William is one of the IP litigators at our firm and he wrote this great article for anyone in a creative field on how to protect their rights.  It is longer than my usual posts, but it is full of valuable information.

 As an intellectual property attorney, people often ask me what they should do to protect their work and avoid being exploited in their creative efforts. Unfortunately, as a litigator, oftentimes when people come to me for that advice they have already landed in legal hot water unprepared. While problems can usually be fixed in the litigation process, the further you get into litigation the more difficult they are to address, and the more costly to your legal position. In addition, once you get into the courts you will almost certainly need an attorney to address your needs. Correcting errors requires dealing with a complicated legal process with specialized rules, procedures, and formalities that businesspeople and artists have difficulty navigating on their own, particularly when there is an adversary prepared to take advantage of any error or mistake.

This article deals with what you can do as an artist to prepare yourself in your creative journey so that you can continue down your creative path without getting mired in messy legal disputes. Contrary to how it’s generally shown on television, detours into the court system are rarely interesting or inspiring, and never inexpensive. Litigation can involve hundreds of hours of argument, questioning, and quibbling by attorneys over such humdrum details as the dates of documents, compliance with arcane bureaucratic rules and regulations, and the intricacies of civil procedure. It would be enough to lull even the most vibrant creative mind to sleep – if you weren’t aware at the same time that that the slow, lumbering process consumes money at a considerably quicker rate, to the tune of hundreds of dollars an hour.

Fortunately, there are things you can do that have absolutely nothing to do with the law that may help you avoid dealing with the court process entirely, and even if you do find yourself needing to participate in a lawsuit, having a strong enough position to settle the dispute quickly and cheaply. With a little foresight and preparation, you can avoid long forays into the tangles of the legal system and move quickly down the path toward your artistic vision.

  1. Document Your Journey

Documenting your creative process is inherently rewarding on a number of levels. Keeping records of your life’s work serves as your own memoir of your artistic journey that you can enjoy looking back on when you have a finished product to see how far you have come. It can serve as a template for how to begin, flesh out, and fully realize a creative vision for future projects based on a new piece of inspiration. Not to mention that the files you leave behind can serve as a treasure trove for posterity, as friends, family, admirers, and even collectors, biographers, and filmmakers look for a way to take a peek into your creative process so they can understand and tell others your story.

In the legal system, it is important for a much more mundane reason: documenting your creative process is the only way you can compellingly show that your creations actually belong to you. Without documentation, the legal process often boils down to a game of “he said, she said.” If someone else claims they were the first one to come up with your idea or even to publish your work, and you argue to the contrary but have nothing to back it up, there is no guarantee that you will be the one a judge or jury believes. Judges and juries are human beings like anyone else, and are not immune from the Svengali persuasion of pathological liars. Nor are they necessarily unsympathetic to the sincere pleas of rival creators that genuinely feel they were the first to come up with your work, even if they were witness to an early version of it that they no longer remember. A good attorney can trap the dishonest man in his own web of lies, and sometimes with patience and persistence can get a deluded rival to admit to herself and others that the work she came up with wasn’t really all from her. But both those processes require a painstaking investigation and line of questioning that is costly, and the outcome is very uncertain. The easier way to put an end to the illusions of others is to not to tell them your truth, but to show it. It is easy to discount someone’s angry protestations that they came up with an idea first. It is hard to argue with dated papers that show how you came up with your masterpiece step-by-step. In fact, in such situations no angry protestations are needed. The documents speak for themselves.

Also, remember this: intellectual property litigation at its heart generally boils down to two simple concepts: is your work creative enough to deserve protection? And did somebody else copy it too closely? People aren’t supposed to profit by taking, copying, and claiming your work as their own. But the law also won’t allow you to profit by taking, copying, and claiming work that belongs to the public, let alone someone else. Any early drafts, sketches, compositions, notes, and outlines demonstrate your creative contribution to your final project, which is what the law protects. It’s fine, by the way, if your material was inspired by the work done by others (provided you have their permission to use any copyrighted material) or by public works. Just keep in mind that you will be asked to show what makes your work different from the inspirational material. Your papers will be evidence of this that is much more compelling than your words alone.

  1. Choose Your Companions Wisely

One of the upsides of the creative journey is that you do not have to go it alone! It can be a beautiful experience to collaborate with others in writing, composing, and performing. Even if you go it alone in those processes, there’s value in involving other people in the work both at the beginning of the creative process to bounce ideas around, and at the end, to turn rough material into a polished, publishable product. In particular, producing and distributing creative work almost invariably involves bringing in people from the outside that can handle the technical and business side of creative work that artists may not be trained in and may not enjoy. Even the newest artists rely on an informal entourage of supporting players that assist them with the practical elements of sharing their work. Your relationships with these creative travel companions en route to achieving your vision can be one of the most rewarding and enjoyable parts of your journey.

Unfortunately, not everyone can be trusted. There are some people will grow to appreciate where you are headed only to rush there themselves in order to get there first, or copy and sell your roadmap to others along the way for profit, enabling them to arrive ahead of you.

These are travel companions to be avoided. And unfortunately, as the law goes there’s not always many other ways to deal with them. One of the most common questions intellectual property attorneys get from aspiring artists, inventors, and entrepreneurs is “how do I stop someone from stealing my idea”? Unfortunately, this is not really a legal question. The law does not protect abstract ideas. Patent law protects inventions. Copyright law protects expression. And trademark law protects marks associated with goods or services. Even trade secret law protects only concrete pieces of confidential information. Anyone is at liberty to freely copy vague and abstract ideas, thoughts, and concepts. As a simple example in the music industry, anyone can copyright a jazz composition they write. But no one can claim a copyright to all jazz music, not even the first artists to make songs in the genre.

If you truly have an earth-shattering perspective change, a totally new style of writing, music, or dance, you have the benefit of being the first person to bring something totally new to the public. You can get a considerable head start on potential rivals by developing concrete pieces that demonstrate your style before others begin imitating it. It may even be wise to develop these initial works in secrecy so you can publish them and have your name associated with the concept as the first person to create works of art with your unique, groundbreaking perspective. Of course, you don’t want to wait too long so that another person comes out in parallel with a concept that you are keeping tightly concealed. But these are fundamentally creative and business decisions. When it comes to totally novel ways of doing things on a high level, the law often cannot do much for you. How, then do you protect yourself from having fundamental ideas exploited or expropriated by people you share them with? The answer is simple: make sure they are people you can trust before you let them in on it.

  1. Make Friends, Not Enemies

Speaking of people you meet along your path, keep in mind that any of the people you interact with, including the ones you work with even to a minimal degree, can have a surprising impact on your long-term success.

This tip may seem obvious, and it doesn’t take a law degree to appreciate it, but this principle boils down to two words: be nice.

This may seem odd coming from a litigator. After all, we are trained to be aggressive and hardcore – in fact downright “litigious,” correct?

As an initial matter, even in the legal arena, it often pays to play nice. Opposing counsel that squabble and fight over every little detail of litigation end up multiplying the costs of court action astronomically for both clients, to no one’s benefit except the attorneys who are billing time. Even in my line of work, you often catch more flies with honey than vinegar.

Beyond that, however, having attended court hearings, done hundreds of hours of research on opposing parties and opposing counsel, and witnessed numerous depositions, I can tell you that the not-nice do not fare as well in litigation as you might expect.

First of all, nice people are much less likely to get sued in the first place. I’ve seen tiny businesses expend hundreds of thousands of dollars in legal fees and larger, more profitable operations that have not yet landed in court despite being in operation for several years.

What makes the difference? From what I’ve seen, an enormous number of intellectual property lawsuits involving small businesses come not from competitors (who are often unaware of the existence of small rivals), but from jilted former employees and business partners. It is actually not that easy as a practical matter for random people to take your confidential information and creative work if you take reasonable precautions. The same is not true for people that work with you or for you. Intellectual property lawsuits involving small businesses often have a similar refrain: 1) an employee feels mistreated and takes the data or intellectual work they have done during the time with the employer to form a competing business; 2) the employee claims that what they use in the new business actually belongs to them, often arguing that in fact they were responsible for the “real work” of the business.

It doesn’t much matter at that point whether the former employee or business partner is right or wrong. I’ve seen both be true. The fact is that once the breakup has occurred, “winning” the battle can cost as much or more than it would to simply let it go. You may able to hurt a disloyal employee or business party more than they can hurt you, but you will probably be better off yourself with an amicable breakup. Be good to your people, even the ones you may have strong disagreements with. Fighting it out can leave you both bruised and bloodied.

Finally, keep in mind that if it does come down to war in the courtroom, any enemies you have made over the years can surface to help the opposition against you. It doesn’t matter if the bad blood between you has anything to do with the specific case you are involved in or even with intellectual property.

Old enemies can still make your life very, very difficult. They can help point the other side to documents and share information with opposing counsel that makes you look bad, whether or not there is much actual merit to it. The scope of questioning in depositions is extremely broad and you are required to answer many questions that touch on matters you consider both irrelevant and extremely private. There are evidentiary rules limiting the dirt opposing counsel can fling at you at a trial, but they’re not always as effective as you might hope. First of all, a judge can tell a jury to disregard an attorney’s questions or comments, but there’s no way to remove information from a juror’s mind once it is lodged there. And even if a jury strictly follows the rules of evidence, remember that most of what occurs at a trial is a matter of public record. The media impact of that information may hurt as much or more than a judgment against you. And if you ever land in another lawsuit, any juicy material from the trial transcript will almost assuredly come back to bite you a second time.

The more kind, ethical, above board, generous, professional, and competent you are running your business day-to-day, the easier it is for your attorney to paint you as “the good guy” at trial. And especially where legal issues are complicated and unclear, it is often the person that looks like the good guy who wins.

  1. Look Down the Road

While you never want disasters and fallings out to occur, it never hurts to be prepared in the event a storm does come your way. Business is unpredictable and despite your best efforts, anyone can have bad luck. Some people do end up in the crosshairs of an unscrupulous competitor that steals your intellectual work product, an unstable, angry and embittered employee that will stop at nothing to take you down, or a big business looking to muscle you out of the marketplace with their money. You may have done nothing to these people beyond capturing their attention, envy, and greed with your own success. You need to make sure you are ready to deal with these situations when they do arise.

One advantage to developing a relationship with an attorney is that attorneys are generally trained to look out for problems that may develop down the road. In drafting contracts, lawyers take into consideration anything and everything that could go wrong, and often specify procedures for coping that are much clearer, cheaper, and less destructive than litigation. Much of the expensive and embarrassing courtroom drama that occurs between squabbling small business partners can be avoided by a “partnership prenuptial” drafted at the outset of the business relationship that makes everyone’s duties and benefits clear, and provides for a clean and amicable exit if a breakup does occur. While such partnership agreements (or operating agreements for limited liability companies or bylaws for corporations) are relatively cheap and simple to draft and execute, many business partners go forward on the honeymoon theory that they are committed enough to the business to work out any differences. This can work well – until the honeymoon ends and the stresses and responsibilities that come with running a company on your own time and own dime push business partners into a breakup. At that point, if no consideration has been given for how to continue business despite the disagreement, the chances for the business to survive and to be profitable for either partner are slim.

Of course, if there is a case for getting legal advice on the rights and duties of your business partners, there is an even stronger impetus to seek legal advice on how to deal with employees, vendors, customers, and consultants, whose interests may be very different from yours. It is a good idea to have any contract you sign reviewed by an attorney if possible, to ensure you are not giving away rights or assuming duties you did not intend to, and to make sure the agreement is fair to you in all respects. Signing blindly is almost always a risky activity.

  1. Take a Deep Breath

While it’s important to think ahead to avoid the pitfalls discussed above, it’s also important not to let yourself be paralyzed by anxiety if you do get tangled up in legal trouble along your journey. When it comes to intellectual property, many people step on others’ toes not because they are trying to hurt them, but because they simply don’t know the dance. In the information age, a large amount of creative work that is taken without permission is pulled from the internet and used without an awareness that it violates someone else’s rights. In those situations, most businesses and business-minded individuals recognize a lack of evil intent and will not pursue legal action if inappropriate behavior stops. A large portion of intellectual property disputes are resolved with a simple cease-and-desist letter, which is much more affordable than initiating litigation. You don’t want people to use your work freely with impunity, and in order to preserve your intellectual property rights it is often important to police them. But it does not help you much to spend money seeking draconian measures against small actors that simply made a mistake. People will usually cease infringing your rights if they are told politely and firmly to stop. Even in the legal profession, this is increasingly recognized, and many intellectual property disputes are resolved with warm feelings all around, and even on occasion the possibility of future collaboration. A recent cease-and-desist letter from Jack Daniels to an author that used their designs demonstrates the potential of this approach: http://mashable.com/2012/07/22/jack-daniels-trademark-letter/.

Despite the cautionary tales above, if approached with sufficient calm and perspective, interactions with members of the legal profession can be a rewarding, informative, and downright pleasant experience. Whatever the jokes to the contrary, we lawyers are actually pretty nice people, and we’re here to help pull you out of any legal morass you do fall into. So if that happens, stay calm, take a deep breath, and we’ll come assist you to get back on the road to achieving your creative vision.

How Can I Help?

If you, or someone you know, need any help with Intellectual Property issues, from filing a patent, trademark or copyright, or just need advice regarding how best to protect your inventions, ideas or your brand, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

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