The Devil is in the Details

I vet many of the cases that come to our firm (; that means I get to see what people think are lucrative infringements. That also means I have to tell them, sometimes, that we can’t take the case.

This is not the favorite part of my job, as you can imagine.

I don’t like having to tell an artist we can’t help, but we can’t take every case just because we really want to help. We have rents to pay, too. So, we have to do a cost-benefit kind of analysis to try to hedge our own “bets” on any case we’re considering for a contingency fee representation. Sometimes, the numbers just don’t work. Sometimes we have to say “no.”

More often than not, we can’t take a case because of something registration-related. There are three main categories for that: either a work isn’t registered at all (and the artist has no proof of licensing value); or it isn’t timely registered (i.e., before the infringement); or there is a serious error with the registration, usually relating to the publication status at the time of registration (i.e., registering as unpublished when it was published).

For contracts or release matters, too often there is no signed doc in the photographers files. Often any doc that may have existed has been lost as digital media that is now lurking on some dead Zip Drive rather than printed out and kept with a job folder.

All of those errors are related to details and, well, artists generally hate dealing with details except in their art. The Law (cap-L), however, is all about details. And there lies the devil for our clients and potential clients.

One example may help illustrate how details are everything in the Law: any filing in Federal Court. Besides doing all the legal research and the drafting, we have strict procedures we have to follow. We have the Federal Rules of Civil Procedure (FRCP), which are the procedure rules for all civil matters in all federal courts all over the USA. Each district within the federal court system has it own Local Rules that supplement the FRCP. Each district judge has her/his own Chamber Rules and each judge magistrate (who is usually in charge of the discovery part of a case) has her/his own Chamber Rules. So, before filing any document, a lawyer needs to check the FRCP, the Local Rules, and the Chamber Rules for whichever judge is in charge of that part of the case, and sometimes both the judge and judge magistrate. That is just for the procedure, not the law about the issues. Screw up something in the procedure and your whole filing can get bounced. Not good.

Anyway, this is a long way of saying that when it comes to the legal part of your business, you have to keep in mind that the Law is nit-picky as hell. You can’t play fast-and-loose with your registrations or your record keeping or your contracts (etc.) and expect the court to understand what you meant rather than what you did and, most of all, what you can prove.

This is why you’ll hear your attorney sigh and reach for the nearest martini when you say that you didn’t get a release signed because she was your girlfriend when she said it was okay that you make that image of her in a naughty nurse uniform, carrying a ginormous bong and flipping the bird to the camera whilst dancing on a burning US flag, and you don’t understand why she’s suing you now for licensing it to that punk record label, even though she now works for a conservative think tank and is engaged to a Mormon political candidate. You may know (and her too) that there was a verbal release, but can you prove it?

Really, attorneys hate to say no to clients. Help us to be able to say yes to you when you need legal help, by paying attention to all the devilish details. Getting it right could end up making you lots of money, in the end.

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