I post often about things you should do, like registering your copyrights. Today, though, I think it’s time for some don’ts. Most of these are things that people seem to think are really good ideas but, when the rubber hits the road, they aren’t. Some of them can be downright dangerous. Some of these are legal-related, and some are just general business advice. So, here’s my list of 10.
- Before you actually hire an attorney, and I mean have a written agreement covering that particular matter (and paying a retainer, if required), cc the lawyer-you-think-may-be-your-lawyer on your email to some potential opposition. This sucks for the attorney on multiple levels, including being blindsided (never good) and pissing off the attorney’s malpractice insurance provider. Most of all, and I’m sure you don’t realize it, but you are using that lawyer’s professional reputation without her/his permission or payment! You know how you don’t like having your work ripped off? Samesies. You have, in a way, forced the attorney to represent you without that person’s permission. It’s just all kinds of bad.
- In any email–whether you cc’ed the attorney (who is not yet actually your attorney on that matter) or not–tell the potential bad guy “My lawyer will make you pay $X” or “My lawyer says you will owe me $150,000!” or even “If you don’t pay me $X now, you will regret it! My lawyer will rip you a new one” and the like. Ugh, even typing that gives me the willies. Don’t put words into a lawyer’s mouth; you are pretty much sure to get the law wrong and more often than not, when I’ve had potential clients do that, they didn’t even have a good case (register your copyrights, already). The threats end up hurting you. Later, when you do hire a lawyer, you will have dug a bigger hole for her/him to work out of and, it’s possible, that you could have traipsed into the realm of extortion. So very not good.
- Make unreasonable demands and then get pissy when they aren’t met. If you contact someone who has potentially breached a contract or infringed (or whatever), giving them an arbitrary 24 hours (ish) to fix it/pay up just makes you into the jerk. Real life sometimes takes time. Give people time to do the right thing. Sometimes they have to get their heads out of their butts first and that doesn’t always happen overnight. Same goes for money demands–don’t ask for $20,000 when a photo is used (without a license) on a personal blog–you won’t get it and now you just look like a bully.
- Generally, act like an asshole (and there is a test if you aren’t sure). You get more flies with honey is a good old saying for a reason: it works. Sure, it’s not 100% effective, but I think it works much better than being a jerk. If you make it easy for someone who’s done you a wrong to make it right, without humiliating him/her or beating him/her up (verbally, I mean, please tell me you don’t hit anyone), you are much more likely to achieve your goal. When someone gets caught doing something wrong, it can be embarrassing and humans often react defensively (read: like idiots) when embarrassed. Don’t rub the person’s nose in it–rise above the nasty gut-reaction s/he may initially respond with and talk instead about how “we” can “make it right.” Look for solutions, don’t make more problems.
- Be greedy. Let’s say you want to get $5000 from a potential infringer (and, yes, you should always have a number in mind that you would be perfectly satisfied with from the get-go; not a pie-in-the-sky number but one that you would happily take). You’re going to ask for more than that as an opening offer–that is expected. Whenever the other side agrees to pay $5000, take the deal–you got what you wanted. You don’t have to push for more. It isn’t about getting all you can, it’s about getting enough. Satisfaction doesn’t mean “all you can squeeze out of the bastard.” This is also true for project estimates and all negotiations in your business.
- Beat up Betty for what Bob did. By that I mean, it’s important to take each matter on its own merits and each potential person on hers/his. Don’t be a chump, but if Bob said he was poor and couldn’t pay a dime and it turns out he owns a mansion and a yacht, don’t expect that Betty is lying when she says she’s poor. Give each person a chance to prove her/his side of the case. Sometimes it really is a hacking or someone really is on foodstamps. I’ve found that when someone legitimately has extenuating circumstances, s/he usually is more than willing to provide some proof.
- Try to sound like a lawyer when someone does you wrong. You’re not one and mostly you end up sounding like you’re trying too hard and being unnecessarily nasty. You can be appropriately assertive (and be assertive, not aggressive) in your own voice and without using $20 words. See #4 above, too.
- Refuse to have a plan. There are a bunch of plans you should have as a businessperson. You need to have a business plan, a marketing plan, and an estate plan, just to name three. None of these need to be complex, but you do need to have an idea of where you are (A) and where you want to be (B) to be able to get from A to B. When you have a work project–be that a photoshoot or a series of illustrations for the New York Times Magazine–you plan out what you need to do to accomplish that project. Do the same for your business as a whole. As for the estate plan, well, don’t be Prince.
- Expect to learn the law from a creative professional (or, worse, the interwebs). Okay, I know this is going to ruffle some feathers, but creative professionals, even those who have been in lawsuits often or who have registered a gazillion copyrights*, are not lawyers and do not know the law the way a lawyer does. I swear I’m not tooting my own horn here–I can’t do what a great photographer can do even though I’ve worked with them since the 1990s. It’s just not the same as devoting yourself to the intensive study and practice for years and years. Anyway, you wouldn’t go to a graphic designer for medical advice, right? Why then do you spend good money to have one teach you about business law or copyrights? There is a reason we lawyers have to be licensed, just like doctors–when we get things wrong, it can really be life or death in some cases (there is a reason I don’t do criminal law) or at least economic life or death in others.
- Get angry and take things personally. This one is huge. In business (and law) the ego gets in the way too often. When people do things that negatively affect you–be that infringe on your work or try to get you to agree to work for half your normal rate, whatever–it really isn’t about you, it’s about them. Maybe the art buyer is getting yelled at and squeezed by an impossible client or the infringer is oblivious to copyright, who knows what is going on in their heads. I can tell you that almost always what is not going on is “I want to screw over this artist.” Even when the other side is acting like total jerks, it’s still about them. For example, I’ve had cases where infringers have called me horrible names; what the infringers were really trying to do was make the problem go away– each knew it was caught and was embarrassed so it lashed out in anger. Taking that anger personally would have been wasted energy. Instead, I think it’s better to approach it more dispassionately like “I understand you’re upset; there is a problem here and now we need to find a way to fix it” and then start trying to think of solutions. Your goal is to find a solution that works for you so keep your focus there. Sometimes, that solution is even just walking away and letting go of that fight, but often by expressing compassion for the suffering of the other party, they will soften and you can get what you need.
*I can tell you from personal experience that more than a few creative pros who think they know how to register their work have done it wrong. So wrong, in fact, that some of their registrations could easily be broken by defendants.