Thoughts on Representation

I recently accepted an invitation to appear on a panel dealing with copyright and trademark issues for a local writers' organization. Four of the five panelists were lawyers, two of whom also said they were agents for writers. I think there is an inherent conflict of interest in that designation.

As a lawyer, I know my duty is to my client. I have to perform due diligence to make sure I do not have a conflict in representing an old client when I take on a new client. Disclosures must be made and releases sometimes need to be signed.

 An agent can, and frequently does, represent a number of clients who are looking for work (or contracts, in the case of a prose writer) in the same places. These clients are, in essence, competing against each other. 

An agent, by definition, is supposed to be working on behalf of his or her principal and, in law school, I thought I was taught there were fiduciary duties involved in that relationship. Now, I am not so sure agents see it that way. While I think that the agent does have a fiduciary duty to the writer or photographer or artist he or she represents, I have heard too many stories of creators whose agents failed to send on royalty payments or who inserted clauses into contracts which benefited the agent but which were no benefit to the creator. A lawyer should bring independent eyes to a contract review, and know that duty lies not to him or her self, but to the client.

Back in the day when I was a full-time photographer (and never had an agent except for stock work which was a 50/50 split), photographers' agents might represent non-competing photographers, such as a fashion photographer and an architectural photographer.  But many agents worked exclusively with a single photographer, earning a commission on the order of 35%. (To be fair, a lot of the time a photographer's agent was often the photographer's spouse and I always thought that having an agent taking 35% was like being married to someone without the benefits.)

Book agents, by comparison, worked with many writers and took a commission of 10% (now the usual fee is 15%.)  Legitimate television and film agents, because they are in the business of "procuring employment" are still limited by law in California to 10%, but large agencies can circumvent this by "packaging" a project, where they are allow to commission at a higher rate against the project, but cannot then take a commission against individual talents.

Here in Hollywood, there are people called "managers" who are unregulated as to what they do and how much money they can charge for commissions. They are not supposed to be "procuring employment" but many of them do just that. They also charge 15% and up for what they do.

I've heard tales of people who call themselves "agents" and then change the designation to "manager" or, worse, say they are "producers" and really screw over writers who are hoping to make an impact in Hollywood. I call them barnacles, a term of art I learned at some MCLE program or another. You do not get to change your title mid-stream. You do not get to attach yourself to a project and kill it for your principal if you don't get what you want for yourself.

Lawyers are highly regulated and licensed. Agents who "procure employment" for talent are also regulated and licensed. Managers have fought tooth and nail to avoid any kind of licensing or regulation. Literary agents, meaning those who represent prose writers, and artists' agents do not appear to be licensed beyond having a business license wherever they set up shop, although I know that there is are some trade associations for them. I've known some good and honorable agents. I've also been told tales of horrible agents. And my friends Victoria Strauss and Ann Crispin have spent decades watching and reporting on the scammers out there, who steal money and dreams from aspiring writers. (Check out Writer Beware to see the good work they do.)

There is something about a lawyer claiming simultaneously to be an agent that makes me very uncomfortable. I've been in the position of negotiating (and getting) points in a contract that the agent for our mutual client refused to take up because it might affect some other deal they had in the works. This is not a good thing, and if the lawyer and agent were the same person, it could lead to a malpractice claim down the line. Malpractice is my worst nightmare.

So, if you are in the market for a lawyer or an agent or even a manager, don't look for one in the phone book. Do some investigating before you sign any agreement with any representation. Use the Internet. Ask for references. Talk to some of their other clients. Remember, it's likely to be a relationship like a marriage without the benefits.

Rights Grab

I got an interesting e-mail recently at work. I share it with you. It is something to keep in mind. There should always be some sort of consideration for amending a contract, and it can't be done unilaterally. Many publishers are giving expansive readings to their own contracts, to the detriment of authors. Writer (and artist) beware:

The information in this email is being sent on behalf of the National Writers Union. The AAUP is supportive of the work of the National Writers Union (NWU) and has partnered with the NWU on issues of common interest to our members. The AAUP is not providing any legal assessment or advice related to e-book contract amendments and is not responsible for the legal advice provided by NWU in this message.

Message from the National Writers Union About E-Book Contract Amendments

With e-books starting to surge, many publishers are asking textbook and trade book authors to amend their existing contracts to include e-book and other electronic rights. If you receive such an amendment from any publisher, please don’t sign it before you read the National Writers Union’s primer on e-book amendments.

It’s important to remember that you are under no obligation to sign an amendment to an existing contract. You should only sign an amendment if you get the terms you want. If you don't agree to a proposed amendment, the original contract remains in force. So, take your time and negotiate the best deal you can.

As negotiating an amendment or a contract can be an intimidating proposition, be sure to check out the NWU’s Negotiating Contracts over the Phone primer beforehand. This document is filled with useful information that will help you negotiate from a position of strength.

The National Writers Union provides free book contract advice and grievance assistance to our members, many of whom are academics. To learn more about the NWU, check out our website at https://nwu.org/.

If you have any questions or concerns about a book contract and/or an e-book amendment, please contact us at advice@nwu.org.

E-books present tremendous opportunities for academic authors, but only if you are fairly compensated for your work.

Paul J. MacArthur
Assistant National Contract Advisor
Vice President of External Organizing
National Writers Union
pmacarthur@nwu.org

Wannabe Writer v. Avatar

I had a couple of calls from people seeking legal advice before Avatar was released. I told them all I no longer litigate (true), but the last thing I wanted to be involved in was something as silly as this law suit which has been filed. The book has never been published and sounds like what my friends in publishing call a "Mary Sue." I'm sure that if the manuscript ever hit a slush pile, it would be used in a late-night, read-out-loud session at a science fiction convention, which is what happens to really bad manuscripts.

There are legitimate cases where work has been stolen and the plaintiff prevails. The Northern Exposure case won by Glen Kulik always comes to mind. And Harlan Ellison had a famous run-in with James Cameron over Terminator (Cameron made an admission against interest which led to it, I hear. It was years before Harlan was my client.) Harlan also went up against Paramount over a short-lived TV series called Brillo, which I hear led to a billboard near Paramount for a while (again, before he was my client.)

I once had someone from Eastern Europe call me to say that a disaster movie had been stolen from him. His English was not good enough for me to believe that had happened. Actually, several times I've gotten inquiries about what would be a theft of idea case where I didn't think the caller had the language skills to have written a screenplay or novel that anyone would have (a) read or (b) stolen. (If this sounds a little elitist or arrogant, I'm married to a very successful writer and wordsmith--an "old god" of his field--and I have spent time with many, many famous writers. I also spent time working in publishing. I know the difference between good and god-awful.)

Most of the time, the plaintiff is working on a theft of idea theory--somehow their idea or work got into the hands of someone who then used it as the basis of a movie. The plaintiff would not have given it away without expectation of payment. These claims of quasi-contract only have a chance of working in California. It's a claim under state law, and most states won't recognize it.

Copyright does not protect ideas, only expression. If a substantial amount of the "idea" has been expressed in writing--an outline, a treatment, or a draft of a screenplay--the first thing a studio which is hit with a theft of idea case will try to do is kick it from state court to Federal Court as a copyright claim. If the plaintiff hasn't registered the copyright to the work, it puts them behind the eight ball at the start and severely limits plaintiff's damages.

The next step in the plaintiff's case is going to be to show access and substantial similarity between plaintiff's work and the alleged infringing work. And defendants don't get off the hook by showing how much they changed from the original. There is no magic percentage of change that makes it original, no matter what you have heard.

Access such as having a meeting with the producer who produced the infringing work and submission of plaintiff's work is pretty darned good potential access (which is why most places won't even look at work that's submitted cold without getting a waiver from the writer.) The similarity becomes the big hurtle. There are experts who do detailed analysis and charts to present evidence of similarity or lack thereof.

In a science fiction or fantasy work, traveling to a new world with strange new creatures is endemic to the genre. There are hundreds of tropes in these genres. Space ships, winged aliens, elongated, aliens of different colors, military invasions, mining (even Star Wars had a mining planet) etc., etc., etc. The stranger in a strange land concept goes back to the Bible and probably beyond (the phrase comes from the Bible.) Using any or all of these concepts doesn't get you to copyright infringement. Things have to be a lot more specific and it is even better if chucks of dialogue are identical (and not just because that's what anyone would say under certain circumstances.)

I haven't seen Avatar, which is strange considering my background. But I'm not a Cameron fan and, while I think this lawsuit is bogus, there are plenty of other sources from which Cameron probably stole his ideas. But he's allowed to steal the ideas, just not the expression. Even people who are as turned off by his poor dialogue as I am say it is the visuals that make the film and he did a great job with them.

Among the material I've seen people cite as source material for Avatar's plot and other elements are Dances with Wolves, Pocahontas and Ursula K. LeGuin's Earthsea stories. When I finally get around to watching it, I may have some suggestions to add.

I expect that this lawsuit is going to get thrown out at the motion stage. With a bit of luck, the judge may even sanction the law firm if this is as frivolous as it looks at first glance. I'm having a hard time reading the complaint without laughing.

WB v. Superman's Lawyer

I doubt that I would have been contacted by the Siegel & Shuster families when my article "Truth Justice & the American Way" appeared in L.A. Lawyer Magazine in 1996 if some of the allegations in the law suit against Marc Toberoff are true. There are things in the opening paragraphs of the complaint, which you can read here, that don't sound like what I learned when I was doing my research for the article or the law school paper that preceded it in 1992.

It will be very chilling if lawyers can be sued personally for taking on a legitimate case (which the Siegels did have for the renewal rights.) And I find it annoying that the complaint waxes eloquently about how well DC Comics/WB took care of the Siegels and Shusters when anyone in the comic book industry can tell tales to the contrary for a huge part of the 70 plus years of Superman's existence. Paul Levitz did a lot to improve the financial position of many of the older, pre-equity creators, but there were a lot of years before he ran the company.

And, contrary to the allegations in the complaints, Siegel and Shuster used every legal opportunity they had to attempt to regain control of the Superman empire. The various suits are a matter of public record. Both Siegel and Shuster died before the window for reclaiming works created under the 1909 Copyright Act which was written into the 1976 Copyright Act opened. That opportunity was described in a side-bar in my article. The Siegel heirs (widow and daughter and grandchildren) had that right. The complaint correctly notes that Joe Shuster left neither widow nor offspring, so I don't know what was done to include the Shuster heirs (sister and nephew, I think) in the matter.

I will certainly be watching this closely. Mr. Toberoff, I hear, is also representing the family of Jack Kirby against Marvel, and some of those properties have a direct bearing on my husband's Marvel creations.

Fairey's New Hope

Here's an article about Shepard Fairey's changing lawyers in his case about his copyright infringement of a photograph to create the poster of Barack Obama called "Hope."

His new lawyer from Jones, Day (the largest law firm in Cleveland, and one of the largest in the world--I cannot figure out why they've even taken this case since they are a corporation-side law firm) says that one of the ways Fairey can win is "fair use." This is so not fair use.

Fairey took the whole of the work.

Applying a posterizing filter in Photoshop is so not transformative.

He's denied the photographer (and there is still an issue about whether the photograph is AP's property or the original, freelance photographers--C.C.N.V. v. Reid says it's the photographer, not AP that owns the image) the right to make that own derivative work.

Whether or not he's made money for this, his lawyers better take a close look at Rogers v. Koons, which also says this isn't fair use and any money is going to go to the photographer (or AP, if it does turn out AP owns the image.) In the Rogers' case, Jeff Koons took a greeting card with Rogers' photograph of two people holding a litter of puppies, ripped off the copyright notice, sent the photo to artisans in Italy who fabricated a statue of the images--I think nine of them were made--and Koons then sold them at over six-figures a pop, because he is "an artist.') (Koons has also been sued by--and lost to--Jim Davis for doing a statue of Odie from "Garfield." Some people never learn.)

Fairey's poster is an unauthorized derivative work of this photograph, just as the Koons statue was. I think that the judge should have made that ruling on a motion and saved a lot of people a whole lot of money and labor in legal fees. I had a case where the judge pulled in all of the parties--including insurance companies who'd be doing the payout--and told us all the case was about money and there was a price that would make it all go away. He was right. While the insurance defense firm was royally pissed that the parties could do this, it worked out well for everyone else.

Jones, Day is the same law firm that represented the Rock & Roll Hall of Fame against a photographer who made a poster from his shot of the building at sunset--which is, by the way, a fair use--claiming that it was a violation of the Rock Hall's trademark rights in the building. While the trial judge in Cleveland took that hook, line, and sinker, the Sixth Circuit saw right through what had happened (Jones, Day could say what ever it wanted to in Cleveland with no law to back it up against a misguided photographer who represented himself at the hearing) and ruled that because the Rock Hall had no standing to sue on the basis that the photograph infringed on their copyright (the copyright to a building actually rests with the architect and anyone can photograph a building from a public place and not infringe that copyright--as the law clearly says) the lawyers stretched to find a trademark right in every image of the building, which does not exist. It was a nice ruling for the photographer.

You'd think that Jones, Day would have lawyers who know more about copyright than to take this case thinking they can win under the argument of "fair use."

Jeopardy Home Town Howdee

Jeopardy! has put up this week's "Home Town Howdees" here. See me immortalized making funny faces. Remember to watch the show tonight!

Real Fair Use

I collect litigated art for the talks I give about copyright and artists rights, and, in preparation for a talk I'm giving next week, a peachy one has just crossed my desk.

I do not normally agree with Cory Doctorow about copyright issues. He's firmly in the camp of "information wants to be free" which I find at odds with his other job of being a science fiction writer. Cory was on the board of directors of the Science Fiction Writers of America when I first was hired as their attorney, so we've had some dealings over the years. He's a very smart and personable gentleman, even if I don't agree with most of the positions of the Electronic Frontier Foundation or those he propounds on Boing Boing.

This time, though, Cory and Boing Boing are absolutely in the right. They've reproduced a photograph of an impossibly thin model in a Ralph Lauren ad, which you can see here and read about on the Huffington Post. Boing Boing's been hit with a cease and desist letter from Ralph Lauren's lawyers claiming copyright infringement.

This doesn't pass the smell test, or the giggle test, as the blog pointed out. While I get a lot of queries about fair use, most of them involve situations where some schmuck wants to use work without paying for it. This is not that kind of a case. The photograph was reproduced under one of the clearest cases of fair use I've ever seen--commentary on the photograph itself. I think it was originally reproduced in Photoshop Disasters, one of the funniest blogs anywhere, especially if you work with Photoshop (as every photographer today does.)

As pointed out elsewhere, the model in the Lauren ad has a head which is bigger than her pelvis. Last time I looked, that's more than a bit out of proportion. I find her legs to be absurdly thin--rather like Laura Flynn Boyle's walking skeleton the night that David E. Kelley was honored for his legal series at the Television Academy. I could not believe that people complained about Callista Flockhart when Ms. Boyle looked like she had not 1% body fat and legs that looked like toothpicks in her leather pants. (This was my impression from my view about three feet away at the reception that night.)

The model looks awful. Kudos to Cory for pointing this out. I'll handle the case against Ralph Lauren if Cory needs it, which is not an offer I make lightly. Lauren's high powered law firm should have advised him that this is a no-win situation. (Which is what I will tell them if they bother me with one of their C&Ds now that I've had my teaching moment about litigated art.)

And someone should set up a fund to feed this girl.