When Is A Risk Worth It?

When Is A Risk Worth It?

Lawyers are cautious by definition. We want you to make good decisions before you act because that’s how you insulate yourself from lawsuits (and make our jobs easier as well). Personally, I’m a bit less conservative than the average attorney. Maybe it’s my background as an artist, but if the winds are favorable, I’m willing to take risks now and then, and I’m willing to counsel my clients to do the same.

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When Is It Okay to Write a Bad Review of a Client?

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If I had a dime for every time a client complained to me that a customer violated a contract, well thankfully I’d only have like 50 cents. But still, it does happen. And when it does the client sometimes asks me if it’s okay to write a bad review online. That’s when I hesitate.

Whenever possible, You should never badmouth a party in public at all… yes even one who acts in bad faith. But if you’re absolutely going to do it no matter what, you should definitely wait until you’ve recouped what you’re owed (or as much of it as you can) from them and acquired a written history of their bad faith actions. Even then I’m hesitant to advise it. I’m a big fan of killing them with kindness no matter how badly you’re treated, because if you’re ever involved in a litigation, all of your communications will come out in discovery; you don’t want a judge or jury thinking YOU’RE the asshole in this transaction.

Most people don’t write bad reviews when they’re in a good frame of mind. They’re upset - understandably so - but not necessarily thinking clearly about the long-term effects of their actions. So it’s really easy for a person who has been harmed and is mad about it to overstep and accidentally defame the offending party. And the last thing you want is to be sued for defamation when you’re the victim.

There’s a fine line between warning people of bad faith operators and defamation. Defamation is defined as a statement to at least one other party about a person designed to ruin that person’s reputation. Usually the statement must also be false, but that is not a requirement in every state. When the defamatory statement is spoken, it is called slander, when it is written or otherwise recorded, it is called libel, but no matter what form it takes, the effect is the same. 

Your intent in making the statement also matters, as well as the defamed party’s public status… if the party is a public figure (politician, celebrity, etc), for example, your statement must be made with malicious intent, while a statement against a private figure must only be made with negligence. It’s also worth noting that simple name-calling is generally not considered defamation and statements of opinion might also not be considered defamatory (depending on context, of course) since they are harder to prove.

Here are some examples:

“Don’t work with John Smith Productions. They purposely stole my idea and cut me out of the production without paying me!” This is most likely defamation if the statement is false because it asserts as fact that the production company stole your work (on purpose, no less).

“I think John Smith Productions used my copyright without asking me.” Because this is a statement of opinion, it is less likely to be considered defamatory, though it wouldn’t necessarily prevent the production company from suing you anyway, especially if the statement is untrue.

“John Smith Productions is filled with conniving thieves and John Smith is the worst of them all!” Whether or not this is factually true, because this statement is merely name calling and doesn’t allege actual wrongdoing, this would not be considered defamatory.

What I tell people who are determined to write a bad review online is this: divorce yourself as much as you can from emotion. Statements of fact that you can actually back up with evidence are best. And of course, make sure that whatever you say is TRUE. When in doubt, be kind and truthful. Just because you were treated badly doesn’t mean you have to become the bad guy too.

UPDATED! Defamation and The Donald: How To CYA When Standing Up To A World-Class Bully

There’s a difference between a dispassionate telling of the facts, and a heated accusation of wrongdoing. The more your remarks hew towards the latter, the more likely you veer into defamation territory, which robs you of the high road and puts you in danger of getting sued yourself. The last thing you want, as a victim of copyright infringement or breach of contract, is to defend yourself against a defamation claim. And the more prominent they are, the less likely they are to feel bad for suing you. After all, they have a bottom line to maintain, don’t they? 

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Paramount Releases Star Trek Fan Film Guidelines, Shows Other Studios How To Interact With Fans

Surely you’ve heard by now the story of the troubled fan film, Star Trek: Axanar. The film, which had earned over a million dollars from backers on Kickstarter and Indiegogo, was sued by Paramount for violating “innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes." While Star Trek fan films have been around forever (I was a Trekkie as a kid and remember seeing them a lot at meetings and conventions), Paramount was concerned about Axanar’s size and scale - high quality visual effects, name actors, feature-length runtime, etc. I guess they were concerned that a film of sufficient quality could impact not only the release of Star Trek Beyond, but its future slate of Trek films and spinoffs. 

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On Bill Watterson’s Refusal To License Calvin and Hobbes

When Calvin and Hobbes went out of print twenty years ago, I think most people assumed it would return at some point. I know I certainly did. Calvin and Hobbes was a formative part of my youth - the sly brilliant writing and stark black and white illustrations providing color to my sense of childhood wonder and adventure. Watterson had the innate ability to put on the page something that spoke directly to the brash creative misfit lurking deep inside of me (or maybe not so deep if my mother is to be believed), like he was illustrating the comic for an audience of one. With something so clearly loved by its creator and so personal, I just couldn’t envision a world where there would be no more new ones. And if Calvin and Hobbes had been created by anyone other than Bill Watterson, we probably wouldn’t have heard the last of it. 

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