.
I wonder if Idiot Lawyer thought it would be okay to threaten you with shopping the work without permission because you wouldn’t have the wherewithal (money, legal representation, lack of intimidated-by-lawyerness) to fight back?
Every lawyer I’ve worked with, Mags, has said that they would be happy to handle x case or x contract, but would point me to another lawyer in the same firm for y case or y contract. “I can handle it,” the lawyer I contacted would say, “but you’d be happier with this lawyer. She’d do a better job.” Law firms themselves specialize, often, and won’t handle certain cases. Large firms will have family law “departments’ (each law firm calls the department something else) or “estate planning” areas. Sometimes you hire the law firm, and sometimes the lawyer.
All of this is a very long way of saying, yes, Mags is exactly right. A lawyer will rarely tell you he specializes in something, but if you listen, he will tell you (if he’s good) what he prefers to handle and what he’d be more comfortable having someone else handle.
As for IL, I think it expected me to cave, and when I didn’t, it got mad. I suspect it’s because I’m a writer, and writers usually do this kind of negotiation through representatives. I got a very real sense that IL did not believe I had a lawyer because I didn’t immediately give IL the lawyer’s information or number.
Let me say this: Most everyone I work with on subrights believes me when I say I handle this until I need to bring my lawyer in, and works with great respect. Many of the people I’ve worked with will chuckle and say, “I do the same thing.”
IL is an outlier, for my experience with lawyers. For agents/managers, IL is a great example of how they treat writers. IL believed I was an idiot from the moment it contacted me and continued to treat me that way. Agents/managers almost always do the same. Even when I’m the person they’re trying to sell something to. It’s really disheartening, to be honest.
Mags, thanks for the comment and the explanation.
Actually there’s a rule somewhere in the Model Rules of Professional Conduct that forbids us from saying we are specialists, except in the area of patent law, where separate licensure exists.
This is different from the medical profession, in which there are separate certifying boards in the various specialties (pediatrics, surgery, endocrinology, etc.) and where it’s therefore possible to certify that one is a genuine hematologist.
Thanks, Ken. Which explains why lawyers say they prefer to handle some things and not others. It’s a sideways way around that rule. 🙂
Many, many lawyers I know call in other lawyers to “assist” on things they don’t know. Often the other lawyer will do most of the work there, and the first lawyer will liaison with the client. One of my dear friends never went to court. He always hired someone else for that part, and believed he had already done a bad job if the case ever did go to court.
(This post makes me realize I have too many lawyer/judge friends [sigh])
OK, this is how BAD Idiot Lawyer is. I’m not a lawyer. Never been to law school. I’m a computer programmer, a beginning writer, and an amateur game designer. And when you wrote…
…I said, “Oh my god, they’re toast!” My meager exposure to copyright law in game design told me that they just gave up the smoking gun. If I knew that, Idiot Lawyer should be ashamed to even bill for copyright work without knowing it.
Kristine, I would like to post this on several groups on LinkeIn. Unfortunately, your “LI share” button prevents my doing it. I have _no idea_ where it would post it. This deserves *wide* spread circulation. I sharing it on FB, with my comment for any business owner, artist, or writer to 8rewad it.*
Also, I suggest you contact the Bar association in the state(s) Frick, Frack, and IL are in. That will shut them *down.*
Thanks for sharing a horrible experience, for the benefit of the rest of us. My respect for you is now much higher, (was already high). I hope it has been settled to your benefit, even if it was unnecessary. Sigh. Hydrogen is NOT the most prevalent substance in the Universe, Stupidity is.
Thanks, Walter. I’ll check on the Linked-in share. And yeah, hmmm. Bar. Yes. I’m amazed I hadn’t thought of that. 🙂
Well, if this doesn’t serve as a cautionary tale, I don’t know what will. My brain is still rattling from all the head-shaking I did while reading this post. 😀
Well, Kris, as an attorney who practices in the area, I think you’ve hit this one out of the park.
Thank you. 🙂 Good to hear.
“In other words, I’m getting paid more for doing the work myself. How much work was it? Three e-mails. Three. That’s it.”
Talk about putting things into context. It makes no sense, whatsoever, to pay 15% forever for such little work. And I know this is not always the case, but if you think about how long and hard you’ve worked on your story, it kinda feels unethical for someone to want to take 15% forever for doing what effectively amounts to correspondence only. Of course, this is a generalization, and I know one should judge it on a case by case basis. Still, the principle seems the same.
A note about lawyers cc’ing clients on emails to third parties. The practice at the office where I work is not to cc a client directly, but to pdf the email the lawyer sends to a third party, then send a separate email from the lawyer to only the client (and nobody else) attaching the PDF.
Why?
Well, how many times have people hit “reply all” instead of “reply”? If the lawyer has a client who’s careless and hits “reply all” to respond to the lawyer’s email, third parties become privy to attorney/client communications, which basically busts the attorney/client privilege wide open. So to protect our clients, we don’t give them the opportunity to make that mistake. (Life was so much easier in snail mail only days.)
So Idiot Lawyer may have been sending copies of his emails to you to his client and you’d never know. I kinda doubt it though, given everything else Idiot Lawyer did wrong.
As a side note, it’s a good practice when emailing your own attorney not to cc anyone else in the same email, like an accountant or an assistant. Not that this is legal advice or anything (insert Passive Guy’s standard disclaimer here) but I’ve seen legal strategy emails between a client and his lawyer admitted as evidence because the client cc’d an email he sent to his lawyer to the rest of his non-lawyer team.
Great points, Annie. Thank you. I will add that Idiot Lawyer always copied Frick & Frack on the e-mails, but never DWM.
Unless, of course, IL *bcc’d* DWM. But it doesn’t look like IL is very smart, so I doubt it happened. The fact that he cc’d F&F certainly helps your case, as F&F can’t deny that they “didn’t know.” Again, not very smart on IL’s part.
Kris: brilliantly informing – thank you. LT
Oh, I need to get off the computer. I just spent twelve minutes yelling at a lawyer who represents ME, after he spent twelve minutes arguing the other lawyer’s position. I have a written agreement with the other party and his lawyer’s mad we ‘cut him out of the deal.’
Sometimes I hire such wonderful people and I think my judgment is sound. Other times, I get crap. My muse and my pocketbook can’t take it.
Jinni: I think I understand why your lawyer was arguing “the other lawyer’s position”. Lawyers, like most people, form bonds with people they associate with, which sometimes are stronger than the ones they have with the people who pay their bills. In much the same way agents form stronger bonds with editors & publishers than with the writers who pay their salaries.
(Note that I am explaining this, not defending it. If I were defending it, I wouldn’t add the following paragraph.)
Now unlike when you have a problem with a literary (or creative artist’s) agent, there is someone you can complain to about a lawyer whom you don’t think is representing your best interests: the state bar. And while the lawyer may not be sanctioned for this, they do investigate. A good lawyer who made a mistake will take the investigation as a clue-by-four between the eyes & learn, while a bad one will get another check mark against his name as a warning to future clients.
Just a thought.
You’re the second one to mention the bar, Geoff. I can’t believe I missed it. I normally do things like that. I think I was so shocked at the behavior that I didn’t think of all of the options. Only my options. 🙂
Wow. Just wow. Once again, thanks for sharing the benefits of your experience, Kris.
Kris,
This. No other words are necessary.
I’ve donated.
Since you wrote this sometime in the past, has there been any resolution to it?
Craig
Kris,
Are you posting this now because the case is over? Or because you now own a slimy lawyer’s home and car? Or because enough time has passed that it should be unrecognizable? Inquiring minds want to know the end of the story.
Or has this just faded away because nothing came of DWM’s representatives’ negotiations?
“How do you make sure you have a good one?”
Since I have worked with an attorney for my writing business for more than 6 years, a fourth suggestion I can make about this: Make sure you’re being included in or CC’d on every discussion.
(I don’t have to insist on this, since it is my lawyer’s preferred way of working, and she reminds people she’s corresponding with to cc me in their communications with her if they forget. But the need to be included in all exchanges is something you can easily clarify with your attorney. And if they DON’T comply or argue against it, that’s probably your cue to stop dealing with them and go retain a different lawyer.)**
So I =see= what my lawyer says to everyone on my behalf, because I am always cc’d on it. I =see= how she interacts with my business associates and exactly how she represents me in her communications with them. I know exactly what’s going on and what my lawyer is saying with regard to any of my business matters that she handles.
I was not accustomed to this with literary agents (I had 4 over the years), who were inconsistent and idiosyncratic about whether/when they included me in negotiations and discussions. They were also openly exasperated and annoyed, or else just prone to ignoring me, if I asked to be included when I was being excluded.
My lawyer mostly prefers to do things in writing, and the few times she’s preferred to use the phone (as the Idiot Lawyer in Kris’ anecdote did) it was specifically because someone she kept emailing on my behalf wasn’t responding or acknowledging, so she wanted to try to get them on the phone to move forward (this was in an instance where a publisher was infringing my copyright and was evidently hoping if they were uncommunicative enough, I’d just give up and go away). Because of our well-established relationship, I felt confident I knew what she’d say when she phoned them, so I didn’t feel a need to hear the conversation.
However, in other circumstances (a lawyer you don’t know well, a complicated situation where the phone call will consist of more than “ANSWER MY EMAILS,” etc.), figure out a way to be included if there will be phone negotiations–such as being conferenced in to listen. Alternately, ask for a post-call memo to be exchanged between the aprties and cc’d to you, verifying everything was discussed and agreed in terms of moving forward on the matter (or not).
**There is one instance where I do NOT review my lawyers emails. She deals with one of my former literary agents for me, who remains a thorn in my side YEARS after I terminated the associations, and who is very difficult to deal with. I’ve reached a point where I find the agent’s emails so pointless infuriating and idiotic, I don’t even want to see them–I KNOW what this jerk says, it hasn’t changed in years, apart from becoming even MORE specious and ludicrous. So the way we work on dealing with that agent is that when something new comes up, my agent composes her opening letter to the agent, runs it past me, then shields me from all their interaction, just reporting the result to me. This is specifically at my request, as I said, to avoid even having to “hear” that agent’s voice YEARS after I fired this person and really really want “it” out of my life, for chrissake.
Oh, and P.S. how do you KNOW you’re seeing everything? Well, as Kris notes, you have to pay the lawyer for any time they spend on your business. And the lawyer’s bill to you has to be itemized, accounting for their time.
When I get my legal bill, I know what each item on there was for. If I think, “Whoa, when did I ask her to do thirty minutes of work in April?”, I can check my email account for those dates and remind myself what interaction we were having or what I’d asked her to do.
If you find time on your bill that you can’t account for, ASK about it. (But try to keep good records, since your attorney will probably start charging you for the time they ahve to spend explaining their bill to you, if you ask after every item on it every time you get a bill.)
IOW, unlike an agent, whose commission-based fees mean they don’t track or account for their time, it should always be clear in your bill exactly what your attorney was doing on your behalf when charging you for that work.
This doesn’t mean your attorney can’t possibly make snide jokes to your editor or devalue your work to him, but it sure as hell means your attorney won’t be getting PAID to do that, and will instead bf doing so on her own time (which is unlikely since, unlike agents, the attorney doesn’t develop a relatioship with the editor, only with the paying client).
I find that putting a clause in the contract specifying that, and that failure to abide constitutes willful nonperformance on the agent’s part, tends to be an effective memory jogger….
Documented or it didn’t happen should be your first rule on contracts and other legal matters. Along with Lazarus Long’s reminder about appealing to self interest rather than better nature….
Wow, that’s an eye-opener of a post. Especially for me: I work for a law firm, and have seen quite a few litigators. Many are nasty, manipulative a$$holes, but even if they are twisting the nuances in it, they all know the law. Not like idiot lawyer here.
(It might help I work in a field where high eight- or nine-figure judgments are common. With that much money in play, clients will spend mid-seven figures for the best and brightest attorneys).
Are you going to Worldcon this year? If I see a new sports car with Oregon plates, I’ll know something you did with those hundreds of thousands of dollars 🙂
No Worldcon, I’m afraid, Raymund, but not because of $$. Because I’m not doing events this year due to health reasons. 🙂
Wow. A very good reason for registering your work with the copyright office. I’m appalled at the number of “professionals” who insist to new writers that it’s not necessary to register your work if you self-publish. If this work wasn’t registered, Kris, even though it’s “protected” by copyright, how different would the outcome be?
Remember, I am not a lawyer nor do I play one on TV. The difference is if it weren’t registered, as I understand it, I wouldn’t be entitled to statutory damages. However, I can register up until the day before I take the case to court. Damages differ, though, and real lawyers who understand this can speak to it.
You can’t really bring a case at all without a registration–it’s the key to the courthouse.(You can file a case, but you’d better expedite the application or you could find yourself in a pickle)
You must register within 3 months of the date of publication in order to be eligible for statutory damages. This is very ciritcal–put it in your publishing to do list. I try to file my applications within a month of publication after I have received and approved my print proofs (which I can then use as deposit copies).
I should add, in my production workflow, I complete and publish the ebooks, I then turn to formatting the print edition. I use the print edition for my copyright application deposit, but I claim a first publication date of my ebooks.
I do this because the copyright office has a requirment that the “best edition” be submitted as a deposit, which is presumed to be the print edition. The copyright office also still does not, at least since the last time I checked, accept epub or mobi format (even though it accepts virtually everything else, including adobe pdf and other esoteric and defunct file formats). I hope they change the best edition rule soon and add epub or mobi to the list of accepted formats–they are way behind the curve on that front.
If I have an ebook-only edition, I use my smashwords words file, converted to pdf, as a deposit copy.
Just FYI, I got a response from the copyright office when I sent in my last deposit copies that they prefer not to receive proofs. They also seemed to be completely confused by ISBN-10 and ISBN-13. This was all news to me since I had never had any issues before.
Godd advice on the ebook/paper edition dates. Use the earliest date.
Intersting, Will Overby. I haven’t received such a compaint myself. I can’t remember if I provide the ISBN number or not on my applications. I’d have to go back and look. I may skip providing the ISBN number entirely.
Josh, the copyright law states you must register in a timely fashion for statutory damages. Within 3 months of publication or before the copyright infringement begins. So three months is not an absolute to get statutory damages. However, if you did not register three months after publication or before the infringement, you are not entitled to statutory damages, although you are still entitled to damages. (Just not ones set by statute which SPQR explains farther in this stream.)
Your method is smart, and efficient, however. And is probably the way to go.
You can’t control when someone is going to infringe your work–you can control when you file, though. File within 3 months of publication and remove the uncertainty.
Without statutory damages it may not be worth bringing a lawsuit and it may be difficult (if impossible) to find an attorney who might take the case on contingency.
Don’t compromise your rights–file witihn 3 months like clockwork. Make it part of your workflow and cost of doing business. It’s $35 + deposit copies and postage if you do it yourself.
Would you forgive an interjection?
To oversimplify, in copyright law, for an infringement you can get damages measured in actual damages or profits. But if you can’t easily prove what your damages were, either in money you lost out on, or in profits that the infringer received, then the copyright act gives one access to “statutory damages”. Again, oversimplifying, with statutory damages, you basically convince a court to pick a number that can go as high as $150,000 per work infringed (not per copy) for willful infringement.
And as mentioned above, statutory damages are only available for registered copyrights. That’s because to join the Berne Convention, Congress had to remove the requirement to register but still wanted to encourage it.
Please do interject, SPQR, especially on legal things. As I said many times, I am not a lawyer or a specialist. I’m just an interested layperson. So corrections and additions are always, always welcome here.
Kristine, an experienced interested layperson. Frankly, your original post would make a great case study in any good law school clinical course.
LOL. Thanks, SPQR. 🙂
There are several fine points here, but most of them do not actually affect this situation.
(1) For statutory damages to be available, the effective date of registration must precede the date of the infringement. That is, if the registration is effective on January 1, 2014, infringements that began on November 15, 2013, would have only actual damages available.
(2) The “90-day rule” is for “relation back to publication date.” It is not a bar to registration under the 1976 Act (like it could be for certain kinds of works in certain circumstances under the 1909 Act). If you file the registration application within 90 days or less after publication, the effective date of registration will be the date of publication (not the date the application was filed, which is the ordinary effective date of registration).
(3) Just because statutory damages are not available does not mean there are no enhanced damages available. Unlike statutory damages, enhanced damages for willful infringement are available for any registered copyright.
(4) There’s one other remedy that’s available that’s REALLY a fun one to cram down the throat of arrogant infringers: The equitable combination of seizure and injunction. Basically, Our Gracious Hostess could not only get money… but she could have every infringing copy seized (and sell them herself, or build fires with them, or whatever) and issue an injunction against every party that participated in the infringement. Then, if/when any of them violate the injunction, that can get turned into contempt of court… <vbeg>
(5) The key point is this: Lawyers are specialists. The Bar makes it an ethics violation for almost all lawyers to acknowledge that (indeed, calling oneself a “specialist” in writing violates a specific ethics rule, excepting only admiralty and patent law in most states!). It is quite clear that Idiot Lawyer was not a specialist in copyright (or any other kind of intellectual property law), or in litigation.* It is highly probable that Idiot Lawyer was not even in entertainment law, because enough copyright would have rubbed off over even a few months to avoid the kinds of errors described here.
(6) Registering one’s copyrights is much easier than it used to be. That said, with very rare exceptions it should not be done until on or after the publication date. For example, ARCs do not meet the standard for the two deposit copies; you must have the actual “best edition on date of first publication” available. That way, the Library of Congress gets its two free copies for its collection. (Yes, that really is what happens.) Those rare instances almost always involved blockbuster-like media/gaming properties, and there’s a special procedure for “preregistration”… which should only be done by a lawyer after careful consideration anyway, since any benefit you may gain with an earlier copyright registration date may be outweighed by trademark, tax, and other issues.
* He/she may have been a specialist in being an a**hole, but that’s far from unique.
Thanks, C.E. Good fine points. And yeah, it was clear to me that IL did not know entertainment or copyright law, although IL thought it did. 🙂
The agent said point-blank in those letters that my work wasn’t up to snuff, but I had forced said agent to mail the work anyway. Agent was sorry for bothering the editor with it all.
Damn – and she/he/it was supposed to be on your side?
All of these horror stories about agents – including Laura Resnick’s comments about her Agents From Hell – it makes you wonder why anyone would want one.
The Copyright Handbook is on my Wishlist now, though I know I should’ve picked it up a long time ago. But I’ll rectify that situation soon enough.
Thanks as always for a great post.
Yeah, that part annoyed the **** out of me as well. Just unbelieveable. It would have taken nothing for them to just send out a standard query, and possibly get a sale. And instead they do that nonsense. Just…, just…. I’m thinking these agents have no work experience in the world outside of publishing.
Nancy, the problem is that lots of times the agent doesn’t work for you only. He work for the people whose business relationship he values the most. That probably is not you.
For example, if the publisher will blacklist all of her clients because she takes a firm approach for you, she isn’t likely to carry out your wishes. Especially if you are not a major client. Honesty, ethics, etc. should compel them to inform you of that fact, but….. if you aren’t checking, temptation arises….
This is something to remember in everything. When I bought houses, I engaged a buyers realtor rather than work with the seller’s because I knew that the seller’s agent had a primary fiduciary responsibility…. and it wasn’t me.
Great story. BTW I can feel your anger over the internet. Is this over?
As a former lawyer who negotiated for clients, I understand why you wrote the letters, not your attorney. Money. A short letter from me cost $250.00 plus the cost of CMRRR. And that was more than a decade ago.
As I recall, the best negotiation I ever did for a client was one in which I said nothing. Afterward, my client thanked me profusely and said that my presence in the room made all the difference.
I disagree with your advice to “hir[e] your lawyer for a single job only.” It is evident that you do not follow your own advice. You refer to “my lawyer” eleven times in the article. You forward e-mails to your lawyer; you have a number of phone conversations (which I know cost you money). You have a continuing relationship with your lawyer. This is the way it should be. Do you have your lawyer on retainer?
But perhaps I misunderstood and you meant something else by your advice.
Have you talked to your lawyer about you, in person, contacting the principal directly? Assuming the facts are as you stated, it is clear that you will win the court case. But what are the opportunity costs of devoting time to legal proceedings vice doing what you get paid to do — write?
A phone call to the principal could put all this right and also behind you. But then again, you said this happened months ago so I guess it already is behind you.
“Court is a slaughterhouse where a party enters as a pig and exits as a sausage.”
You’re right, antares. I have this lawyer on retainer. But first, I tested with several single jobs. I’ve gone through many different lawyers before settling on my “team.” I need to do a blog post about this. Good catch. 🙂
Dear sweet lords of light. I hope this story has/had a happy ending.
I was thinking the same thing. Please tell us it’s so!
Wow, Kris. Just wow. As I read about that email exchange, I wanted to know that lawyer’s name so I could go slap him a few times for you. What an ass.
It’s one thing to not understand copyright law. It’s another to be downright disrespectful and condescending about it.
Off-hand, I wonder if this lawyer would have treated a man the same way. Sadly, I expect not. I have seen first-hand numerous times that some men and even some women treat women with disrespect, while putting on a completely different face speaking to men.
Way to stand your ground.
I can tell you from first-hand experience that a lawyer will treat a man that way, and get very annoyed when the man has the audacity to not be cowed in such situations. Fast-talkers, poseurs, and other such riff-raff don’t care much for gender, they just get incensed when they don’t have an easy mark–or, in the case of those who aren’t deliberate cheats, when the world doesn’t conform to the shape of their ignorance.
-Dan
Yow. I had a similar experience with a party who, without my knowledge, shopped one of my films around while representing that s/he had the ability to force script and premise changes on a property that had already finished shooting, over which s/he had no creative influence, etc.
And when I found out and sent te email to cut it out, events unfolded so like what you’ve described above that I thought I was reading a flashback.
Insane people…but they do provide great opportunities for learning. The lessons learned from that experience have saved my ass a couple times now.
Thanks for the post. Makes me feel slightly less of an outsider in such matters.
-Dan
So sorry to hear about this, Kris–whenever I think “people” are inherently good and can be fair in these kinds of transactions, I see a story like this and it frustrates me to no end.
Thank you especially for pointing out that not every attorney knows about every potential claim an author may have! I’m an attorney who had a very narrow practice area before quitting to focus on writing, yet folks constantly ask me about cases ranging from first amendment to criminal, but I’m forced to deny them (for ethical reasons).
The best piece of advice I can give everyone is to find an attorney who specializes in what you need. There are plenty of snakes out there looking to prey upon the unsuspecting, but there are an equal number of honest folks looking to make a living who stretch outside of their comfort zone to get paying work.
Much as it pains me to say it, don’t be these peoples’ guinea pig. Find a respected attorney in contract negotiation or copyright and use him or her. It will be for the best in the long run.
Thanks again Kris–another thoughtful, thought-provoking article!
Any advice on how to find a good lawyer? With most trades, I would check around with people that I know have had that need, but legal issues tend to be private so it is harder to find people that have used lawyers for particular issues.