Month: November 2018

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Exclusive Versus Sole

Earlier this year I wrote about exclusive licenses and how they can make a big difference in your legal rights, when it comes to infringements. Today, I was reminded of a related issue: how to grant a client the rights to use a work only for that client’s materials, and not get caught in an exclusive license trap.

Here’s what I suggest: only use the word “exclusive” (or non-) for actual, legal rights–specifically the ones covered by the statute (17 USC §106) and stick with “sole” for other limiting factors in a license, like media or geography.

For example, let’s say IlloBob wants to license an illustration of a squid to SurferSam for use on his surfboards and newsletters. He wants to make sure SurferSam doesn’t use the illustration on t-shirts or to be able to re- or sub-license to third parties for their use. He also wants to be able to license the same illustration to others including for their use in their newsletters. His license might read like this:

Conditioned upon full and timely payment received, IlloBob grants to SurferSam the non-exclusive right to reproduce the Squid Illustration solely on SurferSam surfboards and in SurferSam newsletters for one year, starting January 1, 2019. SurferSam may not license these rights or any other rights to any third party, except as required to produce the surfboards and newsletters permitted by this license.

By using the word exclusive (or non-exclusive) only with the rights (as opposed to the media), a licensor is protected from accidentally granting exclusive rights. To see the difference, look at this variation of the license above:

IlloBob grants to SurferSam the right to reproduce the Squid Illustration exclusively on SurferSam surfboards and in SurferSam newsletters for one year, starting January 1, 2019.

Is that an exclusive license? Can IlloBob license the work to anyone else to use in a newsletter? Can SurferSam use the work on t-shirts but without exclusivity? Maybe yes to all of the above. Well informed lawyers could debate all that and more, just because of how the word “exclusively” is used.

If you don’t fully grasp the differences here, that is what I (like other lawyers) am here for. I can help you draft licenses that will provide your client what it needs while making sure you aren’t accidentally giving away more, and it won’t cost you an arm and a leg. A little professional hand-holding now can save you lots of money and frustration in the future.

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In Memoriam: Robert H. Burns

For some reason, my father abbreviated Robert as Rob’t in his signature, but he never omitted the H. I never asked why.
Now I can’t.

Dad died yesterday. Quietly. After what obituary writers might call “a short illness” but really, I’m not sure what to call it. He was at home and fine (relatively speaking–the man was almost 93) less than three weeks before his demise. Then he fell and gashed his hand, ended up in the ER for stitches, got admitted for rehydration as well as IV antibiotics for some old infected wounds, got better, moved to rehab to learn to use his walker better, and two days later was readmitted to hospital, then hospice, then gone.

I’m glad for the speed of it, for his sake. He would not have liked to linger and would have hated living in any sort of facility for anything more than a brief stay. He was fiercely independent. Dad lived on his own, alone, in his townhouse condo (with its stairs!) up until the end. My brothers generally hated that, but I respected his choice. He knew it increased his risks of accidental death at his age, but he was willing to take those risks for his independence. He drove, too, for which I feel a bit compelled to apologize to the people of Atlanta.

I got my love of driving, including stick shifts and cheap(ish) sports cars, from my dad. I got a lot from him, actually. A short list would include:

  • brown eyes that are getting lighter/more hazel-green as I get older
  • a love of the law
  • an ability to see both sides of issues and look for rational solutions
  • honesty, which (unfortunately) can be a bit too harsh for some folks
  • a loathing of yelling, particularly in fights
  • a love of, but not the guts for, acting
  • a strong whistle
  • athleticism
  • respectful competitiveness (I don’t like to lose, but I’ll respect whoever beats me at whatever)
  • enjoying watching football and baseball, but without rabid fanaticism
  • religiously doing the NYTimes Sunday crossword, in ink
  • quiet rationalism that can be perceived as coldness (aka Midwestern stoicism)
  • liking gin martinis, steaks on the grill (although I prefer mine rare), and ice cream.

As a kid, Dad taught me to swim, to ski, to play Hearts, Spades, and Blackjack, to ride a bike, to drive, and that one didn’t actually have to stop for a pee half as much as you’d think on long car trips across the country (while arguably a bit tortuous as a kid, this was great training for college bars). On his post-divorce weekends with me, sometimes we’d go horseback riding or ice skating. We’d go to Snowshoe, WV mid-week for a ski break or to Boyne, MI or take a half-day and go to a local hill. Spring breaks were often long car trips to Vail or Park City or Ft. Lauderdale, with stops in New Orleans or Mt. Rushmore or Joker Joe’s in Benton, TN to buy fireworks. Thanks mostly to Dad, I’ve been in each of the 48 contiguous states.

In recent years, we usually spoke weekly, on the phone. FaceTime or whatever was really beyond him–I mean, he’d still call me to say he’d received an email or, on the rare occasion, to tell me he’d sent me one. Each call, he would ask me about my practice and my cases, even though he didn’t understand copyright law (he had been a general practitioner, doing mostly real estate, divorces, and probate). He’d also ask about the weather, whether I had been swimming in the ocean lately, and how the animals were. He referred to my live-in boyfriend as my “friend,” almost never by his name, although more recently he did say he was really glad I was happy with him. That was unusual–Dad just wasn’t the warm-fuzzy type. For example, I’d always end the calls with “I love you” and he never said it back. It just wasn’t his way. I knew he did, though, of course.

He sucked at expressing his emotions directly. Yes, there is a great irony that he had been an actor before law school, but he couldn’t say “I love you” to his daughter. I blame his mother, who was apparently a piece of work (she died shortly before my birth). Everything made sense to me when, some years ago, he said that they never had black pepper in his house growing up, because she did not approve of it. And she dressed up her cats as a child. Yikes. It’s a small wonder he wasn’t a serial killer or something, after that childhood. Anyway, his inability to be direct about his feelings meant he, for example, would tell one of my brothers how he was proud of me, and me how he was impressed with my brothers. We all eventually heard it, just never straight from him.

Oddly, the last time I spoke to him I said, “I love you and I miss you” instead of my usual closing. I had no idea that would be the last time we spoke, but for some reason I added that second clause.

It’s too true, now.
I love you, Dad, and I miss you. Thank you for everything.

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Do Better

I feel like humans have lost something fundamental and I blame the internet, particularly social media, for much of it. What has been lost? Decency; thinking of the greater good; putting others first. Doing right, even if it doesn’t directly benefit ourselves. Trying to be better.

For example, it used to be that we were shocked when a pornographic video of a famous person was discovered. We were embarrassed for the (usually) young person who was thus exploited and often that person would fade from public life. Now, people are making porns just to try to get famous.

People (even politicians!) used to have honor, now far too many will lie without a second thought and will sell their votes to the highest bidder, even if it hurts others.

We have become far too greedy and selfish. A quiet proposal is rare–now it has to be instagrammed and scripted and shown off. A first dance can’t just be a moment between new spouses–it must be a choreographed and recorded event. A simple ring as a gesture of the promise is now rejected because it must be better (read: bigger) than our friends’ rings. How sad is that? We can’t just be happy for the happiness of others without comparing ours to theirs (and making sure we “win”).

Why am I bringing this up here? Because it affects your business, and mine. I was reminded of this today when I saw that Unsplash has a photography contest and that Medium is a part of it. I tweeted that it was a terrible idea for photographers, because Unsplash’s terms generally are terrible and even worse for the contest. I warned photographers to stay away and that it hurt all photographers by devaluing photography. Sadly, of course, someone had to tell me how it was good for him so I should essentially shut up.

Sigh.

There is right and wrong. Sometimes, what we want we could get by doing wrong; however, if we choose to do that, we are very likely doing much more harm than we realize, including (as in the case of Unsplash and similar) hurting ourselves in the long run.

I could make more money (a lot more) if I took any case brought to me, asserted claims that were questionably colorable (meaning maybe or maybe not supported by the facts and the law), or defended infringers. I could also work more slowly when I’m billing hourly. I could do all that and have fewer financial worries and drive my dream classic Porsche rather than my significantly cheaper (but much loved!) Miata, but I couldn’t look myself in the mirror.

Why do I make these choices? Because I became a lawyer to help people and, yes, to do good. Yes, everyone is entitled to a defense, but to me representing infringers would be inherently a conflict with the work I do for my copyright creator/owner clients. So, I say “no.” Also, I will never assert a claim for a client if I do not sincerely believe it is legitimate. And I know how hard people work for their money so wouldn’t it be ethically wrong to try and squeeze more out of any hourly client by working more slowly? Yup.

Would I like to make more money? Sure, of course. But not if it requires lowering my ethics and standards.

We’ve been pulled into the muck of trying to be famous rather than trying to do right. We’re trying to be more interesting on social media, rather than quietly making a positive difference in the world.

As we head into the holiday season, I suggest we all take a moment to think about our choices and consider doing better.

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