{"id":1177,"date":"2014-01-08T21:18:08","date_gmt":"2014-01-09T02:18:08","guid":{"rendered":"https:\/\/thecopyrightzone.com\/?p=1177"},"modified":"2014-05-06T11:09:29","modified_gmt":"2014-05-06T15:09:29","slug":"but-im-honest-almost-98-of-the-time","status":"publish","type":"post","link":"https:\/\/thecopyrightzone.com\/?p=1177","title":{"rendered":"But I\u2019m Honest Almost 98% of The Time"},"content":{"rendered":"

The act of taking funds out of the cash register and diverting them for some illegal, unintended or illegitimate purpose is commonly called “skimming”. \u00a0One who is caught engaging in such activity at say a casino, often disappears for eternity.
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\n<\/i><\/b>A “defalcation”<\/b>\u00a0is an amount of funds misappropriated (a\/k\/a “stolen”) by a person trusted with receiving and disbursing funds for the benefit of other people. \u00a0An agent, rep or stock agency which receives funds at least a portion of which are intended for a photographer or artist stands in what is called a “fiduciary relationship” with that artist. \u00a0\u00a0Defalcation is the term used by Bankruptcy Courts<\/a>\u00a0to describe a category of bad acts such as \u00a0embezzlement or misappropriation that cannot be discharged (forgiven) in\u00a0a\u00a0bankruptcy<\/a> proceeding. \u00a0These acts do not need to rise to the level of criminal conduct but generally need to be something more than mere mistakes or negligence. \u00a0These activities are viewed as being so bad that the Court won’t let the bad guy off the hook.<\/p>\n

An agent or rep who takes funds due the artist and uses them for their own purposes has “converted” those funds and may be subject to civil (or criminal) penalties which far exceed the amounts stolen.<\/p>\n

Recently Ed had two cases where the Courts awarded photographers punitive damages as a result of their agents not paying the sums due the artists in a timely fashion – or at all. \u00a0Every state has different standards on how to assess the amount of money a “thieving” agent must pay the artist who has been wronged. \u00a0These damages often called “punitive damages”, may be assessed as a penalty and can far exceed the amount of money misappropriated by a rep or agent. \u00a0This is but one of the reasons why we urge all artists to do their own billing and pay their agent rather than the other way around.<\/p>\n

So why are we covering this important topic again? \u00a0Well it seems that in yet another litigation where Ed is representing an artist whose monies had “gone missing” while in the hands of a rep, the rep admitted in Court that “yes” it is true that there are funds due the photographer which have been diverted by the rep without consent of the photographer… “…but this figure represents only<\/i> 2.1 % of all monies handled by the rep on photographer’s jobs over the years”.
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\nAdding up all of the payments made on photographer’s invoices issued by the rep during their relationship yields a number in the neighborhood of 4 Million Dollars. \u00a0The rep has thus admitted<\/i> to diverting “only” about 80,000<\/i> bucks US. \u00a0Hey no biggie because according to rep, 97.9% of the funds were handled pretty well. \u00a0The rep was utterly blas\u00e9 and heck why not,after all it was not her <\/i>$80,000. Of course it became<\/i>\u00a0her $80,000.<\/p>\n

The cavalier attitude that agents and reps have with respect to their artists’ hard earned money, endures over the decades. \u00a0It persists because many artists are equally as cavalier about not doing their billing, not having accountants check their agent’s records or foolishly trusting in reps as if their first names started with “Saint”.<\/p>\n

Rest assured that a cashier at a Denny’s a or a teller at Bank of America would be looking at the inside of a prison cell if 2.1% of the money they handled found its way into their pockets. \u00a0A business owner who skimmed (or failed to report) 2.1% of gross sales in an effort lower his tax bill, would similarly be talking with a lawyer and meeting lots of folks with IRS badges. Such conduct is unacceptable, unethical and typically criminal in almost any line of work.<\/p>\n

This is hardly the first rep that a photographer\/client of Ed has caught misappropriating funds. The rep’s boasting of an “efficiency rate of 97.9% while handling photographer’s jobs” was however, more than a tad surprising. \u00a0As the great Lily Tomlin said, “I try to stay cynical but it\u2019s never enough to keep up”.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The act of taking funds out of the cash register and diverting them for some illegal, unintended or illegitimate purpose is commonly called “skimming”. \u00a0One who is caught engaging in such activity at say a casino, often disappears for eternity. A “defalcation”\u00a0is an amount of funds misappropriated (a\/k\/a “stolen”) by a person trusted with receiving […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[151,15,5,20],"tags":[288,287,291,290,289],"class_list":["post-1177","post","type-post","status-publish","format-standard","hentry","category-be-aware","category-legal","category-paperwork","category-stuff-you-should-know","tag-bankruptcy-courts","tag-defalcation","tag-fiduciary-relationship","tag-misappropriated-funds","tag-skimming"],"_links":{"self":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1177","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1177"}],"version-history":[{"count":2,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1177\/revisions"}],"predecessor-version":[{"id":1179,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1177\/revisions\/1179"}],"wp:attachment":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1177"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1177"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1177"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}