Its no secret that this economy has hit photographers, models, illustrators, graphic designers, ad agencies and real estate brokers really hard. Rarely mentioned is that lawyers have similarly suffered in an economy where there are fewer home sales and business transactions, consumer/business credit is tight, many people can’t afford to get divorced and if you are not familiar with bankruptcy law you are likely to be a lawyer who drives a cab. People and companies at all levels have less money to spend on essential goods and services, not to mention lawyers.
People who buy a car or a washing machine can drive or “see” the money they spent and use the item daily. The same can be said for the services of a dentist who has replaced a missing front tooth. Many times however, money spent on legal services appears to fly out the window. Lawsuits may take a considerable amount of time and attorneys often cannot generate instant results because unlike doctors or even plumbers, they are generally being opposed by someone (or group of someones) who presumably are well trained and capable of preventing or delaying the relief sought. This aspect of the practice of law is generally ignored by the general public. A contractor may face a challenge in building a house on unstable soil but at least there isn’t another contractor looking to sabotage the project. Not so in the legal game.
Often times that opposing attorney or law firm benefits from superior resources in the forms of staffing, money or a client who simply does not pay attention to what its lawyers are doing. Artists who threaten or sue media companies, newspapers and the like are most often faced with anything but a “level playing field”. Typically the creator has hired a solo practitioner or small law firm. The defendants are usually possessed of both “in house” and outside legal counsel. An attorney who is in house is generally (not always) an employee of the company are rarely if ever actually litigates a case in court. In house counsel typically hires an outside firm to deal with litigation real or threatened. That outside/litigation firm is typically, indeed almost always, paid its fees based on the time consumed by its lawyers and staffers in handling a matter. Efficiency is therefore, not encouraged. Billing “lots of time” is. In this economy such firms need to bill and charge just like any other business. Law firms have rent, employee salaries and Staples bills just like any other business.
An award of attorneys’ fees in certain copyright actions levels the field on some occasions. Remember any such award only comes if the creator’s work was registered, eligible for statutory damages and a judge or jury has ruled in the artist’s favor – yet another reason to register your work. Many attorneys are not willing to finance the effort and work for many months or years without getting paid on some regular or irregular basis. Cases brought on behalf of models or subjects whose images were employed for commercial use without consent (no written, signed model release) even if successful are typically not awarded attorneys fees. It is in the plaintiff’s attorney’s interest to move swiftly and efficiently. It is in the defendant’s attorney’s interest to move slowly in order to maximize the amount of time spent and thus its legal bills tend to be high but their clients are generally “good for it”. That the defendant likely can outspend you a thousand times over is a given.
If you have retained an attorney on a contingency basis – where he/she is paid only if there is a recovery via settlement or trial, make sure that your attorney has handled similar matters, on the same fee basis up through trial, verdict and collection. If this fee basis is new to the lawyer or he/she is inexperienced, the economic realities of such cases on an attorney or law firm can be devastating (See “The Verdict” or “A Civil Action”). Remember most lawyers are not rich and both experienced attorneys as well as young, eager law school grads are as of this writing, jobless. Cynical? You bet. Are there exceptions? Absolutely, but 33 years of experience in the trenches dictates many of the suggestions we make. Many a lawyer has taken out a mortgage and put the family’s future on the line to finance a case he/she believes in. Unlike the movies, endings in real life are not always happy.
Often a responsible defendant’s attorney responds to (just) a demand letter and if the claim has merit, the matter is settled after some degree of back and forth. More often than not however, the artist is compelled to at least file suit in order to “be taken seriously”. Once suit is filed, it is often like the commencement of the Olympics, “Let The Games Begin”. What does this mean to a photographer, model or artist seeking legal relief in a copyright, contract or right of publicity/privacy case? Here’s a checklist (in no particular order) of things to look out for.
Remember not all of these things happen in every case. In fact, blissfully sometimes none occur. Each is designed to make the case more expensive and more time consuming for you and/or your lawyer. Many of these techniques can be justified in much the same way as doctors do when they run unnecessary tests, “to be sure”. All on the surface bear at least a semblance of merit. Do the Courts have checks and balances on the below behavior? Sometimes, not really, occasionally, it depends… Any one lawyer giving a simple, straight answer to that question may teach law school but does not actually try flesh and blood cases. We are pleased to report that there is a trend in the Federal Courts to penalize lawyers or clients who bring bogus cases or use stalling as the basis for their defense.
1. Requesting The Production of Tax Returns. If your suit makes a claim for lost wages, earnings, income, devalued imagery, lost sales etc. such a request may be perfectly legitimate. But what if as has happened to our clients, you were: a topless dancer, car hop, waiter, drug dealer, hooker, S&M performer, married previously but never told the current spouse or simply had a “cash” business legitimate or otherwise? What if you haven’t filed taxes for say, 10 years. A failure to file a return or report income accurately can at least affect your credibility should you ever take the stand. Sometimes the use/possession of a fake Social Security card would subject that client to being arrested by ICE on the spot. Embarrassing for Ed who would then need to explain to some adorable children why their daddy wasn’t coming home anytime soon. Can these problems be overcome? Many times the answer is yes. Sometimes the client does not want to run the risk or being exposed to the authorities or worse, to their spouse.
2. Bury your lawyer with documents/Don’t provide documents. In one incident a reasonable request for the production of relevant documents resulted in an 18-wheeler suitable for Ice Road Truckers hauling documents to our office all for viewing by Mr. Greenberg’s two blue eyes. Parked out front of a Manhattan office building, the scene was, shall we say, memorable. A model used on a package without consent. Document production produced 25,000 pages. The intent is to provide so much stuff that the relevant and the irrelevant will never be fully viewed before the Cubs win another World Series.
Did you know that companies have: fires, floods, hard drives that crash and are then discarded, equipment with records (ie photo copy machines) which went back to the leasing company, ex employees steal company computers and neither can be found, sophisticated companies which handle millions of 35mm slides and prints don’t use bar codes? The excuses above are all real. They are also endless. Every attorney reading this piece can fill in the sentence, “The ( e-mail, letter, disc, letter, etc) can not be located because ___________________________”. One more thing, people lie. In litigation, they lie a lot.
3. “No Pay Case” In the legal biz, an attorney who will settle early on is known as a “pioneer”. The opposition advises your lawyer that it will under no circumstances pay any settlement, never, no matter what. Signal being sent to lawyer, “You will have to go to trial to see any money”. Sometimes this is a legitimate position taken by a legitimate company for a legitimate reason…sometimes. Usually the intent is to scare you the client and make you (and your attorney) feel that there is a very long road ahead, its loaded with lots of busy work for both you and your lawyer and its probably not going to be worth it.
4. Make Motions. A motion is anything that a lawyer wants that is incidental to the main case. There are about a hundred different types of motions running the gamut from frivolous to dead serious. One example – our opponent wanted to take a deposition in Green Bay, Wisconsin (not football season) even though the case is in a NY court and the other side lives in Phoenix, AZ. Now if the witness were sick or dying that might make sense. Not so here. Witness was healthy as the proverbial Clydesdale and had lots of money to spend on his brother in law’s law firm. So long as a motion is not completely, utterly without a semblance of merit courts general don’t award “real” attorneys fees (if any) even if your lawyer wins the motion.
5. Stall. Wait till the last minute on everything. Drag the case out. The lawyers will do busy work as long as they can bill the case and stall the ultimate day of reckoning. They hope for someone to die, run out of money or simply give up. Happens every day. Often done when on day one the defendant intends to settle all along but decides to drag it out, hold on to the corporate money as long as possible, admit nothing and give in just before the lawyer has to pick a jury – something many lawyers have never done in their lifetime. Still others have no clue how jury selection works in their jurisdiction. Away from the security of their desk, many would be totally lost if actually trying a case became necessary.
6. Take Endless Depositions. This is my personal favorite because it generates the best anecdotes. During the pre-trail discovery phase each side cross- examines the other and sometimes the other’s expert witnesses. These depositions are not conducted in court rooms but rather in lawyers’ offices with no one from the court present. The idea is to see what each side has and ideally resolve the matter short of trial once each side knows both the strengths and weaknesses of each other’s case. There are few, very few lawyers who know anything about the photography industry nor (especially) the modeling industry. These attorneys takes endless hours of every one’s time to educate themselves on a most interesting industry. They use the deposition as a paid educational seminar to learn about a business about which they know nothing. Many have seen “America’s Top Model” and are thus intimately familiar with all of the modeling world’s nuances. It also gives them something “different” to talk about at the country club.
On one occasion my female/client/model was an extremely attractive 20ish, “All American Girl”. My adversary was 30ish, male and very single. Clearly the deposition was taking too long. During a coffee break we came up with a brilliant solution. As we returned to the room “Mary” and I found ourselves already engaged in an animated conversation about how her boyfriend was progressing nicely through The Golden Gloves in the Light-Heavyweight division and thus would be in the main arena at Madison Square Garden. We were both so excited we asked our adversary if he was following the tournament. Mary told him that if he needed tickets she “could get him two and have her boyfriend’s beat partner Detective Munch (yes we did use “Munch’) drop them off”. The boyfriend was as fictional as Law and Order’s Det. John Munch. Ten minutes later we were on the subway.
On yet another occasion my witness (a President of a model agency) was being deposed in a case brought against a department store by a former model. The deposition should have taken under two hours. Over my repeated protests over some four hours, I told the attorney that we were leaving, we were done and he could complain to the judge all he wanted but my client “wanted to go home to his wife and I wanted to watch Blazing Saddles for the 42nd time” and he could, “tell the judge just those words”. He begged to talk to me outside of my client’s presence. He apologized profusely and told me that his firm had just been retained by a model agency (in an unrelated case) and thus needed to know more about the modeling business so as to be prepared for his new client. We bolted. If I were “Mongo” he’d still be lying there.
7. Use Lots of Lawyers When One or Two Would Suffice. Several years ago, our photographer sues a big stock agency. Early on in the case the judge wants to meet the lawyers so she can assess the players and find out more about “this unusual case”. I go accompanied by then law student, the always missed, the late Erica Galinski. Five lawyers and a “senior para-legal” show up for the stock agency. Of the five lawyers one is an ex-judge. A total of three lawyers are billing at well over $500 per hour. The ex-judge leads his crew to the counsel table and before he can open his mouth the sitting justice says, “Wow, Judge (“Smith”) three Senior Partners including you, and you’re a star! I’m honored. I gotta think that your client must be very guilty”. The clock runs for each lawyer. Most judges see right through it but few can or care to stop it. The more lawyers involved the longer your case will take. The more complicated your case the more money the other side makes.
The above is a short list. We’ll add some more in the coming months. Suffice for now to say that these types of cases have many speed bumps, roadblocks and brick walls. Lawsuits are never resolved in 48 minutes plus commercials. It takes guts and stamina to pursue these cases. Don’t be misled into thinking that the odds of a prompt, easy settlement are ever high.