Litigation v. Arbitration

Photo District News ran an article this morning about a Los Angeles based photographer named David Strick who is caught between a rock and a hard place in his attempts to sue The Los Angeles Times for copyright infringement.

The facts, according to the article, are that for a number of years Mr. Strick had a contract with the Times to provide photographs from various entertainment productions which would be used around the time the productions were released. The contract ended, Mr. Strick's lawyer told the Times they could not use the images that had been sent to them by FTP after the contract terminated. The photographs were used. Mr. Strick sued for copyright infringement, but the Federal District Court for the Central District of California in Los Angeles dismissed the case because of an arbitration clause in the contract. Then Mr. Strick's arbitration claim was dismissed because he had failed to file for arbitration within a 90 day window after the precipitating event, as specified by the arbitration rules.

For as long as I was an active member of the American Society of Magazine Photographers, and probably even now, the ASMP sample contract forms specified arbitration as the means of dispute resolution between photographers and clients for most complaints. I believe the same held true for the Graphic Artists Guild forms as well, and for many of the generic forms available to photographers and artists.

As soon as I saw the results of this language in practice as a lawyer, I changed my forms and advised my clients to do the same thing. Arbitration, especially if you can specify using an organization like the California Lawyers for the Arts, can be a useful means of dispute resolution sometimes. But it has become a huge barrier for most artists, especially those who live in California, where an arbitration/mediation component is part of almost every legal proceeding anyway and private arbitration becomes far more expensive than that used during the course of regular litigation, as Mr. Strick learned. Mr. Strick was required to use JAMS, which, apparently, was specified by the Times contract. His costs to get to his arbitration dismissed on a technicality were $20,000 in shared arbitration costs. Ugh.

Mr. Strick describes himself as the less powerful party to the contract, and that's no doubt true. He did have the power to say "no" to the terms and walk away. I do suspect that his access to the subject matter was a reason he got the gig in the first place, so maybe "no" would have turned in his favor. Most photographers (and frankly, other creators) I've known in my life are so insecure that they are afraid to use that word. The people I know who have used it are generally the most successful.

Mr. Strick's predicament shows the biggest flaw in agreeing to arbitration: you will be held to it, even when, as in copyright infringement, you have denied yourself some really important remedies (statutory damages &  attorneys fees to the prevailing party if copyright formalities have been followed.) Copyright infringement has a 3-year statute of limitations from the time that Mr. Strick learned of the infringement. The 90-day window of the arbitration agreement is unusually short, and if Mr. Strick had been out of the country, for example, and did not learn of the infringement until a year later, he no doubt would have been similarly barred from relief.

A court will look at a contract and assume that all parties are on an even playing field. In fact, they usually are not and the big corporation has an extremely unfair advantage over an individual. There have been cases where arbitration clauses are thrown out by the courts as coercive and this one appears to thwart the interests of justice. But Mr. Strick isn't a consumer, he's a business, and he should have paid more attention to the paperwork. He may be very right that this would not have happened if the people who initially brought him in for this work were still with the Times, but they are not, and contracts should be written with that anticipation.

Litigation is no fun and should be avoided if at all possible. But you need to protect yourself for the worst-case scenario. Review the terms of your own paperwork carefully and give careful thought to removing language about arbitration for dispute resolution. Or perhaps you should consider making arbitration the choice for contractual disputes or for below a certain monetary limit of damages but leave litigation as the forum for copyright infringement (sometimes courts have a hard time parsing that one, you should be warned.) Even filing an arbitration dispute can be much more expensive than filing a lawsuit. Remember that if you file in California, you will probably see some kind of alternative dispute resolution inserted into the process (if you are lucky, the matter will settle there) and you won't have to pay for a court appointed arbitrator or mediator out of pocket like you will if you start with JAMS.

If you are in love with arbitration or mediation anyway, try to specify California Lawyers for the Arts as your dispute resolution organization. It will certainly be cheaper and faster than JAMS and the arbitrators may actually know something about the business of photography or the other arts.

Legal Advice to Writers

For more years than I can remember, I've been answering questions on a site called Hollywood Lit Sales, which was founded by a client of mine. Sometimes I wish Howie would just put a FAQ under the Ask a Hollywood Pro section.

The question I got today about writing a sequel to a film was actually on point, and I probably haven't answered it before, but many times I think I may need to break my fingers to avoid a snotty answer, many of which can be summarized below:

1. That's not a legal question.
2. Do some research before you ask a question.
3. There are no shortcuts to success.
4. If you can't spell, use proper grammar, or write complete sentences, you have no business trying to be a screenwriter.
5. An idea cannot be protected by copyright.
6. There is no such thing as a "common law" copyright in the U.S. after 1977.
7. I've answered that before when you wrote in under a different name.
8. Why do you insult me by wasting my time?

I know, I volunteered for this.

I don't want to be mean or even discourage people from following their dreams, but the first rule of being a writer is to WRITE. And write some more. And even more. And know that rejection is a big part of the game.

I can't count the number of people who have written to me saying they've got all these great ideas but they want someone else to write the script. Most real writers have more ideas than they can possibly deal with in their own lifetimes. They aren't interested in yours unless you can provide them with a great big bag of money and guaranteed credit. The people who write to me think they should be the ones who get the most money and credit.

An answer I give a lot is "why did you start this work without a written agreement" to the people who are in the middle of an ugly break-up with a partner who may have been a co-writer or just the idea person. Then there's the similar question about what happens after the ugly break-up where one of the writers has gotten someone interested in actually buying the spec script and doesn't want to tell the purchaser about the other writer. Nothing will hurt that guy worse than trying to sell a lawsuit to a producer. It's as if they think a former co-writer won't notice. People in the mid-west follow box office. Writers follow sales.

A screen writer needs a word processor, Final Draft, a printer, a ream of paper, and the delusion that he or she is talented.* A writing team also needs a written agreement about who gets first billing, how the credit will read, how the money will be split, and what happens in case of divorce.

*Credit to Russell Myers for the two variations of a Broom-Hilda strip featuring Gaylord Buzzard he did with a gap of about 25 years between them. The first one says "typewriter." My husband, writer Len Wein, keeps them both hanging near his desk.

Copyright & Trademark Lecture

The California Lawyers for the Arts called yesterday and asked me to give a talk on "Copyright and Trademark Basics for Visual Artists," something I could probably do in my sleep since I've done so many of them.

This free brown-bag lunch event is at Continental Art Supplies, 7041 Reseda Boulevard, Reseda, California on March 17, 2008. On-site registration is at 11:15 a.m. and the talk is scheduled from 11:30 a.m. to 1 p.m. Call California Lawyers for the Arts at 310-998-5590 or e-mail them at UserCLA@aol.com. Space is limited to 25 people.

See you there, I hope.