Monthly Archives: September 2010


Hello all. With 32 days until the wedding, I’m finding it harder and harder to get time to myself, or time to find my latin books, but at least I’m making an effort. However, yesterday I went on a trip to my first Red Sox game with my soon-to-be husband and I was inspired…

So to make a long story short, while viewing the game we were approached by a woman in a branded “Fanfoto” t-shirt with a very nice camera that offered to take our photo – “with no commitment”. Usually when these kind of photos get taken the people are very obnoxious about it, either forcing you to pose (Boston Aquarium, I’m looking at you) or hassling you as you come into the park (Six Flags, etc.). This lady was nice, and Kil liked the idea, so we posed. She gave us a business card with the fanfoto logo and a picture number so we could get prints if we wanted when we left the park.

Awesome, I thought. We could go online and order prints. That way, the business saved money by cutting out wasteful overhead, and I got to pick what I wanted from the site. What a great, eco-friendly business model!

Then, the guy behind me piped in with a bit of unsettling news. To buy the picture digitally from their site, it was $60.

It felt like someone had ripped the needle off the record. Where was the value in that? Where did *they*, as a company, place the value? As my lawyer brain started spinning, I went back to watching the game. The sum of it was simple, this was another company who didn’t understand where their consumers put value – or quite frankly, they were really just trying to milk us for an insane amount of money because we were at Fenway Park watching a Red Sox game, and Obviously We Have Money. (We were in the cheap seats, come on!)

So we went back to watching the game…

And then it happened. The woman reappeared back on the scene with an insane amount of the overhead that I thought they were doing without. Not only did she have a fancy framed picture (which was very nice, mind you), but she also had merchandise, and a four photo print out. All of this for $25. At first I thought she said $45, but she did in fact say $25. Okay, so now I know where your value is. The company wanted to have sales NOW because they feared the retention of customers back to their own computer was little to none. (And if you wanted a picture, you had to *really* want that picture for $60, or have it put into their own branding so you couldn’t make copies for yourself.)

But dear gods, the company’s practice of printing the photos out was so wasteful! I wouldn’t want to buy from them now, simply because they were wasting a hell of a lot of paper (there are about 25,000 seats in fenway) printing photos for people who likely did not want to get them. But beyond that, I don’t think I saw them sell a single one of those packets, which should tell the company something: their value is highly misplaced.

In a culture of people who bring their own high-quality cameras (for free) to a game, the value in having someone take your picture at an event like Fenway, or The Aquarium, or Six flags is lost. In order to restructure your business to maintain profitability, you have to provide extra value – not just for yourself, but for your potential consumers. While the value you place on being able to get an impulse buy from fans by presenting them with their product, that value is lost on the consumer. They’re being made to decide imminently if they want to part with money they’d likely still spend on food or other consumables throughout the game.

As a consumer, I place value on wanting to be able to access that photo online, after the game. If it was my camera that I took with me, then I have my own version of that photo, and I’m not going to buy any at all. However, there is definitely value in someone Else being able to get Their Own copy of a photo without having to wait for me, so having a third party take it and provide access to it can be good.

In addition, I also place value on their somewhat hokey branding / decorating of photos, because I’m silly like that and it was my first time there. Now that I’ve visited their site to confirm the $60 download, I can tell you that Fanfoto works like, you can order many different types of product, all with the one photo on it, for relatively cheap. This is good because most educated consumers know that the price of making those is not high. But to put an outrageous price tag on just the photo itself, especially when many consumers won’t want the hokey branding, is just unintelligent.

The value for the company is in selling their own versions, and preventing fans from making their own merchandise. But the value for consumers is just having the picture, a picture they can very well take on their own, with the help of a kind stranger that won’t come harass you to buy copies of that picture later in the game.

… *sigh* This very problem is what inspired one of the other academic papers that I posted on this blog when I started. Appropriately placed value is a major key to rebuilding a faltering business model, and the companies that realize this are the ones raking in the cash right now. (Another key is having a green company (or at least one that is at least making an effort to be green), and working under a business model that takes into account that some people will be more likely to buy if they trust the business is being intelligent about not being wasteful.)

Fanfoto aside, the sad thing about most business models working with digital media is that they remain hung up on the idea that consumers want product, and that in order to make that product valuable, you have to also retain it with an iron fist. What I’ve seen, both as a consumer and a lawyer, is that while the business models remain the same, consumers are finding ways to get what they want where they can get value from it. Most of the time, the value now is in not spending the money on the product. When companies can create value that makes these same consumers shell out money, then they’ll have it right.

So the moral of the story is that I really liked the photo, and I would have loved to buy it, but I have at least 10 of the same kind and same quality on my own phone that they’re not getting my money. Or other people’s money, for that matter. Their value is completely misplaced, and my own values have moved beyond their business model. Until the two synch up… It will continue to forever be Camera :1, Business: 0.


Photo Genic, Esq.


(c) Nicole L. M. Jurkowski 2010


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[Legal Latin] An Introduction

So in my first post I explained that I graduated from The University of Iowa with a Latin Minor and an Ancient Civilization’s Minor. In addition to being ticked off about not being grandfathered in to the new requirements for the Latin B.A. two weeks before I graduated… It also led to other, unexpected rage.

While a Latin student I studied almost the full spectrum of the latin language: classical latin (gold and silver), medieval latin, and even some church latin “for fun”. (If you want to know more about these crazy differences, check out the Classical Latin  wiki site.) What I didn’t study, however, was legal latin. Why? Because apparently, there is an even lower abomination of a beautiful language. Lower than church latin.

[Full Disclosure: My opinion is based on the realization that both medieval and church latin are best described as a modern latin student attempting to write a doctoral thesis after only one year of introductory latin. All of the grammar rules go to shit and they make up both new rules and vocabulary at a whim to cover it up. UGH!]

Thus unprepared for the reality which was to be the use of latin in the legal community, one can imagine how taken aback I was by people’s inability to do two things: (1) understand it and (2) pronounce it. Heavy on the second one.

For the first problem, it’s important to note that latin in the legal community is used to condense a complex legal notion into a means by which to express it in a few words (aka: “a term of art”). In this way, the profession can use the term as something more than their simple translation.

For me, these words gave me the opportunity to have fun translating them when I found them in the text, and then delve into the reason why they were used that way. (But I also translate every bit of latin I run across. Especially the latin on the Massachusetts state seal while I was getting sworn into the bar last year.) For other people, the latin phrases were just a pain in the neck.THey memorized how the letters went together, what they meant, and then moved on.

The second problem, pronunciation, was more of a struggle. Way back in latin class 101, I was told that modern society has very little actual idea what latin sounded like when it was utilized as a language. There were a few things that we knew (“c” is a hard “k” sound), but given the time, various vowel shifts, and other linguistic nightmares – there was no “proper” way to pronounce things. Despite this knowledge, there are accepted ways to pronounce latin in modern times. This is what I learned, and I very highly enjoyed reading latin aloud during class. (I also always wanted to take a conversational latin class and anachronistically talk about computers and the internet… but that’s a whole other ball of wax.)

When I took medieval latin, things began to change. I was told that with the fall of the Roman empire, the pronunciation of latin also began to change. Okay, that makes sense. The romance languages were blossoming from their originating dialects of latin, and there was nothing wrong with that. In the same vein, Church latin also had different pronunciations, which was only to be expected.

What I didn’t expect, though I probably should have, was what happened thousands of years later as the legal community took up the reigns of the language. Talk about nails on a chalkboard…

So by way of introduction to this wonderful series of posts I’ll be making as the blog goes further, let me leave you with my first and most favorite of all of my encounters in law school.

I believe it was in Contracts class with the glorious Professor Andrew Beckerman-Rodau. We were talking about some point regarding having all of the evidence needed to show your case, a concept which in the legal community calls “Prima Facie “. (Which you might recognize from last week’s post.) So when I, being a newly graduated classicist, made my comment about the term I pronounced the way I had been taught. When I finished, though, my ENTIRE CLASS was turning around looking at me like I had two heads.

Then I realized what I had done. I had said “pree-mah fah-key-a”.

Everyone else, who had learned that the letters “prima facie” meant something as a term of art – pronounced the same thing “pry-mah fay-sha”.


And that’s when I knew what I had to do. Even if it got sold just as a legal humor book, bought by friends of lawyers who thought it was cute, I had to write a book that was entirely based upon legal latin – where the terms came from, what they meant to the Romans, what they meant to the courts that first used them, what they meant today, and most of all how to pronounce them in the widely accepted modern latin.

I had to do it. It was my duty as a classically trained latin scholar to see this done.

So here I begin, one phrase at a time, on a blog I started one year after graduating law school. These are what will eventually become my Must Read book for attorneys on Legal Latin.

I hope you enjoy!

Classicly Trained, Esq.

Next Week: the dreaded “Prima Facie”, exposed!

[EDIT TO ADD: Hahaha. I just realized that this entire post-series will be crawled by google, which will in turn make them show up when first year law students search the internet to remember what the hell the terms mean. Score!]


(c) Nicole L. M. Jurkowski, 2010

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Copymark my Traderight

Today’s post is a very special one, close to my heart. Why? Well… usually, I’m very good about not “lawerying-out” on my friends or other non Intellectual Property lawyers. I don’t want to subject them to the full spectrum of why such and such is the law, and why things are they way they are. My friends didn’t go to law school and the non-IP lawyers didn’t study it for years like I did. I respect everyone’s right to bitch about the way things are or appear to be.


Any time anyone says “I really need to Trademark my poetry”, I can’t help myself. Instead of launching into some nice explanation, I just say “Copyright” in response. They say “Huh?”, and I come back with “You want to copyright your poetry.” At which point they indulge me and Miss Lawyer Pants explains herself.

So having done it more times than I can count – here’s the break down:


(First I start with the technical mumbo-jumbo.)

Technically speaking, a trademark is protection given by the US government over the mental association that a consumer has with the source of a product.

(My friends are generally smart enough to latch onto a few of those phrases, thankfully.)

So anything that creates a mental association with a product is considered a trademark.

(Then I launch into examples.)

Anything that you would consider a logo, a motto, or associated with a marketing / branding campaign is likely to be trademarked.

(Most people are nodding their heads by now, or offering examples of famous trademarks at this point – which is very good.)


(Now for the more difficult one.)

A copyright is protection over any type of artwork which can be and has been recored in some permanent medium.

(OR “Original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” But you know, that’s “lawyering out” a little too hard. We had a whole class in law school dissecting that one.)

It protects novels, songs, sculptures, choreography, and anything else you could think of creating.

(Then for the fun stuff.)

Under the Copyright Act, your rights attach whenever you create something: write it down, video tape it, write choreography notes for it, etc. But in order to actualize those rights…

(again, my friends are smart)

…you have to register the copyright with the Copyright Office. Basically, you give them a copy when you make it so that they have something for the Library of Congress (Cool!) and you have a registration that proves you wrote it.

(At this point, someone usually asks me about the validity of mailing yourself a copy of your work, and I sigh.)

The so-called “poor man’s copyright” is not a way to go about registering your copyright. The best it will do for you is act as one piece of evidence in a court case where you’re arguing that you wrote something first. Even if they stole the – let’s say, novel – from you verbatim, if they registered it they have what’s called “prima facie” evidence against you.

(Half the time, I then launch into the latin meaning of “prima facie”… but I won’t do it here. Lucky you, that’s for another whole caliber of posts!)

That means that the court will assume that their registration is valid, and it’s your (heavy) burden to prove otherwise.

(And at that point, you’ll wish you had just paid the $45 registration fee, because we lawyers don’t come cheap!)

So… getting back on point (yes, I am prone to tangents), A copyright is something that you have when you create a work of art, and it’s something you get a registration for to ensure that you have all the rights guaranteed to you for creating it.

(Those being: Reproduction, Derivative Works, Distribution, Public Performance, and Public Display)

And there my tangent usually ends, because they’ve gotten the point. And honestly, of all the lawyerly-ness that I can keep out of normal conversation, it doesn’t surprise me in the least that I can’t keep this quiet. I’m an educator. I learned all of this law stuff so that I could educate myself and other artists about what it means to have the law protect their work – and it is my end-goal to end up in a position where I do this for a living. This very conversation – except I’ll be doing it to many people at a time at conferences, or with particular clients who want to use that law for their own benefit.

That’s what I do. Or as I say about my own art, that’s what I can’t not do.

So, my friends, now you know that one copyrights their novel – and trademarks their band logo. Simple as that!

Miss Understood, Esq.

(c) Nicole L. M. Jurkowski 2010

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Filed under Copyright, Guide, Trademark

You’re lawyer, right?

Having been out of law school for almost a year now, I’ve been doing what I can to 1) make ends meet and 2) find a job. I’m currently waitressing, which I see as a great opportunity to work on my people and service skills (as well as, you know, eat). However, one other thing has been coming up often enough that I think it’s time to do something about it. This is something I hear a lot these days: “So, you’re a lawyer, right?”

Right. And I should start acting like one. I certainly have enough people in my immediate social circle that I can, and *have*, helped since graduating, and it’s high time I do it professionally. That’s why I went to school, right? (I mean, I really wanted to be under someone’s wing for a year or so to get my feet (and a steady paycheck) under me, but if the job isn’t there – then I’ll have to make it for myself.) Terrifying, but do-able. Even my lovely fiance says that I’m my biggest obstacle right now, bad economy or no.

So… backing up a bit. As part of my “settling in” to the Northampton/Springfield area, there are things that I need to do as a young attorney. 1) Join the Mass Bar, 2) join local Bar associations, and 3) join networking associations. I’m currently a member of the MA bar and the Springfield Area Young Professional Society… and have three bar associations and another YPS to join.

A few weeks back I went to the Northampton Young Professional Society’s meeting… and felt like I got rave reviews from others. I felt like an attorney again, talking with other attorneys, and I really felt like this is what I needed to be doing to get myself off the ground. Or, as Mr. Ben would say, “pulling myself up by my own boot straps”. I committed myself to making these YPS meetings a regular part of my networking.

Last week, I went to the Springfield YPS groups networking event, and it really did me in. I spoke with an attorney from a prominent law firm in here in Northampton who said I “had my head on my shoulders” and that I seemed to know what I wanted to do with my life more than he did last year. And he’s been practicing for 17 years. I was extremely flattered, and inspired…

So this is the reason for my post. I’m finally going to do it. I’m going to start my own firm. Hooray, me!

(It also explains why I didn’t post last week…)

So this process is a little involved, but a worthwhile thing to do. First up, opening up my IOLTA account so I can make things official in my mind. I also need to look into liability insurance, as attorneys are required to have one if they’re a solo practice. Not sure which one needs to happen first, but that’s all part of the process. I do have a few books on the subject which I will be reading more of, now.

So that’s what’s going on right now. Hopefully I will post once again this week, but like a good entertainer at law, I’ve got some social network/marketing to do so I can get this off the ground.

Miss Solo Practitioner, Esq.

Next Up: “Copyright v. Trademark ”


(c) Nicole L. M. Jurkowski 2010

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