{"id":733,"date":"2012-06-27T12:40:52","date_gmt":"2012-06-27T16:40:52","guid":{"rendered":"https:\/\/thecopyrightzone.com\/?p=733"},"modified":"2012-06-27T12:40:52","modified_gmt":"2012-06-27T16:40:52","slug":"arbitration-you-want-arbitration-you-cant-handle-arbitration","status":"publish","type":"post","link":"https:\/\/thecopyrightzone.com\/?p=733","title":{"rendered":"ARBITRATION? You Want Arbitration? You can’t handle arbitration!"},"content":{"rendered":"

It is a commonly held myth<\/strong> that arbitration as a method of dispute resolution is faster and cheaper than litigation. \u00a0Entertainment companies, publishers and ad agencies who financially benefit by screwing photographers and illustrators, frequently insert an arbitration clause in their agreements requiring that any disputes (often including claims of copyright infringement) be arbitrated via a private arbitration service rather than litigated in our courts. \u00a0Photographers who cling to the notion that arbitration is cheaper and better, often sign such agreements requiring arbitration without consultation with a lawyer or having a second thought.<\/p>\n

Little do they know that arbitrating disputes is a far more expensive proposition for a photographer or illustrator than filing a legal action.The costs are frequently prohibitive and prevent the creator from ever seeking redress via the arbitration process. Here’s why:<\/p>\n

Say a photographer files a copyright infringement suit in Federal Court in New York. \u00a0The court’s filing fee is $350. \u00a0Regardless of the complexity of the case or whether the case is settled early on or ends after a trial lasting one month, the photographer’s court fees will likely total $350. \u00a0Judges do not get paid for their time in deciding motions, reading papers or presiding over trials. Court fees are essentially a one time, flat, affordable fee.<\/p>\n

Arbitrators on the other hand, get paid for all <\/em>of the time they spend on a case. \u00a0Fees generally <\/em>range from $2,000 – $4,000+ per day, per arbitrator. \u00a0There are additional fees that are payable to the various private services such as The American Arbitration Association or JAMS who run these hearings and provide the venues. \u00a0The arbitrators get paid to read papers, decide motions and to hear a case – if there is ever a hearing. \u00a0Some agreements provide for more than one arbitrator. \u00a0While amounts vary, it is not at all unusual for a party to incur $20,000 – $40,000 in arbitration costs before<\/em>\u00a0any hearing on the merits ever commences.<\/p>\n

These fees are of course, in addition to sums paid attorneys. \u00a0Even if<\/em> an agreement provides for the recovery of all or a portion of such fees by the prevailing party, one still needs the resources to lay out tens of thousands of dollars which would not be required if the matter were in the courts. \u00a0The amount of\u00a0time spent by lawyers for similar type cases whether arbitrated or litigated, is virtually the same. \u00a0Worth repeating, legal fees in controversies whether litigated in the court or arbitrated are utterly comparable. \u00a0No legal time is saved via arbitration.
\n
\nClients<\/em> of creators are nearly always better capitalized than individual creators. \u00a0They can lay out the money win, lose or draw. Can you?
\nCan you afford to lay out say $25,000 in arbitration costs, plus attorneys\u2019 fees betting that you will ultimately be successful on your claim? \u00a0That same case would be $24,650 cheaper in a Federal Court.
\n
\n<\/strong>A few other items\u00a0to remember about arbitration:
\n
\n1. \u00a0<\/strong>Typically an arbitrator’s decision is not appealable absent extreme circumstances ie proof that the arbitrator accepted a bribe. So a wrong decision will remain a wrong decision;<\/p>\n

2. \u00a0An arbitrator need not base his\/her decision on the applicable law(s). Yes, you did read that statement correctly;<\/p>\n

3. \u00a0Entertainment and media companies put arbitration clauses in contracts to deter creators from bringing claims but when claims are brought, the arbitration service is getting paid thanks to the inclusion of the clause by the media company\/publisher. \u00a0The media company\/publisher is thus a customer<\/em> of the arbitration service. \u00a0The bigger the company the greater number of disputes, the more disputes the more fees paid to the private arbitration service. \u00a0Some of us lawyers may be cynical but we think that tips the scales in favor of the big companies and against the little guy who is virtually always a solo creator with limited financial resources. \u00a0
\n<\/strong>
\n4. \u00a0You lose your right to a jury.<\/em> \u00a0Juries are the great equalizer. \u00a0Juries tend to side with the “little guy”, the “David” not the “Goliath”. \u00a0You have a constitutional right<\/em> to both your copyright and to have a trial by a jury. Why would you possibly give up your constitutional rights\u00a0before<\/strong>\u00a0you even knew what the nature of your dispute would be?\u00a0 You might have a lousy judge but a great jury. \u00a0If you have a lousy arbitrator you are SOL.<\/p>\n

Arbitration as a concept, strikes just the right warm, fuzzy, non-confrontational tone that appeals (pun intended) to the sensibilities of creatives. \u00a0Creatives are suckers and the media companies are well aware of that fact. \u00a0Ed\u00a0dissuades creatives from agreeing to arbitration as a means of dispute resolution virtually without exception. \u00a0Will this article help dispel the myth held by creators that arbitration is cool? \u00a0Probably not, as the unfounded proclivity to arbitrate is so entrenched in the minds of creatives that logic is left behind.<\/p>\n","protected":false},"excerpt":{"rendered":"

It is a commonly held myth that arbitration as a method of dispute resolution is faster and cheaper than litigation. \u00a0Entertainment companies, publishers and ad agencies who financially benefit by screwing photographers and illustrators, frequently insert an arbitration clause in their agreements requiring that any disputes (often including claims of copyright infringement) be arbitrated via […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-733","post","type-post","status-publish","format-standard","hentry","category-copyright-info"],"_links":{"self":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/733","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=733"}],"version-history":[{"count":2,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/733\/revisions"}],"predecessor-version":[{"id":735,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/733\/revisions\/735"}],"wp:attachment":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=733"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=733"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=733"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}