Lawyers think that because they went through expensive and grueling training (and law school is expensive and grueling, make no mistake), they need to create a barrier between themselves and you, the client, to justify all that they went through. So they invent obscure, arcane, and impenetrable language to create that barrier. Worse yet, they've been doing it for so long that everyone thinks that contracts and other documents used in business have to be written that way in order to be legally binding.Read More
J. Warren St. John, the defense attorney for Eddie Ray Routh, the former marine who killed American Sniper Chris Kyle at a shooting range in 2013, recently gave an interview to The Hollywood Reporter complaining that the popularity of the film American Sniper will prevent his client from getting a fair trial. According to St. John, the film lionizes Kyle and as a result, it will be harder to find a jury that isn’t influenced in some way by the film’s portrayal.Read More
Before I started law school, I labored under the same misapprehension that many people do: that the law is a fixed thing with clearly delineated lines between what’s permissible and impermissible. I just assumed that law school would teach me where that line was and what sat on either side of it. My rude awakening occurred very early on in torts class when my professor’s canned response to any hypothetical from the class was “it depends.”Read More
Happy Friday dear readers! I had a post planned this week about the whole GamerGate debacle sweeping through Twitter like wildfire, but then my wife went into labor on Monday night and long story short, I'm a dad now and all my energy has been spent taking care of my wife and infant daughter Hannah.
But in the very little downtime I've had at the hospital, I found this chart online and thought I'd share it with you. It lays out in fairly clear terms when you can and cannot use someone else's copyrighted work. I initially hesitated to share this chart because while the information is generally correct, the law in reality is never this clear cut, and reducing it to a simple phrase or image can be a dangerous proposition. As I wrote last October:
I like to give away lots of free legal information on this blog because I think it’s important for artists to have a basic understanding about how the law interacts with them. I was once in your shoes. I’ve had my ideas stolen, my copyrights compromised, and been in situations where a little legal knowledge could have saved me from a jam or two. At the same time, you can’t cut lawyers entirely out of the equation simply because you possess that knowledge. Legal information without analysis is just raw data. It can’t give you advice or insight. It can’t examine your specific situation and provide you with synthesized options based on that data (i.e. just because you know the fair use factors doesn’t mean you know how to apply them). No two situations are the same and everyone’s needs will differ depending on a variety of unforeseeable factors. Only a properly trained lawyer familiar with your circumstances will be able to navigate that minefield.
This is a reasonable view and I stand by it. Law without anlysis is just data, and data without analysis is useless. That said, I'm sharing this chart anyway because some of you may not have the finances to hire a lawyer, and having some information is better than having none. In fact, I've whittled it down to a pretty simple formula.
Advice From Attorney > Info From Internet > Nothing
So hang onto this chart and use it when you need to, but just remember that this is only part of the story and it may not apply to your situation. Be careful out there and call me or another qualified attorney if you have any questions about what this all means.
I'll be back soon with my thoughts on GamerGate and some other recent news items. Until then, Cheers!
This past April, a former military police officer named Robert Galbraith released his debut novel, The Cuckoo's Calling to stellar reviews but terrible sales, selling only 1500 copies. As sales floundered, a British lawyer named Chris Gossage confided to his friend Judith Callegari that Galbraith wasn't a real person, but was in fact the pseudonym for J.K. Rowling, the most famous author in the world. Callegari then did what most of us would do when handed such a world-shattering piece of gossip - she blabbed to anyone who would listen, including a reporter. With the cat out of the bag, sales of Cuckoo skyrocketed to #1 on Amazon.
It's not hard to see why Rowling would do this. As wealthy and successful as Harry Potter made her, the pressure to rebel against typecasting must have been overwhelming. Following the release of Deathly Hallows in 2007, she sought to distance herself from the world of magic by writing a novel for an adult audience. The result was The Casual Vacancy, a thriller which sold like gangbusters, but was panned by critics. I imagine she took a great deal of satisfaction knowing that while Cuckoo wasn't popular when everyone thought Galbraith had written it (it's not like she needed the money), it found love from the very people who felt she could never write a book that wasn't aimed at children. She admitted as much on her website, saying that it was nice to be able to publish "without hype or expectation." So while Rowling was displeased with her identity being leaked, she had still proven her point.
Not everything worked out so well for Gossage though, a partner at the firm that represented Rowling. She sued the firm because he breached the inherent confidence present in the attorney-client relationship (which usually applies to the whole firm even if Gossage himself wasn't representing Rowling). Even worse, he was just slapped with a fine by the Solicitor's Regulation Authority (the organization that oversees attorney ethics in England) for violating a client's trust.
Regardless of which side of the pond you live on, attorney client confidentiality is a pretty big deal. In most cases, by the time a client seeks the aid of a lawyer, a crisis has happened and the client is often in the midst of a deep personal anxiety. Not only are they emotionally fragile, they are dealing with issues that might require the divulging of sensitive information. Anything from sexual abuse, to financial indebtiture, to murder is on the table, and needs to be discussed frankly in an open and safe environment. If the client can't feel comfortable discussing these issues, then the lawyer can't give the best legal counsel he or she has sworn to provide.
That trust is so important that every country with a judicial system has a rule protecting attorney-client confidentiality. In Massachusetts, where I practice, Rule 1.6 of the Rules of Professional Conduct states that:
A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation.
Without the client's express consent, a lawyer can only reveal confidential information in certain limited circumstances:
- If it would prevent someone from sustaining substantial bodily harm or death,
- To obtain legal advice about ethics,
- To defend himself against allegations of legal misconduct, or
- To comply with another law or court order.
All 50 states have a rule like this. Depending on the severity of the violation, a lawyer can be punished with fines (as Gossage was), disbarment, or even jail time. Most lawyers take client confidentiality very seriously, not just out of fear of punishment by the local examining board, but because it's the right thing to do.
Every American law student knows the tale of Frank Armani and Francis Belge, two American lawyers who represented Robert Garrow, who was accused of murdering Philip Domblewski in 1973 while Domblewski was camping in the Adirondacks with friends. During a consultation with Armani and Belge, Garrow not only admitted to killing Domblewski, he admitted to murdering and raping several other people. Garrow told them where he dumped the bodies, and his story was confirmed when Armani and Belge personally went to those sites to investigate and photograph the remains.
But because Garrow was their client, Armani and Belge couldn't tell the family members of the deceased where the bodies were. In fact, Armani and Belge kept silent for nearly a year, despite intense public pressure (they finally disclosed what Garrow had told them after Garrow admitted to the murders during trial). Because they had taken an oath to protect their clients' confidences (no matter how reprehensible), Armani and Belge were not able to discuss what Garrow told them without incurring potential legal repercussions.
In the grand scheme of things, the £1000 (about $1600) Gossage was fined amounts to little more than a slap on the wrist. Gossage claims that he himself is a victim of betrayed confidence, believing that Callegari would keep the secret. Regardless of his excuses, Gossage just learned a valuable lesson about talking out of school, especially when the client is as well-known as Rowling. He should count his lucky stars that she's a world-famous billionaire author, and not a psychotic rapist killer like Garrow.