Lawyers tend to be conservative creatures. We don’t like loose ends or vagueness, so we will always tell you to get permission, even if using the quote wouldn’t necessarily open you to liability. After all, why run the risk of guessing and then getting sued when you can simply ask and get a straightforward answer? It’s always easier to ask permission than to beg forgiveness later.Read More
My friend Adam is a professional illustrator and has been fending off spam emails like these for most of his professional life:
Now these are obviously scams, and like most of us Adam typically deletes them or sends them to his junk mail folder. But lately they've been getting more sophisticated and harder to spot, and Adam is concerned that more artists like himself may fall for them. Is there anything we can do to fight back?
I don't know how many artists fall for these types of schemes; I like to think most people are savvy enough to see through phishing attempts like this. But if the scams are getting better, they're more likely to convince someone to give up sensitive personal data. In today's political climate no one is looking out for artists. There’s a patchwork of federal and state laws such as the CAN-SPAM Act of 2003 that ostensibly address commercial spam, unlawful solicitation, pornography, and various forms of computer crimes, but these laws are incomplete and often ineffective. The CAN-SPAM Act, which prohibits many types of commercial spam (but permits many others) itself has largely gone unenforced.
So if you wanted to take matters into your own hands, how could you do it? You could:
- Report the spammers to a law enforcement agency;
- Contact Anonymous or other white hat hacking groups;
- Sue them if you can figure out who they are; or
- Meet the scammers on their home turf and spam 'em right back.
Any of these options would feel satisfying. Turning the tables on your opponent usually is. But without money, time, or cyber-security know-how, most of these probably aren't all that realistic. And as for law enforcement, well as I said above, there's not much incentive these days to pursue Nigerian Prince-like schemes. There's another problem too. These spammers are a dime a dozen. Even if you successfully take one out, several more will spring up like a hydra. And let's not forget that many of them are attacking you from countries like Russia, China, and North Korea. Not exactly places where the U.S. has political capital.
The reality is that the best tool for fighting back against unwanted spam is education. It’s banal and not very satisfying for the vengeance-minded, but it does work… kind of how like comprehensive sex education contributes to lower teen pregnancy rates. So if one of these emails makes it through your spam filter and into your inbox, what should you look out for?
Poor Grammar and Spelling. Not every prospective buyer writes English well, but the wonky grammar in these emails tend to be a dead giveaway that you’re reading something written by a bot and not a person. Some of these emails can be well-written though, so be extra vigilant about that.
Lack of Specificity. Spam emails like the ones above tend to have few details about the buyer and demonstrate little or no knowledge of you and your work. You may get some generic compliments or odd bits of personal information designed to throw you off the scent, like “I saw my wife looking at your website” or “I’m moving to Australia.” But spam tends to largely be devoid of specificity and humanity.
Lack of Common Sense. These emails tend to ask for information that is easily and readily available and takes little common sense to find. As you can see, all three emails above ask Adam for information about purchasing his art... information that’s available on his website, which is easily Googleable. If this person had done enough investigating to find his email address, they certainly would have found his website. Oftentimes, they’ll offer to buy a work without asking the price or how to properly ship the work.
Bad or Incomplete Contact Information. Spam and phishing emails often give strange looking or contradictory email addresses. They rarely provide mailing addresses or phone numbers. In the event they do, the address is often an international one and/or improperly organized (like forgetting to put a state or zip code) and the phone numbers often have an incorrect number of digits or are international numbers.
Questionable Payment Options. Spammers are usually trying to get personal identifying information or access to your bank or credit accounts. They may ask for your PayPal account or bank information. Periodically, as in the emails above, they’ll offer personal checks or cashiers checks. The offer of a cashiers or bank check is especially curious as those checks are conventionally understood to be backed by a bank. If it’s a bank you’ve never heard of, do some research and find out if it’s legit.
There are some other things you can look out for as well. It should be said that even if the email contains some of these issues, the buyer could be real, so do some digging - find out who this person is - and use your common sense.
Under no circumstances should you EVER ship the work to the buyer until A) you’re confident it’s a real person and B) payment clears. And if there’s any doubt, just send it right into your junk mail folder and don’t give it a second thought. You’re too busy to spend your time trying to figure out if a buyer is a real person who wants to buy your work.
You know, I say "get everything in writing" so often on this blog that I feel like I should have it pre-engraved on my headstone. I may be a broken record about it, but that's only because I've had plenty of first-hand experiences where that information would've come in handy. Here's one such experience that proved so formative, it helped shape my eventual journey from film to the law.
In the summer of 2002, I was a freshly minted RISD grad working in the vault of a major post-production house in New York City. I was hoping that after a few months organizing shelves of film and tape, they would call me up to the big leagues so I could learn to be an assistant editor or color correctionist. It wasn't my dream, but it was proximate enough to my dream that I stuck it out. In late August, my friend Maureen from college called and told me about a job opportunity she knew I couldn't pass up. After graduation, Maureen moved back home to Orange County where she was picking up odd jobs in the film business. A friend of hers - who I'll call Jenny because I can't remember her actual name - had been an assistant editor on Brett Ratner's films, and because Ratner was about to direct the new Superman movie, Jenny was slated to work on it. According to Maureen, Jenny could get me a job as a production assistant on the film, but I had to get my ass to L.A. pronto, since production was ramping up. This meant leaving my steady job and steady girlfriend (who eventually forgave me for moving 3000 miles away and married me) and taking a hell of a risk. Other than Maureen, I didn't know anyone in California. I had no money, no connections, nowhere to stay. I was going out on a limb, and trusting to fate, God, the universe, whatever, that it wouldn't snap beneath me.
With Maureen's help, I called Jenny who put me in touch with the production company. The woman I spoke to there was very encouraging and though she couldn't guarantee I'd be hired, she assured me that once I got to Los Angeles, I could come in for a proper interview and, most likely, get myself a set PA job. A month later, I was in the City of Angels, ready to make my dream come true.
"A job as a production assistant?" you might ask. "That was your dream?" Well, yes. Certainly I had no illusions about where a PA's job was on the totem pole. I knew the majority of my job would be making coffee runs to the nearest Starbucks. But this was a chance to work on a Superman film. SUPERMAN! For those who don't know me, Superman is my jam, particularly Christopher Reeve's iteration. Not enough to name my kid Kal-El or anything, but growing up, he meant a lot to me. He represented the ideal of heroism and goodness in a world that seemed continually bereft of both. He was what I wanted to be. It didn't matter that the script Ratner was working from (written by J.J. Abrams) had leaked online and been universally lambasted. It didn't matter that Ratner had only one good film under his belt and was widely considered a hack. It only mattered that it was Superman and I would be on the same set as him. How could this not all work out?
Oh my friends, how I'd love to tell you the gambit paid off. And if life were more like a movie, it would have. But within weeks of landing in L.A., Ratner was off the project and it reentered development hell. And all of a sudden, I had to make a life for myself in a strange place with no resources. You could say I acted recklessly, that I was dumb. And you'd be right to say that. A smarter man might have waited for an official job offer from Warner Bros, something in writing that I could hold in my hand on that plane ride across the country. But I was young and ambitious and excited to get started before there was even something to get started on. I upended my life without a guarantee of employment, only the vague promise of it.
But do you know how many artists do the very same thing? Sure, most don't move across the country for it, but it's so common for artists to get excited and start working on something before the deal is written down that it can take up anywhere from 50% to 75% of my law practice. So when I tell you to get everything in writing, I say it not just because it's smart business, not just because I see my clients going through it, but because I've lived it and know what can happen if you don't. Getting all your deals in writing protects your interests and holds everyone accountable. It should be an invaluable tool in your arsenal. So learn from my mistakes. If the job is important enough, it can wait until everything is written down.
Because I’m a parent to a small child, I don’t get to the movies as much as I’d like. This means I’m usually months behind on the latest hits. Such is the case with Hell or High Water, last year’s critical darling from director David McKenzie and writer Taylor Sheridan. I missed its theatrical run and all the awards hoopla, but thanks to the magic of premium cable, I was able to watch it 100 times in a row when it premiered on Showtime this week. My verdict? It’s my new favorite movie.
And what’s not to love? Chris Pine’s smoldering steeliness? Ben Foster’s mustache? Enigmatic dialogue dripping with portent? Dammit this movie is great! It’s almost like Sheridan’s films (including Sicario and Wind River, which I’M DYING TO SEE) were created in a lab just to appeal to my sensibilities.
Anyway, on my thirtieth or fortieth rewatch, something stuck out that I thought was worth writing about: the movie nails how slow, methodical, and full of dead-ends the investigative process can be.
The narrative thrust of Hell or High Water is that Toby and Tanner Howard - Pine and Foster, respectively - are trying to save their family ranch from foreclosure the only way they know how: by robbing branches of the very bank that's about to foreclose on them. Toby, an unemployed oil worker, and Tanner, an ex-con, are carrying out early morning heists of branches located in quiet, ramshackle towns like Olney and Archer City because they're less likely to get caught. As their lawyer points out midway through the film, it's a big beautiful middle finger to the banks that have helped level the Texas middle class.
You know, they loaned the least they could. Just enough to keep your mama poor on a guaranteed return. Thought they could swipe her land for $25,000. That's just so arrogant, it makes my teeth hurt. To see you boys pay those bastards back with their own money? Well, if that ain't Texan, I don't know what is.
Meanwhile, Texas Rangers Marcus Hamilton (Jeff Bridges) and Alberto Parker (Gil Birmingham) are hot on the trail. They spend time interviewing witnesses and gathering evidence as all good cops do, but Marcus realizes the brothers are planning at least one more robbery. So in order to catch them in the act, he picks one branch in Coleman, TX he expects them to rob, and plops himself on a bench right in front of it. Alberto, who Marcus has been mercilessly teasing throughout the film, isn’t happy about it.
So, this is your plan? We're just gonna sit here and see if this is the branch they rob next?
What would you rather do? You wanna drive 80 miles back to Olney and look for more fingerprints that we ain't gonna find? Or you wanna drive 200 miles back to Lubbock and look at mug shots that don't matter because nobody knows what these sons of bitches look like? Or we can just wait here for them to rob this bank, which is the one thing I'm pretty damn sure they are going to do.
Marcus is right. Sometimes there just aren't any leads to follow. No more interviews to be had. The only thing you can do is wait. At no point in the film (until the climax) does it feel like the Rangers are closing in on the Howard boys. In fact, most of the film it feels like they're hopelessly behind the ball.
After the second robbery, Marcus sits at a table in a diner and chats with some good ol' boys who saw Tanner and Toby rob the bank across the street. There doesn't seem to be any urgency in the way Marcus and Alberto conduct themselves. There's even a little joking back and forth between them and the old-timers. That’s what real investigations look like. It's methodical. One step at a time. Gather the evidence, write it down, move onto the next piece. It's halting and can often feel like wheel-spinning.
I've been an investigator, both as an attorney and as a producer. I've worked on numerous criminal and civil investigations and I can tell you that they are rarely as action-packed and exciting as you see in movies and TV. Most of the time, it’s boring grunt work. In my TV days, I worked on law enforcement shows with both active and retired detectives who all told me the majority of investigations were spent in the office reading documents. A private eye I used to work with told me 90% of his job was sitting in a car waiting for someone to come out of a house. I’ve personally worked on investigations so dull I thought I would literally die of boredom.
Years ago I was interning at the DA’s office in Boston and we were investigating a woman suspected of prescription fraud. Most of my efforts were spent cataloging the hundreds of times she got a prescription and which pharmacies she filled them at. This meant putting all that information into a gigantic Excel spreadsheet. It was painstaking work and it took weeks. But that spreadsheet was key to nailing down her pattern and building a case. We’d never have been able to issue an indictment without it.
But you know what else? Marcus is also wrong. Turns out, he picked the wrong branch to stake out, a fact he only realizes the next morning when the Howard brothers don’t show up to rob the joint.
I think I got this figured. First two banks, they were Texas Midland banks. All right, there are seven branches altogether. The main branch is in Fort Worth. They're not gonna mess with that. All right? They hit the branch in Olney. They hit the one in Archer City. Then there's the one here.
Which they did not hit.
Alberto, will you please follow me? Just keep your mouth shut and just listen to what I'm gonna say. There's the one here, then there's the one in Childress. There's the one in Jayton.
That one's closed.
I know that one's closed! I know that one's closed, Alberto. That's my point. Jayton is closed. That just leaves Post. They're not gonna mess with the bank in Childress, that's a fairly decent-sized town... It means that the only branch that fits the bill is in Post.
Lots of times, you make educated guesses that make sense in the moment but end up being wrong just ‘cuz. In the movie, Marcus figured the brothers would hit the Coleman branch, likely because it was a small one-teller stop, and would draw little attention. And indeed, the scene immediately preceding that showed the brothers arguing over that very issue. But in the harsh light of day, Marcus realized he made the wrong call. Which happens. And then he had to speed across the state to Post, TX to make up for it.
Investigations aren’t sexy or thrilling or dramatic. There are false starts and bad calls and they’re monotonous and take a long time. And sometimes, they require you to just sit around and wait for something to happen. But if you want to catch your man, sometimes that’s what you gotta do. Commit to the boring stuff no one else wants to do.
Imagine one day you decide to start a podcast. You're very excited about your new venture and spend countless hours researching topics, writing copy and setting up your recording booth just so. But you know that if you want people to listen, it needs to be entertaining, and 45 minutes of you talking into a microphone won’t be. It's got to be a real multimedia experience; that's the difference between entertainment and lecture. Among other things, you'll need music, maybe some sound effects, and even archival audio material to spice things up.
So where do you find those things? And when you find them, do you properly attribute them? Do you request permission to use them and pay a fair licensing fee? If there’s something specific you want, do you make a good faith effort to find the owner, or do you just take it? If you don’ have satisfactory answers to these questions, you may want to rethink your strategy before you hit "publish."
One hallmark of being an artist is excitement about your latest work and a strong desire to get it out into the world. You want people to see it, to comment on it, and hopefully, to enjoy it. Any artist who claims otherwise is lying - to you or themselves. It's easy in that situation to get tunnel vision and let caution fall by the wayside. When momentum is on your side, why get bogged down in administrative matters?
I understand that impulse as much as anyone. I've been an artist (I like to think I still am) and I see it with my clients. But I want to take this space to urge you, dear artists, not to stick your head in the sand and assume no one will care about those administrative matters. Even if you don’t, I promise you someone else does. I’ve long advocated on this blog for sweating the business stuff because being an artist these days means being a business owner - whether or not its formalized and even if it's not a primary means of income. Using the copyrighted work of another without permission puts you and your business in jeopardy. Maybe not today and maybe not tomorrow, but eventually someone is going to notice, and they're not going to accept "I didn't know" as a reasonable excuse.
It's tempting to pin your hopes on fair use, but the problem with fair use is that to prove you’re covered by it, you need to defend yourself, which almost certainly means thousands of dollars in legal costs. Some courts view fair use as a right, while others view it merely as a defense (which means you can't assert fair use until AFTER you've been sued), but practically speaking, the only way to know for sure whether fair use applies is for the litigation to play out. Just saying the words "fair use" is no more a shield against litigation than yelling "I declare bankruptcy" a way of erasing debt.
We live in a litigious society. And IP holders, especially large corporate ones, have no compunction about hailing little guys into court over minor infractions. Defending yourself will take money you don’t have, and months or years out of your life. Sometimes, companies go bankrupt simply defending themselves in court. I can assure you that even if you win, it’s not worth it.
Which means - let’s say it together - you have to sweat the business stuff. You need to have things like contracts, bills of sale, release forms, licensing agreements, and business bank accounts. It means you probably have to incorporate your business. It means you can’t rely on fair use unless a lawyer tells you it’s okay. It means you have to ask permission to use work you didn’t develop. There’s a lot more to it than that, but you get the gist.
Don’t stick your head in the sand, hoping that ignorance will save you. Pay attention to the administrative matters. Build it into your schedule and workflow. If you hate doing it (welcome to the club), have a friend or spouse or family member help you. I’m not trying to rain on your parade. I’m here to tell you the rain is coming one way or another. I just want to make sure you have an umbrella.