One of the things I’ve realized is that I haven’t taken the opportunity here to really explain how a lawsuit begins. So having had a few cases under my belt now with some legal work, I’m feeling inspired to explain what can lead up to the well-known phrase: “or I will be forced to pursue legal action”. So what happens?
1. The Issue Begins:
Something happens that gives you the opportunity or necessity to seek recourse through the law.
This can start in many ways: Maybe you want to hire someone with skill in order to do something that you cannot. Maybe a big corporation wants to buy the rights to your music or other media and distribute it nationally. Maybe at a party, a friend causes substantial damage to your XBox, backs into your car in your driveway, or some other sense of property damage. Maybe you stumble across your award winning piece of art being used by a corporate company or sold on merchandise without your consent.
So given these situations, what do you do? You think about talking to a lawyer…. but lawyers are expensive! So you’ll do it yourself.
2. Pro Se
Most people “represent themselves” and take steps to try and resolve the situation.
So if you want to hire a contractor, you talk to them and set out the terms. How long it will take, what works is done, and get their estimate of how much it will cost. For a music label or media corporation, you get some forms from them that you’re being told to sign. At your party, said friend promises that they’ll pay for the damage. And as for that big company, you do everything you can to figure out how they got your piece and double check how similar the corporation’s piece is to your own.
3. The Other Shoe Drops
Unfortunately, then some people get the short end of the stick.
Your contract work is all oral agreements (without a signed contract with the terms you discussed) and they start deviating from the terms. (They take too long, use the wrong products, etc.) The record label ends up owning 100% of your works, and you have nothing to show for all your work because they wouldn’t listen to any of your requests. The friend vanishes and never pays up. And the corporation’s legal department is just too massive to fight by yourself.
Now, you’re stuck. You know you have rights, legal rights, but you’re not sure how to make the other person acknowledge that and do what you want. But you remember that your friend Nicole just opened her solo practice, or your dad gives you the number of his hockey buddy, or your friend’s bandmate gives you a business card for the person they worked with when they got signed.
All of them are lawyers, and all of them have spent an obscene amount of money and three years of their lives towards a legal education to help you out for just this reason!
4. You Get a Lawyer On Board
Now you have an advocate to educate you and send the initial letter telling the other party what they need to do “or you will be forced to pursue legal action”.
In situations like this, the lawyer acts either as your back up, giving you documents to take to the other party, or they can become the middle man, requiring the other party to talk to the lawyer before talking to you. (This is especially true for cases where anything you say can be held against you.)
So for the situations above, these are a few of the things a lawyer could do.
- The Contractor: An attorney will look at the paper trail (emails are great for this) for what was agreed upon, and help explain to you how the law protects you in the situation. They can also help pick out what the courts would enforce as an agreed upon oral contract, and let your contracts know that as well. The hope is that this information gets the fire underneath them to make amends and complete the work. But if it doesn’t, then you can pursue other, more legal-heavy remedies like hiring another contractor and pursuing the first contractor in court for the extra money you had to pay to get the job done.
- The Music Label or Corporate Media people: An attorney will look over the documents that have been given to you and your band and help you to understand what you are selling / licensing to them. They can take you through the pieces of the Copyright law and let you make an informed decision about signing those documents. Depending on the situation, they can also step up and talk to the company directly and attempt to negotiate better terms for you.
- The Friend: (Because it wasn’t a commercial situation, this is a little harder.) An attorney can write a “nasty” letter that explains to your now frienemy what your specific legal recourses are given the situation, but this is largely an attempt to scare them into paying up. The problem is that the cost for pursuing legal action (damage to or conversion of personal property) may be more than the cost of the damage itself, and not financially responsible. If they know that, then unless you have the money to go after them, you’re kind of stuck – lawyer or not. But if they don’t know that, then they might get their act together.
- Corporate Copyright Infringer: This is my favorite, but then again I wouldn’t be an Entertainment lawyer if it wasn’t. For this and any other type of copyright infringement you can have a lawyer draw up a “Cease and Desist” Letter (while also registering your copyright, if you haven’t done so already). This is the same kind of nasty letter that they could send to the friend, except with the letter they are invoking your rights under the Copyright law. If the work is of the appropriate media (say, posted on YouTube) they can also draft and send a “DMCA Takedown Letter” to get the material taken down. (DMCA letters are not just for Viacom and the MPAA – normal people can invoke the DMCA too.) If the case is strong for both access and substantial similarity, then this should get the corporate entity to either stop using it or pay licensing fees. (They’re likely going to try to wait you out and force you to go through the courts to actually get anything out of them, but if you have your copyright registration and it’s an award winning piece of art, you should have a solid case.)
Whatever the situation, you are hiring an attorney to educate you about your options and help you make an informed decision about how to act on your rights. They can make suggestions, but in the end, they are your counsel – not your boss. Fortunately, you can also have them do the first step of each of these remedies and write that “nasty letter” to the other party to let them know that you’ve lawyered up. If they’re smart, they’ll work with you and all you need to pay the lawyer for is that first letter. If they don’t, and you do want to pursue them, then they can help you out there, as well.
Hopefully this has answered a few questions about what lawyers do and how lawsuits begin to percolate – but also how things can and do settle long before anyone elver gets to trial. It’s easier to just get on the same page with someone and communicate about expectations than it is to fight with $150-2,500+/hr weapons.
- Your Friend, Esq.
(c) Nicole L. M. Jurkowski 2011