Warning: Your Attorney May Be Hazardous to Your Copyright Health by Keith Kupferschmid
It seems as though there are warnings posted just about everywhere these days. While driving on the highway, you’ll see “don’t text and drive” warning signs; when buying your morning coffee, you’ll see a “careful, hot beverage” warning on the coffee cup; and while dining out, you’ll see a “consuming raw or uncooked meats may be hazardous” warning on the restaurant menu. So it’s only fitting that the Copyright Alliance fashion its own warning message. And since we are laser-focused on advocating for the value of copyright and the rights of creators it should come as no surprise that our warning is directed toward both. Specifically, since one of the Copyright Alliance’s prime directives is to protect the rights of creators, our warning today is aimed at creators who are seeking to hire an attorney to help them enforce their rights against those who are infringing their copyrighted creations.
Rather than naming, blaming or shaming specific law firm(s) or attorney(s), the purpose of this warning is simply to educate creators on who and what to look for when searching for legal representation for a copyright claim.
Here are five warnings that you, as a creator, should consider when hiring an attorney to handle your copyright enforcement case:
Warning #1: Your Attorney Does Not Have Copyright Expertise
Make sure that the attorney you hire has relevant and extensive copyright law experience – and note that your family lawyer may not necessarily be the best choice. Even intellectual property attorneys may be more experienced in trademark or patent law than copyright; so be sure to ask about copyright experience specifically, as well as if they have experience with the type of copyrighted work(s) (e.g., photographs) that were infringed.
Warning #2: Your Attorney Brags About the Number of Copyright Cases They Filed Last Month/Year
In recommending that your attorney have extensive experience in copyright law, we don’t mean that they should have filed an abundance of copyright cases. In fact, it may be quite the opposite. If you come across a firm or an attorney that boasts about the large number of cases they’ve filed over the course of a month or a year, that may be someone you want to avoid. That’s especially true when the attorney routinely files lawsuits without first contacting the opposing party to negotiate a settlement.
Bypassing the settlement process often results in a decrease in recovery. Recoveries in settlement discussions are often far greater than recoveries in court. Achieving settlement prior to filing a complaint also avoids costs associated with litigation, and avoids building a track record as a litigant. Most media companies, when faced with a potential lawsuit, prefer to resolve the matter out of the public spotlight – and may even be willing to pay multiples of a license fee to do so. However, once a lawsuit is filed, companies will often fight harder to defend the case in order to deter future suits. This is especially true in smaller cases, where the amount of recovery is lower than the filing fee. Of course, each case is different and there may be a good reason to bypass the settlement process. But when an attorney consistently does this while also boasting about the large number of cases he or she litigates, that’s a warning sign to heed.
Further, in some cases, a high volume of cases may mean your attorney won’t be able to give your case the attention it deserves or is cutting corners somewhere that can lead to less than ideal results. Even worse, it could indicate that, instead of representing the client’s best interests, the attorney’s main motivation might be earning money through overly aggressive litigation tactics, potentially resulting in the filing of frivolous or unsubstantiated claims.
Warning #3: Your Attorney Has Been Subject to Rule 11 Sanctions by A Court
You should know that attorneys who file frivolous claims or who make frivolous arguments (or arguments that have no evidentiary support) can be sanctioned by the court. This is referred to as a Rule 11 sanction. For example, in Cruz v ABC, the court noted that the plaintiff’s attorney “has filed 452 cases in this Court in the last 21 months (of which 20 have been filed so far this month),” and threatened Rule 11 sanctions against the attorney. Before hiring an attorney, ask him or her whether they’ve ever been sanctioned or threatened to be sanctioned by a court. If they have, that may be a good reason to avoid that counsel. It also wouldn’t hurt to research the attorney or law firm name online before hiring them.
Warning #4: If You Lose, You Could End Up Paying the Opposing Party’s Attorneys’ Fees
When choosing a law firm and deciding whether to bring a copyright enforcement action, you should always keep in mind the potential recovery amount, the likelihood of success and how complicated the case is. Occasionally, attorneys or clinics may undertake a case on a pro bono basis (meaning that the attorney or clinic will not charge you, which usually occurs with a client with a low income), low bono (meaning that the attorney or clinic charges you but at a discounted rate), or contingency fee basis (meaning that, if you win, your attorney gets a set percentage of the monetary award instead of attorneys’ fees). Even if you are being represented pro bono, low bono or on a contingency basis, it’s important to understand that if you lose the case you may be on the hook for more than you thought because the losing party in a copyright case may be ordered by the court to pay the opposing party’s attorneys’ fees. This typically occurs when someone sues based on a frivolous or unreasonable claim, or if someone engages in misconduct involving the litigation. For example, in the recent case of Kanongataa v ABC, a New York court awarded over $121,000 in attorney’s fees against a photographer whose copyright case was dismissed on fair use grounds.
Warning #5: Your Attorney is Not a Good Fit for You
It’s not always easy to find the right attorney to meet your needs and interests because every creator and every situation is different. People have different styles of working. Just because an attorney comes highly recommended doesn’t necessarily make him or her a good fit for you. So be sure to seek out recommendations from friends, colleagues and other copyright owners when possible. You can find a non-exclusive list of experienced copyright attorneys here on our website.
There are also legal clinics located throughout the country to help creators of all types protect themselves. If you are concerned about the cost of hiring an attorney or bringing a copyright dispute in federal court, you may want to confer with a copyright attorney who works with a clinic in your area. You can find a non-exclusive list of here on our website.
In a perfect world, creators wouldn’t need attorneys or clinics. In a perfect world, when an organization is approached by a reasonable creator seeking honest compensation or a licensing fee, they are not summarily dismissed either by complete non-response or with the words “sue me.” Until that day comes, it’s up to you, the creator, to make the right call when entrusting someone to represent your copyright interests.
Photo Credit: designer491/iStock/thinkstock