Legal Stuff

How Can Museums Copyright the Works of Old Masters?

12 February 2019

From Artrepreneur:

Go to any art museum in the world and you’ll find hundreds of visitors with cameras in hand, snapping photos of their favorite, well-known works. Many of these great pieces no longer have copyright protection yet, these institutions often sell merchandise such as posters that claim the Museum has copyright ownership. As a copyright holder, that institution would have the exclusive right to reproduce the work, make derivatives of it, publicly display it, and distribute it. Conversely, that also means the copyright holder can stop anyone else from doing those things. Take the Monet poster of The Four Trees from the Metropolitan Museum of Art in New York City, shown here. This poster includes a copyright notice:  © 2010 MMA.

If the Monet is in the public domain, meaning free from copyright protection, then how can the Met Museum claim copyright on such an old work? If The Four Trees is really copyright free, then can someone sell an image of the work? Can the Met Museum stop someone from taking a photo of the painting and selling that photo or creating posters from it?  For that matter, who would hold a copyright on a photo of a copyright-free work?

. . . .

Let’s start with some basic tenets of copyright protection. First, the Copyright Act says that copyright protection is available for “original works of authorship fixed in any tangible medium of expression . . . ”  That’s just a fancy way of saying that the work is new and unique. It isn’t a copy or based on someone else’s work and the work has been produced onto something tangible that enables it to be perfectly reproduced and shown to others, such as a work on paper, photos from a digital camera, or a .jpg image file.

. . . .

In addition, the courts have said that for a work to be copyrightable, it must have some level of creativity. Admittedly, this is somewhat subjective and there is no “bright line” from which we know must be crossed to determine the level of creativity required. However, in general, the required level of creativity is very low.

So, if a work fits these criteria; original, tangible and creative, then copyright is automatic and immediate. For example, if you take a photo of your friends with your iPhone camera, the photo is automatically copyrighted because 1) the composition of the photo such as the placement and position of your friends and the setting is unique and original; 2) the choices you made when taking the photo, such as the angle  and distance is considered creative; 3) the photo is captured by the camera sensor so it is fixed in a tangible medium. All three criteria are therefore met.

. . . .

Now that we know the basic factors for copyright eligibility, let’s use these concepts to analyze whether the Met Museum can claim a copyright for the Monet poster. First, we know the poster is fixed in a tangible medium. In this case, it is the paper the poster is printed so that part is fine.

What about originality? One could argue that the Met Museum has merely reproduced Monet’s work so from that perspective it is just a copy and therefore, not original. In addition, Monet’s The Four Trees was created in 1893, and as discussed, any work created prior to 1924 is in the Public Domain. Reproducing artwork that is in the Public Domain cannot extend copyright protection; otherwise, every time a creative work had reached the end of its copyrightable life, the author could just take a picture of it to renew its copyright. The requirement for a limited time would essentially be meaningless.

If the Monet Poster is merely reproducing the Monet, then it cannot claim copyright protection.

. . . .

Well, the copyright isn’t in the Monet painting but in the poster itself.  If the creator of a work incorporates preexisting material from another creator, such as public domain or other copyrighted works, into his or her new work, the new work can receive a copyright if 1) the creator disclaims the preexisting material and 2) the remaining part of the work is copyrightable (i.e. original, in a tangible medium) and has some creativity.

. . . .

The Monet poster is no different. Monet’s The Four Trees is not the sole element on the poster but includes text that is not haphazard but designed, even if the design is a simple one. The position of the text on the page, the font, and size, as well as the choice of color (or lack thereof), are all creative choices and are unique to this poster. So, the Met Museum is claiming copyright protection for the layout of the poster, not the Monet itself, which it would have to disclaim.

. . . .

While taking a photo of a Public Domain work is free to sell from a copyright perspective, there are other legal issues to consider. One of these issues is contract law. When you buy your ticket to enter a museum, even if the museum is free to enter, there are usually Terms of Service that you agree to in exchange for entering the museum. The terms dictate behavior and rules of the museum and can be far-reaching, including expected behavior, age limits, use of certain equipment or even what size bag you are allowed to bring into the museum.

You automatically agree to the Terms of Service when you step onto the museum grounds. An explicit agreement, acknowledgment, or even knowing where to find them is not required. The Terms of Service are unique to each museum and can vary widely, especially between private, public or government-subsidized institutions. Most will include a section related to photography.

The Met Museum’s photography policy states:

“Still photography is permitted for private, noncommercial use only in the Museum’s galleries devoted to the permanent collection. Photographs cannot be published, sold, reproduced, transferred, distributed, or otherwise commercially exploited in any manner whatsoever. Photography is not permitted in special exhibitions or areas designated as “No Photography”; works of art on loan from private collections or other institutions may not be photographed. The use of flash is prohibited at all times and in all galleries. Movie and video cameras are prohibited. Tripods are allowed Wednesday through Friday, and only with a permit issued by the Information Desk in the Great Hall. “

According to these terms, despite the copyright issues discussed earlier, selling photos taken within the museum is prohibited and override any issues of copyright. So even though the work is in the Public Domain and the only place to take a true photo is at the Met Museum, you would still be unable to sell the photo taken there.

. . . .

So how can museums copyright paintings from old masters? As we have seen, they can’t. What they can do, though, is copyright the poster and place the copyright notice in such a way that it misleads people into thinking that they have this right.

Link to the rest at Artrepreneur

PG suggests that a wise museum director would think twice before attempting to enforce a “contract” printed in mouse type on the back of a ticket. (As a point of clarification, prior to the existence of computer mice, “mouse type” referred to tiny, almost unreadable type sizes used for disclaimers of various sorts).

A couple of litigation strategies and some other thoughts come to mind:

  1. One might argue that the form of the contract was inherently deceptive and unenforceable in that it was purposely designed to discourage reading.
    1. One might interview a random sample of museum patrons to ask them what agreements they made with the museum when they entered the museum and whether they had even noticed the existence of a contract on the back of their ticket.
    2. In such case, PG posits that one would be lucky to find one patron out of one thousand who knew anything about the terms of the “binding contract.” Is this a species of consumer fraud perpetrated by the Met?
  2. Since young persons frequently come to art museums, is the museum attempting to bind them to a contract when they are too young to enter into contracts under state law?
    1. As can be attested by large numbers of parents and grandparents, any child can take a photo with an iPhone.
    2. If a child takes a photo of a Monet on a school outing, can the child’s parent who was at work and didn’t go to the museum (and thus, was not bound by the “contract” on the back of the child’s ticket) exploit it commercially?
    3. In fact, if a group arranges a visit to the Met, does each member of the group actually receive a ticket with the “contract” language on the back? If the group is comprised of school children, does each parent sign a document that includes the terms of the Met’s contract, agreeing to be bound by that contract?
  3. PG has not entered the Met Museum for many years, but he doubts mouse type on the back of the Met’s tickets meets legal requirements necessary to accommodate those with vision impairment or other disabling conditions under various federal and state laws.
  4. One might argue that the Met’s photography policy is a poorly-disguised attempt to circumvent the copyright laws of the United States and France (and the various international copyright treaties entered into by each country over the years since Monet made his painting) by effectively extending copyright protections far beyond the terms permitted under the laws of the United States and such treaties.
    1. As the OP describes, the US Constitution permits Congress to enact copyright laws for the purpose of “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”.
    2. Whatever copyright protections Oscar-Claude Monet, the creator of the work, may have held have long expired, but the Met still deceptively attempts to treat the painting as somehow protected from unauthorized copying and reproduction in a manner equivalent to copyright protection.
    3. The Met helpfully provides the provenance of the painting:
      1. [Knoedler, New York, until 1893; stock no. 7287; their sale, American Art Association, New York, April 14, 1893, no. 362, as “The Four Trees (Poplar Series),” for $1,175 to Durand-Ruel]; [Durand-Ruel, New York, 1893–95; stock no. 1063; sold on January 12, 1895 to Havemeyer]; Mr. and Mrs. H. O. Havemeyer, New York (1895–his d. 1907); Mrs. H. O. (Louisine W.) Havemeyer, New York (1907–d. 1929; cat., 1931, p. 160, ill., as “Landscape—Les Quatre arbres”)
      2. In each of the transfers of the painting, beginning with its sale by Monet, was copyright to the painting explicitly transferred or, in the absence of an explicit copyright transfer, did Monet retain copyright and merely transfer the painting itself? Where’s the proof?

PG has blathered for too long. As an amateur photographer, he has always been annoyed by museums’ attempts to force patrons to purchase an often second-rate photograph of an artwork from the museum instead of permitting PG to take a more pleasing (at least for him) photo of his own for his personal enjoyment.

GTA V Cheat Maker Has to Pay $150,000 in Copyright Damages

8 February 2019

From TorrentFreak:

Over the past two years, there’s been a wave of copyright infringement lawsuits against alleged cheaters or cheat makers.

Take-Two Interactive Software, the company behind ‘Grand Theft Auto V’ (GTA V), is one of the major players involved. The company has filed several lawsuits in the US and abroad, targeting alleged cheaters.

Last August the company filed a case against Florida resident Jhonny Perez, accusing him of copyright infringement by creating and distributing a cheating tool. The software, known as “Elusive,” could be used to cheat and grief, interfering with the gameplay of others.

The “Elusive” cheat was previously sold online at prices ranging from $10 to $30, depending on the package. Before filing the lawsuit, Take-Two attempted to find out exactly how much money was made in the process, but Perez failed to hand over detailed financial records.

. . . .

According to the company, it’s clear that the cheat maker is guilty of both direct and contributory copyright infringement. As such, it asked the New York federal court for the maximum statutory damages amount of $150,000, plus $69,686 in attorney’s fees.

Take-Two argued that these damages are warranted because the cheating activity resulted in severe losses. According to an estimate provided by the company, the harm is at least $500,000. In addition, the maximum in damages should also act as a deterrent against other cheat developers.

. . . .

“Mr. Perez’s Elusive program creates new features and elements in Grand Theft Auto which can be used to harm legitimate players, causing Take-Two to lose control over its carefully balanced plan for how its video game is designed to be played,” he writes.

In addition, the Judge notes that the cheat discouraged users from future purchases and gameplay and that the unlimited currency cheat undermined Take-Two’s pricing and sales of legitimate virtual currency.

. . . .

In addition to the monetary damages, the Court also issued a permanent injunction prohibiting the cheat maker from continuing infringing activities moving forward.

Elusive hasn’t been available for sale since last year. It was taken offline after Perez was contacted by Take-Two.

“After discussions with Take-Two Interactive, we are immediately ceasing all maintenance, development, and distribution of our cheat menu services,” a public announcement read at the time.

At the time, the cheat maker informed its users that it would donate the proceeds to a charity which Take-Two could pick. However, the default judgment makes it clear that this money should go directly to the game company instead.

Link to the rest at TorrentFreak

PG says that, unsurprisingly, the author of the OP doesn’t seem to understand the difference between obtaining a court judgment against an individual defendant and actually collecting money from that defendant.

PG will make a few comments about collecting debts under the US federal and state court systems below. Different states have different laws and practices concerning the collection of a civil judgment against an individual or corporation, so, if anyone visiting TPV is trying to collect such a judgment, he/she will have to contact an attorney in the jurisdiction that issued the judgment.

As a general proposition, in the United States, an individual is not going to be sent to jail for failing to pay a civil court judgment such as the one which appears to be involved in the OP. While a great many states used to have debtor’s prisons, imprisonment for an unpaid civil debt is, for all intents and purposes, unconstitutional in the US unless it is clear the individual has the money to pay the debt.

If an individual fails to pay a criminal fine and a court determines that the individual has the means to do so, after being warned to pay the fine or work out a payment plan with the district attorney/state’s attorney/city attorney/etc., such an individual may be subject to imprisonment for contempt of court and would typically be held in jail until he/she paid the fine. After all, it would not be unusual for a violation of a criminal law to carry the threat of being sent to a local jail or imprisoned in a state or federal penitentiary as potential punishment. “Pay the fine or do the time,” is often a short-hand summary for criminal punishment.

Similarly, payment of court-ordered child support is treated as a special case and the failure to pay support when the individual has the means to do so may result in jail confinement for contempt of court. In this type of case, the court will often require that the non-custodial spouse pay a lump sum toward back child support and promise to continue regular child support payments thereafter as a condition of release.

Suffice to say, if an individual is unable to work, he/she is unlikely to continue to receive the fruits of his/her labor for very long, so those who are entitled to receive child support and family law courts will often try other means of pressuring an individual to make payments in lieu of incarceration.

For example, if the individual with the child support obligation is self-employed and works Monday-Friday, a court might order the individual jailed on Saturday and Sunday for contempt, then released on Monday morning to go back to work.

If an individual is employed by a third party, at least a portion of the money the third party owes that individual as salary may be garnished by the court so the employer pays part of the salary to the individual and part of the salary to the court to be turned over to the person who has a judgment against the employee.

Bank accounts, real estate, automobiles, etc., are also subject to seizure and, in the case of real estate and automobiles, for sale at an auction or some other public method of turning things into cash for payment of an individual’s civil debts.

Court records in most cases are public documents, so a judgment issued against an individual will almost certainly be discovered by various credit bureaus and be added to an individual’s credit report to that individual’s detriment. Ditto for judgment issued against a company.

The process of collecting most judgments in the United States will vary from state to state and between different courts operating within the same state. The disappointing bottom line for some people who win a court case in which the loser is ordered to pay the winner some money is that the winner will have to retain counsel for additional assistance in collecting the money. The court will usually not provide much in the way of affirmative assistance to help an individual collect the money the court has just awarded the individual.

PG’s general suggestion, one he has provided to countless clients over the years, is, “Don’t do business with crooks.” The chances of enjoying a profitable and hassle-free business relationship with a crook are not very good.

A corollary in the world of romance is “Don’t marry a crook” and, married or not, “Don’t have children with a crook.”

PG’s practical advice about avoiding crooks applies to the publishing world just like it does everywhere else. While a great many people are honest, at least some crooks infest every line of business. If a publisher fails to faithfully honor its obligations to other authors, including its obligations to calculate royalties fairly and pay them promptly, the chances that publisher will make an exception to its normal dishonest business practices for any particular new author are remote.

PG will repeat his standard disclaimer once again:

Nothing PG posts on TPV should be understood or relied upon as legal advice. You obtain legal advice by retaining a lawyer, not by reading a blog. PG only provides an overview of various legal topics on TPV for the general information of authors and others, not to assist anyone in understanding or resolving a particular legal issue.

PG is a lawyer, but he is not your lawyer unless and until you and he have a conversation about your legal issues and both of you signs a written retainer agreement under which PG is to provide legal services to you.

 

Musicians Attempt Class Actions Against UMG, Sony to Reclaim Rights to Recordings

7 February 2019

From The Hollywood Reporter:

For the past decade, a number of prominent musicians including Tom Petty and Bob Dylan have quietly attempted to reclaim rights to songs by serving notices of termination to publishers and record labels. Often, like in the case of Prince, these notices become invitations to renegotiate deals for more favorable royalty arrangements. But according to lawsuits filed Tuesday in New York federal court, in the face of hundreds of termination notices, UMG Recordings and Sony Music have “routinely and systematically refused to honor them.”

The named plaintiffs in the UMG case are John Waite, a solo artist and former lead singer of the 1970s group The Babys, and Joe Ely, who has recorded 18 solo albums and also was a performer on works by The Clash and Rosie Flores. In the Sony case, David Johansen of The New York Dolls, John Lyon (known as Southside Johnny) and Paul Collins of The Beat are hoping to lead the charge.

They are looking towards the Copyright Act of 1976, which extended the term but also gave artists who bargained away rights during the early part of their careers a second bite at the apple by allowing them to terminate copyright grants during the latter portion of the copyright term.

. . . .

The newest lawsuits state that UMG and Sony are regularly taking the position in response to termination notices that recordings are “works made for hire” because of contractual language in recording agreements.

“As a result of UMG’s policy, UMG has refused to acknowledge that any recording artist has the right to take over control of the sound recordings, or enter into an agreement with a different label for the exploitation of recordings, after the effective date of termination,” states the complaint. “In many instances, UMG has continued to exploit the recordings after the effective date, thereby engaging in willful copyright infringement of the United States copyright in those recordings.”

. . . .

Not only are UMG and Sony being sued for infringing the copyrights of many of the songs in their respective catalogs, but the plaintiffs seek declaratory relief that sound recordings can’t ever be considered “works made for hire” under the law, that release of sound recordings in album format doesn’t constitute a “contribution of a collective work” or “compilation” (other exceptions to termination), that foreign choice of law provisions in contracts don’t have any effect on U.S. copyright law with respect to the termination powers, that sound recordings aren’t “commissioned works,” and that recording artists aren’t barred from terminating based on the use of loan-out companies.

Link to the rest at The Hollywood Reporter

Attentive readers will note the term, “loan-out companies” in the OP and wonder what those are.

From Forbes:

Entertainers such as actors and musicians often set up loan out corporations as a way to protect their assets and obtain certain tax benefits. The basic way a loan out corporation works is that the entertainer – an actor, for instance – is an “employee” of the loan out corporation. The corporation then enters into contracts with other businesses such as a production company. Then the loan out corporation “loans out” the services of the actor to the production company.

How does it work? The loan out corporation receives monies from contracts with other businesses and pays a salary to the entertainer for services performed. Meanwhile, the loan out corporation provides essential services to the entertainer, from accounting and legal, to coaching and agency fees. All business expenses incurred are deductible because the entertainer is officially an employee of the loan out company. 

“Wealthy celebrity clients are increasingly approaching advisors about the benefits of loan out corporations. The structures are easy to establish and maintain while offering a wide array of tax mitigating possibilities,” explains Evan Jehle, a partner at LVW/Flynn. “Loan out corporations are also being utilized as vital components of asset protections strategies for high-profile ultra-wealthy families. Wealth and fame make athletes and entertainers particularly attractive targets for financial predators and frivolous lawsuits. Because loan out corporations are separate legal entities, the personal wealth of the entertainers is protected from liability connected to the corporation.”

Link to the rest at Forbes

The Growing Importance of Intellectual Property

31 January 2019

From Kristine Kathryn Rusch:

I need to be clear as I start this post. We writers create intellectual property. We license our copyrights. We do not sell stories. In fact, the stories we tell, along with their titles, are often not copyrightable. The form in which we tell that story—the order of the events, the order of the words we use,—those things are copyrightable, but the basic boy meets girl, boy loses girl, girl discovers she’s fine on her own storyline can and does fuel a thousand books and movies. (That’s why so many memes over the holiday season made fun of the romance movies on Hallmark. Because the movies—all copyrighted in their own right, all different in the copyright sense—share a lot in common.)

If you don’t understand copyright and you consider yourself a professional writer, then you do not understand the business you are in. If you have published a novel, traditionally or indie, and you do not understand copyright, you are volunteering to get screwed over and over and over again. I say this often, and I’m saying it loudly again, because the trend for 2019 and beyond is that every organization you do business with will try to take a piece (if not all) of your copyright on each and every one of your projects.

Your job is to protect that copyright.

. . . .

Forbes actually published an article in fall of 2018 titled “What Authors Should Do When Their Publisher Closes.” You can click over there if you want. The advice isn’t good, because as someone in the article says, what an author should do varies based on the author’s contract. And if the author has an agent, then they’re probably screwed. If the author doesn’t understand copyright, then they’re definitely screwed.

. . . .

I recommend publishing indie, because that’s the best way to protect yourself and your writing income. You’ll have a career if you do that. Your career might vanish on you if you try to remain traditional. Or, rather, you will write as a “hobby” while you make your living doing something else.

Yes, I’m being harsh, but that’s because the intellectual property apocalypse that I’ve been warning you about is upon us. The trends are there, and the signs that traditional publishing (and all of the other big entertainment organizations) know about the value of intellectual property are becoming clearer and clearer.

. . . .

For years now, the Big 5 traditional publishers have had contracts that essentially transfer the entire copyright of a novel from the author to them. The contracts don’t say that explicitly, but when you read the contract as a complete document (which is how you should read it), you realize that the sum total of what the clauses mean is that the writer retains no part of the copyright, and is only entitled to a tiny percentage of the money that copyright earns.

The reason these contracts changed about a decade ago had nothing to do with publishing and everything to do with mergers. As these publishing companies became part of big international conglomerates, many of them entertainmentconglomerates, the legal teams redrafted the contracts to do the copyright grabs.

Most writers had no idea what they were signing, and most of their agents didn’t either. Agents are not trained lawyers. A handful of the big agencies have lawyers on staff, but most of those agencies are concerned with making the agency money, not with making the writer money. So a lot of the contracts are structured to pay and protect the agent, while bilking the writer.

. . . .

Up until a year or so ago, most of the Big Five continued to operate like traditional publishing companies have since the 1990s—a focus on publishing a lot of titles, hoping that some will stick and become bestsellers. But that strategy isn’t working, and sales are down precipitously.

. . . .

[Simon & Schuster] has been in a media conglomerate since the 1980s. I’m not going to go through its tortured history, which runs from Paramount to Viacom and beyond, but realize this: It became part of the CBS Corporation officially in 2005. Around then, it became impossible to get book rights reverted, which is one of the tricks that is recommended for writers in the Forbes article I cited above. (How 1995. Sigh.)

S&S has experimented with electronic books since the 1990s. Dean and I personally made a lot of money in the early 2000s when S&S realized they hadn’t licensed e-rights for Star Trek books. (Dean and I wrote a bunch of them in the 1990s). S&S has tried to have a self-publishing arm since 2012, and they’re doing a lot of things that require writers to pay for services that publishers used to provide.

. . . .

The more IP a company acquires, the more its value goes up. Even if they don’t create anything from that IP. Acquiring a novel’s copyright—with all its potential spinoffs, TV shows, toys, comics—increases a company’s value tremendously.

Read that paragraph again, because the information therein is the key to this whole piece.

The more IP a company acquires, the more its value goes up. Your novel is IP. If they acquire it, their bottom line goes up, even if they never do anything with that IP. Got that?

That’s why S&S stopped, in 2000 or so, reverting the rights to the novels they acquired. Those novels equal more earnings potential—and they allow the company to maintain a value that it wouldn’t have otherwise.

I’ve been warning writers about this copyright grab by corporations for some time, but it was easy to ignore me because the Big 5 have not been (for the most part) exploiting (the legal term for developing or making use of) that copyright.

S&S finally is. That’s what Simon & Schuster’s CEO Carolyn Reidy’s heady year-end report was really all about. She called 2018 “the most successful year in Simon & Schuster’s history,” and yet she didn’t cite a single print bestseller as something that caused the success.

Instead, she touted the rise in audio . . . as well as a mention that sent a little shiver through me.

She wrote:

…[backlist sales now] comprise a higher portion of our revenue than at any time in memory…while readers wanting the tried and true is an industry-wide phenomenon, our concerted effort during the last few years to acquire books with the potential for long-term backlist sales has yielded dividends.

This article does not specify what exactly she means by “backlist sales.” Does she mean actual ebook and print sales, or other licensing, such as foreign rights and so on? Clearly S&S is exploiting the audio rights clauses in their contracts.

What is clear, however, is that a big traditional publisher has finally figured out that not only does their backlist have value in raising the company’s worth, but it also has earnings potential that can be exploited in 2019.

Why does this send a chill through me? Because if one traditional publisher learns it, the others will learn it as well. And the ability of writers who have sold their work into traditional publishers to get the rights reverted will go down to almost nil.

Big traditional publishers will finally join their counterparts in the entertainment industry—the movie/TV companies, the music studios, the game companies—in demanding control of every aspect of the copyright from the original author.

Which means that if an author signs one of those agreements, the author will get pennies on the dollar (if that) for any rights—audio, movie, TV—rather than the kind of earnings writers could have gotten as recently as 10 years ago.

. . . .

And those of you who licensed mass market rights a few years ago, thinking you’d get your ebooks into stores, you probably already signed away most of the copyright, particularly if you went with Harlequin or Simon & Schuster.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

As usual, Kris incorporates a lot of intelligent business thought and advice into the OP (and her other posts in this series).

As PG has mentioned before, he has negotiated, drafted and/or reviewed a great many contracts during his legal career, including some large technology copyright and patent licensing agreements. As he has also mentioned before, the typical contracts between authors and traditional publishers are some of the most unfair and one-sided agreements he has seen.

In a prior era during which it was impossible for an author’s works to reach any sort of meaningful audience without a publisher to cover the costs of printing books and provide meaningful access to buyers for large numbers of physical bookstores, perhaps the value of a publisher’s services was an extremely large portion of the income generated by sales of a book.

However, in an age in which:

  • Amazon is the largest English language bookseller in the world; and
  • Opens its electronic doors to self published authors on terms substantially equivalent to those it provides commercial publishers; and
  • Ebooks have the highest profit margin of any edition of a book a publisher sells; and
  • Ebook editing, formatting and cover design of a quality comparable to that provided by a commercial publisher can be had for a few hundred to a few thousand dollars;

the real value of a publisher for a typical author compared to the effective cost of a publisher to that author has declined precipitously.

PG was about to discuss the value of branding for either an ebook or a printed book, but he will be uncharacteristically brief.

Does anyone go to an online or offline bookstore seeking out a Random House book? Of course not. They’re looking for an author, a genre, etc.

With respect to promoting and selling books, which brand name is most valuable, James Patterson’s or Little, Brown and Company’s?

Without singling out any particular literary agent or agency, PG will say, as a general observation, that agents famous and obscure don’t do anything significant to improve the contract terms for publishing contracts other than increasing the amount of the advance on some occasions. In particular, agents rarely if ever do anything to address the issues Kris discusses in the OP.

In some types of contracts — consumer loans, for example — federal and/or state legislatures have passed laws that prevent commercial lenders from including some contract provisions that are unfair or harmful to borrowers. Compared to the number of individuals who take out loans to purchase a house, automobile or dishwasher, however, authors are a tiny constituency and elected officials have much bigger fish to fry than commercial publishers.

However, perhaps as a result of such consumer protections, some authors may believe they are somehow protected from  unfair provisions in publishing contracts between themselves and large publishers. That belief is incorrect.

Some of the most unfair provisions in a typical publishing contract are presented in the most innocuous manner imaginable.

 

 

Finally, there is nurturing. Publishers don’t just produce books. They nurture. Literary agents also provide nurturing in case publishers fall short in any way.

Like a baby duckling, a baby author needs to be nurtured and petted and encouraged and gently guided if she/he is to grow into a beautiful swan.

Who better to nurture such a delicate creature than a Kommanditgesellschaft auf Aktien headquartered in Gütersloh?

Off the top of his head, other than publishing, PG can’t ever remember ever having a business discussion that included the word nurture or any of its variants.

PG is reminded of a quote attributed to former president Harry S. Truman, “If you want a friend in Washington, buy a dog.”

PG suggests that if you want someone to watch over you, steer clear of the publishing business.

.



Copyright Strategies for Start-Up Companies

25 January 2019
Comments Off on Copyright Strategies for Start-Up Companies

From Trademark and Copyright Law:

As a leader of a start-up company, you are probably aware of the importance of protecting your company’s innovative products, services and technologies through patent filings.

. . . .

Most start-up companies overlook copyright issues, however, and this can create problems down the road.  In this article, we identify the most common traps that we see start-up companies fall into, and provide recommendations for how to avoid them.

Trap for the Unwary #1: Paying Someone to Create Content Does Not Mean That You Own It

One of the most common mistakes companies make in the early stages is to fail to shore up — in writing — ownership rights to content created for the company.  Many companies think that, by hiring someone to write content such as website text, software programs, or training manuals, the company automatically owns that content.  Not true!

The term “work for hire” is one of the most misunderstood terms in copyright law, and it seldom covers anyone but a true employee (i.e., someone who gets a W2 tax form from the employer, as opposed to an independent contractor).

As a general matter, an individual who creates content, by putting an original work of authorship into a tangible medium of expression, owns the copyright in that content at the moment of its creation unless (1) the individual is an employee who creates the work in the scope of his or her employment; or (2) the individual previously signed a written contract acknowledging that the work is a “work for hire” and the work is one of a few categories narrowly defined in the Copyright Act under the definition of “work for hire” (i.e., “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas”).

Thus, very few non-employees will fall into the “work for hire” category.  It is therefore crucially important that such individuals execute written assignments so that the copyrights are transferred to the company.  To the extent that a non-employee content creator is working for the company pursuant to a written contract, that contract can impose upon the independent contractor the obligation to execute copyright assignments, and even give the company the power of attorney to execute such assignments on his or her behalf.

As copyrights can only be transferred in writing, it is important for start-up companies to obtain the necessary written assignments before its independent contractors move on or disappear.

. . . .

Copyright Registration and Notice Strategy

If your start-up company is in the business of content creation, in addition to following the guidelines above, it is important to implement a copyright registration strategy at the outset.  Copyright registrations are relatively inexpensive to obtain, and allow the company to seek statutory damages and attorneys’ fees for any infringement commencing after the registration date.

Copyright registrations are also useful because they put your competitors on notice of your intellectual property rights.  This can be valuable if you are seeking copyright protection for documents or materials that your competitors might not otherwise consider proprietary, such as customized forms or user interfaces.

You do not need to obtain a copyright registration to include a copyright notice on your materials, and it is a good idea to use such a notice wherever possible.  The proper form of the notice is the symbol © or the word “Copyright,” the year of first publication of the work, and the name of the copyright owner or an abbreviation by which the name can be recognized.

For example: © 2015 Foley Hoag LLP

You should also consider adding whatever other proprietary language may be appropriate, particularly if the distribution of the materials is restricted.

For example:  For use by customers of [company name] only.  Further copying or distribution is strictly prohibited.  For permissions, contact [legal@companyname.com].

Link to the rest at Trademark and Copyright Law

Inside a ‘Making a Murderer’ Lawsuit and the Hidden Dangers of TV’s True-Crime Craze

22 January 2019

From The Hollywood Reporter:

Andrew Colborn was leading a quiet life as a police officer in the Manitowoc County, Wisconsin, Sheriff’s Department when his face first flashed across millions of screens around the world. It was December 2015 and the docuseries Making a Murderer had just premiered on Netflix, becoming one of its first genuine unscripted hits.

Making a Murderer helped establish Netflix as a destination for bingeable non-fiction programming, earned its makers Moira Demos and Laura Ricciardi four Emmys and turned tens of millions of viewers into avid armchair detectives. The docuseries also turned Colborn’s life upside down, along with those of his wife, Barb, a retired pediatric nurse, and their five grown children, ages 26 to 35.

“Barb and I … have always strived to lead a quiet and private life,” Colborn says. “[Making a Murderer] destroyed that for both of us and for our family. … I live in a state of constant vigilance very similar to combat or constantly being on duty as a law enforcement officer.”

Colborn, 59, has not given an interview since the premiere of Making a Murderer, which examines whether Steven Avery and his nephew Brendan Dassey were framed for the 2005 murder of 25-year-old photographer Teresa Halbach. A second season of the show arrived in October, tracking new attorneys’ efforts to secure the release of Avery and Dassey, who remain in prison, and reinvigorating discussions about the case in the press, on social media and on Reddit message boards with subjects like “Colborn Lies! Proof!” In December, Colborn filed a defamation suit against Netflix and the filmmakers, alleging that they omitted and distorted material in an effort to portray him as a corrupt officer who planted evidence to frame an innocent man.

. . . .

Colborn’s is one of several recent lawsuits sparked by such shows — earlier in January, JonBenet Ramsey’s family settled a defamation suit with CBS over 2016’s The Case of: JonBenet Ramsey. The four-hour doc suggested that Ramsey’s brother, Burke, who was 9 when his sister died, fatally hit JonBenet with a flashlight and that her parents covered up the 1996 murder (neither party would discuss the terms of settlement). There have been multiple lawsuits associated with NBCUniversal-owned Oxygen’s battery of true-crime shows, including a case that an Alabama judge allowed to proceed this month over the 2017 miniseries The Disappearance of Natalee Holloway. Holloway vanished in 2005 while on a high school graduation trip to Aruba, and the six-part series includes the discovery of what supposedly were her remains. Holloway’s mother, Beth, sued Oxygen and the show’s producers for intentional infliction of emotional distress — she provided a DNA sample to an investigator for the testing of the bones, unaware that the sample would be part of a television series that followed her ex-husband’s quest to solve Natalee’s disappearance. Beth alleges that the producers knew all along the bones were from animal remains — a pig’s head.

. . . .

“The folks doing these true-crime series need to adhere to the first word: true,” says L. Lin Wood, the Atlanta attorney whose firm represented both the Ramseys and Beth Holloway. “If they want to suggest conclusions or make accusations, then they better damn well be sure they’ve got facts, not exaggerations.”

Colborn, who retired from the Manitowoc County Sheriff’s Department as a lieutenant in February 2018, answered THR‘s questions about what his life is like now by email. He says Avery sympathizers have confronted him in public, threatened to kidnap and sodomize him and gang rape his wife, and have posted pictures of his children online. Colborn has frozen his credit, after he and two other members of his family suffered identity theft. He has built a safe room in his home where family members can hide, and he and his wife no longer travel or dine out. They have collected 28 CDs worth of recorded telephone threats.

. . . .

Colborn’s lawsuit alleges that the Making a Murderer filmmakers destroyed his reputation and livelihood by heavily editing his testimony in Avery’s trial in order to convince viewers that he planted Halbach’s Toyota RAV4 at Avery’s family’s salvage yard and placed its key in Avery’s bedroom. The suit claims the filmmakers removed Colborn’s answer to one question at trial and inserted his answer to another, giving the opposite impression; that they strategically spliced reaction shots of him appearing nervous and apprehensive; and that they omitted key photographs, including one showing a crack in a bookcase that explained why Colborn did not find the car key on his first search of Avery’s home. The suit seeks damages for “loss of wages and other expenses incurred to protect his family’s safety,” though Wisconsin law prohibits plaintiffs from requesting a specific monetary amount.

The sense of unraveling a dense mystery is what makes true-crime shows like Making a Murderer so addictive for viewers. But the very storytelling techniques that accomplish those aims — identifying new motives and new offenders — can lead to lawsuits. “The film industry is callously using people as pawns to make a point and to garner public interest to sell their product,” says Michael Griesbach, Colborn’s attorney and a former prosecutor who wrote the book Indefensible: The Missing Truth About Steven Avery, Teresa Halbach, and Making a Murderer. “A cottage industry of conspiracy theorists has been spawned that has turned lives upside down. My client is the main target, but there are others, including several members of the public now widely considered murder suspects or accomplices in the framing of an innocent man. Who’s falsely accusing who now?”

. . . .

But the insinuations made in true-crime shows have consequences far more grave than making subjects look dumb, and the genre’s boom has inevitably led to more litigation, say experts. “You’re not doing shows about kittens, you’re doing shows about crimes,” says attorney Lincoln Bandlow, who clears A&E’s investigative series Leah Remini: Scientology and the Aftermath. “So you’re going to see an uptick in defamation claims. We’re fortunate that in this country we have a strong level of protection to make these kinds of shows.” In the case of a police officer like Colborn, whom courts typically view as a public figure, the bar is high, Bandlow says. “Our law says certain public people have to put up with not nice things being said about them,” he says. “It’s going to take a pretty egregious case [for a police officer to win a defamation suit].” Even when a plaintiff does have a strong argument, these types of cases rarely make it to trial, as media companies are inclined to settle before entering the intrusive discovery phase.

Link to the rest at The Hollywood Reporter

Publishing’s Fact-Checking Problem

19 January 2019

From Vox:

Book publishing has a fact-checking problem, and that problem might have just caught up with former New York Times executive editor Jill Abramson.

Abramson’s highly anticipated new book, Merchants of Truth: The Business of News and the Fight for Facts, is scheduled to publish at the beginning of February, but advance copies have begun to circulate through the media. And more than one of the people featured in the book have disputed the facts and truth of Abramson’s writing about facts and truth.

In a lengthy Twitter thread, journalist Arielle Duhaime-Ross cites a paragraph of Merchants of Truth pertaining to her work at Vice and says it contains six errors, including about her gender identity and her journalism background.

“I met Jill Abramson in June ’17 in the VICE office,” Duhaime-Ross wrote. “We chatted for less than 40 minutes. She took handwritten notes. I have not heard from her since, by which I mean she did not contact me for a fact-check.”

. . . .

Duhaime-Ross’s critique was echoed by many of her current and former colleagues at Vice, who focused on a portion of Abramson’s book that characterizes the site as a salacious and irresponsible news outlet more focused on curating a certain image than on reporting the truth.

Danny Gold, a video journalist who is now at PBS Newshour and who previously worked at Vice, writes that Abramson misrepresented his decision not to wear protective clothing while covering an Ebola clinic in Africa. Abramson portrays Gold’s decision as dangerously reckless — in contrast to safer decisions made by reporters for the New York Times while covering the same story, who she says wore protective clothing the whole time — but Gold says that’s inaccurate.

“Like every other reporter there, i was told by experts not to walk around with a PPE [personal protective equipment] unless you were in the ICU. I also worked alongside Times reporters, who a. Gave me that advice and b. Did the same,” he tweeted. Gold added that he explained as much both to Abramson and on camera, in the published version of the Vice documentary The Fight Against Ebola.

Also on Twitter, Jay Caspian Kang (formerly of Vice, now at the New York Times Magazine) noted that Abramson says Charlottesville is in North Carolina (it is in Virginia; North Carolina is the home of the city of Charlotte), and Vice’s Elle Reeve notes that a figure Abramson describes as a “southern white nationalist” is in fact from Long Island.

. . . .

The portions of Abramson’s finished book that have circulated online suggest that some but not all of the errors people identified in the galley have been corrected in the finished book. Either way, it is unusual for major factual errors to linger this far into the book production process, only to be corrected later. By the time galleys are released, it’s more typical for a publisher to be correcting proofreading errors on the level of spelling and grammar than is it to be correcting the facts. It’s certainly possible that Abramson did a good-faith fact check of her book very late into production, but that would be unusual.

Moreover, it’s worth noting that all the people disputing Abramson’s claims say they were never contacted by a fact-checker. So if the book was fact-checked, that process didn’t include a conversation with Abramson’s subjects.

. . . .

I wrote about book publishing’s fact-checking problem for Vox in 2018. As I wrote then:

In general, fact-checking is not a standard part of the workflow in book publishing, even in nonfiction book publishing. What usually happens is this: Authors submit their manuscripts, the manuscripts go to editors who help to refine them and shape them, and from there the book goes into production and copy editing.

The copy editor will look for grammatical errors, and sometimes the publisher’s lawyer will check the book to make sure there’s nothing libelous in there, but fact-checking is not part of the standard publisher’s process. […]

So how do publishers generally handle it if factual errors creep into a book? Basically, the same way they handle plagiarism: They make it the author’s problem.

One of the standard parts of any book contract is the warranty and indemnity clause. By signing on to that clause, an author is guaranteeing that their book is their own, original project, not plagiarism, that it doesn’t infringe on anyone else’s rights, and — if the book is nonfiction — that its facts are accurate. And if it turns out that any of these claims are untrue, the liability is all on the author. They’re the ones who pay up if someone decides to sue.

So the facts are all up to the author. And different authors handle that liability differently. Some might want to hire a freelance fact-checker, but that can get expensive: Vulture cites flat prices of between $5,000 and $25,000, and the Editorial Freelancers Association quotes a rate of about $30 to $40 per hour. The money for fact-checker fees would have to come from the author. And since most nonfiction book authors aren’t exactly rolling in spare cash, it’s a tempting corner to cut. Many authors decide to just fact-check themselves or to skip that step entirely.

Either way, we’re left with an industry in which a lot of nonfiction books don’t get looked over by a professional fact-checker.

So Abramson was going from the New York Times, an institution with a team of dedicated fact-checkers, to a medium that left the fact-checking entirely up to her. And judging from the disputes we’ve seen so far, she may have been ill-equipped to handle that transition.

Link to the rest at Vox

PG suggests if the former executive editor of The New York Times doesn’t receive quality service from her publisher, nobody does.

He was reminded of an embarrassing collection of errors in the Times itself in a high-profile article following the death of well-known television journalist, Walter Cronkite, in 2009:

The Times published an especially embarrassing correction on July 22, fixing seven errors in a single article — an appraisal of Walter Cronkite, the CBS anchorman famed for his meticulous reporting. The newspaper had wrong dates for historic events; gave incorrect information about Cronkite’s work, his colleagues and his program’s ratings; misstated the name of a news agency, and misspelled the name of a satellite.

“Wow,” said Arthur Cooper, a reader from Manhattan. “How did this happen?”

The short answer is that a television critic with a history of errors wrote hastily and failed to double-check her work, and editors who should have been vigilant were not.

But a more nuanced answer is that even a newspaper like The Times, with layers of editing to ensure accuracy, can go off the rails when communication is poor, individuals do not bear down hard enough, and they make assumptions about what others have done. Five editors read the article at different times, but none subjected it to rigorous fact-checking, even after catching two other errors in it. And three editors combined to cause one of the errors themselves.

Seemingly little mistakes, when they come in such big clusters, undermine the authority of a newspaper, and senior editors say they are determined to find fixes.

. . . .

What Sam Sifton, the culture editor, ruefully called “a disaster, the equivalent of a car crash,” started nearly a month before Cronkite died, when news began circulating that he was gravely ill. On June 19, Alessandra Stanley, a prolific writer much admired by editors for the intellectual heft of her coverage of television, wrote a sum-up of the Cronkite career, to be published after his death.

Stanley said she was writing another article on deadline at the same time and hurriedly produced the appraisal, sending it to her editor with the intention of fact-checking it later. She never did.

“This is my fault,” she said. “There are no excuses.”

In her haste, she said, she looked up the dates for two big stories that Cronkite covered — the assassination of Martin Luther King and the moment Neil Armstrong set foot on the moon — and copied them incorrectly. She wrote that Cronkite stormed the beaches on D-Day when he actually covered the invasion from a B-17 bomber. She never meant that literally, she said. “I didn’t reread it carefully enough to see people would think he was on the sands of Omaha Beach.”

. . . .

Lorne Manly, Stanley’s editor, read the article but did not catch the mistakes; worse, he made a change that led to another error. Where Stanley had said correctly that Cronkite once worked for United Press, Manly changed it to United Press International, with a note to copy editors to check the name. In the end, it came out United Press and United Press International in the same sentence.

Though the correct date of the moon landing was fresh in his mind, Manly said, he read right over that mistake. Catching it might have flagged the need for more careful vetting. For all her skills as a critic, Stanley was the cause of so many corrections in 2005 that she was assigned a single copy editor responsible for checking her facts. Her error rate dropped precipitously and stayed down after the editor was promoted and the arrangement was discontinued. Until the Cronkite errors, she was not even in the top 20 among reporters and editors most responsible for corrections this year. Now, she has jumped to No. 4 and will again get special editing attention.

. . . .

Janet Higbie, a copy editor, said she started reading the article that Friday and caught the misspelling of the Telstar satellite and the two incorrect dates, but fixes she thought she made didn’t make it into the paper. “I don’t know what happened,” she said. Higbie said she had to drop the story and jump to deadline work, and she assumed that someone else would pick up the editing later. No one did — for four weeks, until Cronkite died late on another busy Friday. “It fell through the cracks,” Higbie said.

. . . .

Two days before his father died, Chip Cronkite sent me an e-mail message labeled, “pre-emptive correction.” He said that CBS, in reviewing its obituary material, had found inaccuracies. “As a life-long admirer of your newspaper,” he said, “may I suggest that you have someone double-check ahead of time?”

Douglas Martin, who had written an advance obit of Cronkite several years earlier, phoned Chip Cronkite. They went over spellings, discussed the cause of death and the like. No one thought to forward Chip Cronkite’s message to the culture department, where Stanley’s appraisal sat.

Link to the rest at The New York Times

Vox is correct in observing that publishing contracts between large (and small) traditional publishers and authors place the responsibility for ensuring the accuracy of all statements of fact contained in the book on the author. If the book includes an error that leads to litigation, again, it’s all on the author, including the publisher’s legal fees.

An attitude common among traditional publishing insiders and their camp followers is that traditionally-published books are simply better than books written and published by indie authors. The publisher’s name on the book is an assurance of quality, hence the higher price of the book, its placement in physical bookstores, etc.

One cannot spend much time speaking and corresponding with traditionally-published authors without hearing tales of slapdashery and ineptitude on the part of their publishers.

For example, one would think that traditional publishers would manifest their most meticulous standards in the contracts between publishers and authors in which the author grants rights to publish a book to a publisher. Such a contract is, of course, the basis upon which the publisher prints and publishes the book, collects money the book generates and passes some of that money on to the author, keeping the large majority for itself.

One would be wrong in such assumptions.

Of course another possibility might be that “most meticulous” is a relative standard for publishers. There is always the question, “Compared to what?”

In the words of one long-ago client of PG’s, “Even his best is none too good.”

As DIY Litigants Crowd The Docket, Courts Step In To Help

7 January 2019

Not necessarily about authors and books, but an illustration of a problem that has been around as long as PG has been a lawyer.

From Law360:

Tarikul Khan turned around and whispered, “I’m scared now.”

Waiting in a wood-paneled Brooklyn courtroom for the first hearing in his lawsuit, Khan was watching U.S. Magistrate Judge Lois Bloom grill a plaintiff also representing himself, in an unrelated matter, about his failure to hand over evidence.

When he eventually stepped before Judge Bloom, though, the judge’s first remark was about how Khan’s complaint for disability benefits was unexpectedly shipshape.

Khan, 68, wouldn’t have been able to create that document without behind-the-scenes help from a key consultant.

“Ms. Cat made this. She did help, everything,” Khan told Law360 in the court cafeteria before the Nov. 8 hearing. “I can’t make this thing myself. I finished high school only, no college — a little bit of college. I have nothing like this.”

“Ms. Cat” is Cat Itaya, the director of the Eastern District of New York’s legal assistance clinic for “pro se,” or self-represented, litigants; it lives inside the courthouse and is run by the City Bar Justice Center. Khan visited Itaya beginning four months before his first hearing, and over six or eight visits — a couple with volunteer lawyers, but most with Itaya — she digested his story and put together a complaint in language the court could parse.

While they remain rare for now, clinics like the one in the Eastern District of New York appear to be catching on in federal court as a way to aid self-represented litigants, for whom putting together a legally coherent complaint can be an insurmountable barrier.

Link to the rest at Law360

PG says there is plenty of blame to go around.

– Laws are made by legislatures. Federal laws are made by the Congress of the United States. State laws are made by the legislatures of each state.

Most legislators are not attorneys. Theoretically, legislatures have access to attorneys who may help in drafting the language of the laws the legislatures pass. In practice, political or business advocacy groups may draft language that friendly legislators then submit for passage.

The legislative process involves a lot of negotiations and the results of those negotiations can be various provisions of the statutes that aren’t consistent with each other or that carve out exceptions to the general application of the statutes. Amendments to the statutes to solve perceived problems may generate additional problems.

It is very unusual for a legislature to simply eliminate laws that prior legislatures have passed without providing replacements. The net result of this behavior is a collection of laws that grows larger and larger over time. The first Congress of the United States met from March 4, 1789, to March 4, 1791 and subsequent congresses have been passing laws ever since.

– Many laws authorize federal or state agencies to write regulations to implement the laws. These regulations typically have the effect of laws. Once passed, regulations may be amended by the agencies without going back to Congress for approval.

Every working day, The Federal Register, publishes agency rules, proposed rules and public notices regarding agency rules and practices. During the past several years, The Federal Register has released 70,000-90,000 pages of new federal regulations each year.

To remain current on every regulation released by The Federal Register, an individual attorney would have to read 200-250 pages of new federal regulations per day every day of the year with no time off for weekends, vacations, holidays, etc.

– A popular idea for providing legal assistance for indigent individuals is to require attorneys to provide free pro bono (from the Latin pro bono publico,”for the public good”) services for such individuals.

For reasons that may already be obvious, no attorney is competent to handle every type of legal matter that may arise under state or federal law. The finest patent attorney in the United States would almost certainly have no idea how to handle Mr. Kahn’s disability claim described in the OP.

Speaking from past professional experience, PG can say that indigent individuals have different legal problems and requirements than school teachers, doctors, and bankers. The types of legal issues that indigent individuals face are within the realm of expertise of a very small number of attorneys. The reasons for this will be obvious – If you wish to earn your living as a lawyer, representing bankers is a better professional decision than representing indigents is.

– Can’t U.S. Magistrate Judge Lois Bloom help out Mr. Kahn with his problems as described in the OP?

A magistrate judge or “magistrate” is what amounts to an assistant judge operating under the direction of one or more US District Federal Judges. (A US district judge is one who conducts trials in cases that fall under federal laws. State trial judges do the same things for cases arising under state laws. In the US, there are many more trials conducted by state judges than federal judges.)

Under US law, judges are supposed to be neutral arbiters of the disputes that come before them, favoring neither side.

The OP doesn’t go into detail, but PG suspects Mr. Kahn’s claim for disability insurance was being pursued because the US Social Security Administration had denied Mr. Kahn’s claim for disability benefits for one reason or another. The SSA is the adverse party and Magistrate Judge Bloom is supposed to decide the dispute between Mr. Kahn and the SSA on the basis of the law and facts as she finds them without unduly favoring either side. If she coaches Mr. Kahn, she compromises her obligation to be a neutral arbiter.

Additionally, most Magistrate Judges are enormously busy handling a flood of various cases, including criminal cases in which the constitutional rights of the accused require speedy trials.

– Legal Aid or other legal assistance organizations as described in the OP can be a very good solution to the challenges PG has described. Essentially, such organizations include groups of lawyers who specialize in representing poor people in the types of legal matters in which poor people are commonly involved.

Unfortunately, funding for such organizations is always a problem. Most are funded by state legislatures. In some cases, the state bar association kicks in some money. In large and wealthy cities like New York City, city government and/or the city bar association may also help provide funding.

Whatever the sources of funding, there are always more indigent people with problems than there are salaried lawyers at a legal assistance organization to provide competent legal assistance.

A significant number of private attorneys provide voluntary legal assistance to indigents, either directly or through legal assistance organizations as described above.

Attorneys who specialize in the more remunerative areas of the law are often not of much use in assisting indigents because of their lack of knowledge about the law outside of their specialties. Attorneys in general practice, who, as a group, earn less than legal specialists, are of the most use to legal assistance organizations because of the general practitioner’s broader and more general scope of legal knowledge.

In a former life, PG was an attorney in general practice in a small town located in an area not known for its wealthy residents and represented a lot of poor people, either through the local legal assistance organization or on his own. He was also a member of the board of directors for that organization for several years.

Although he won’t go into detail, PG will say that some of the most personally-satisfying cases he handled in his former practice were for some of the indigent clients referred to him by that legal assistance organization. The term, “deserving poor,” has most definitely fallen out of favor, but some of PG’s former clients were excellent exemplars of that term.

As he said at the outset, this post is not necessarily about books and authors, but more for the general education of US visitors to TPV. PG knows little about similar problems and solutions in other countries other than to know they exist to a greater or lesser extent.

TPV receives visits from more than a few attorneys and they, along with everyone else, are invited to comment.

 

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