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“Get Everything in Writing” – Advice from a Creative Lawyer

by Vinay Jain “Get Everything in Writing” – Advice from a Creative Lawyer

We recently caught up with Gregory Kanaan, a Boston-based attorney who, before law school, spent 7 years working as a freelance television documentary producer. Gregory’s blog, The [Legal] Artist, focuses on legal issues for freelance artists.

What are the most common law-related questions or misconceptions that you see arising among creative freelancers?

I see a lot of confusion around copyright registration. People often don’t understand the difference between when a copyright attaches and what a registration does for them. They think that if you don’t register, you don’t own the copyright, which is not true. So that’s an issue.

I also see a lot of work-for-hire problems. Freelancers in particular, the work for hire doctrine affects them in a very different way than it would if they were an employee.

The last issue I often see is fair use. People don’t know when they can use it and they often rely on it without knowing when it’s appropriate. It can be a confusing mess of an issue that affects a lot of people without them even realizing it.

Kanaan_headshot

What is the most important thing for a creative freelancer to include in his or her contract?

Display rights are a big deal. You should always keep the right of display, even if you sell the copyright. Recognition of your work is the cornerstone of your business. If you can’t take credit for it, how does that help you? Freelancers tend to ask, “Now that I’ve sold the copyright, am I still allowed to show people?” The answer is yes, but to avoid any confusion about it, it’s important for your contract to clearly state you have the right to use your work in your portfolio.

You worked for years as a freelance video producer before you went to law school. What made you decide to become a lawyer?

The moment for me was December of 2003. I was doing freelance work for a production company in Los Angeles. I had been working on and off with them for several months and I felt comfortable enough to pitch them some ideas.

So, I went in and had a pitch meeting, and it seemed to go very well. But at the end of the meeting, they said, “Greg, we like you, but we don’t think these ideas are right for us at the moment.” And they gave me what felt like were legitimate reasons why they didn’t want to pursue those ideas at the time. But they invited me to come back and work with them in the future.

So a few months later, I went in and interviewed for another freelance gig at the same company. And the show they wanted me to work on was the very same idea I had pitched to them in the previous meeting! But they were presenting it as theirs.

“That was an important crystallizing moment for me, because it was the first time as an adult where I realized that not everyone’s playing fair, and that they didn’t care about me. I felt used.”

So I said to them, “This was my idea. You told me you weren’t going to do it, and now you’re interviewing me for a low-end job to execute that very idea that I pitched you.” We had a testy war of words and that effectively ended my relationship with them.

I felt very helpless. I didn’t know how to fight back, what my rights were. I didn’t know what I could do. So that was sort of the beginning for me. Ultimately I went on to a TV producing career from there, but the seed of the idea of getting a legal education was planted then. And as my video producing career wound down it made more and more sense for me to go to law school.

That was an important crystallizing moment for me, because it was the first time as an adult where I realized that not everyone’s playing fair, and that they cared more about the bottom line than they did about me. I felt used. And it made me really aware of all the things I didn’t know.

That sounds awful. Overall, as a freelancer, how was your experience with clients?

I had some great experiences and some terrible ones. Most of the time, people were very fair. The mistake I often made, and it’s something I talk a lot about on my blog and in seminars that I give, is that I rarely asked for things in writing. I felt like by asking for things in writing, I was effectively negotiating myself out of a job. If I asked for a written agreement somebody would not want to hire me.

Did that turn out to be true?

No, never. The fear was completely unfounded. But I was so hungry for work, I didn’t want to do anything that I thought might rock the boat. Now I tell my tell clients, no one who you want to work with would deny giving you a contract in writing. If they’re not willing to put something on paper, then it probably means they’re not above-board.

The [Legal] Artist seems like a great resource for freelancers looking to learn about the law. What inspired you to start it?

One reason was just that I needed something to do between taking the bar exam and starting my practice. But the bigger reason was that education is very important to me, and I wanted people to have a baseline knowledge of legal issues. What is copyright? Trademark? When can I use fair use? These things repeatedly come up for freelancers. I asked myself what I would have wanted to read back when I was a TV producer with little or no legal knowledge.

How has the response been?

It’s been good! I’m just glad it’s more than my wife and parents reading it! In the past year my readership has really exploded. It’s made clear to me that there’s a real hunger from artists to get some legal knowledge under their caps. I get a lot of fine artists, filmmakers, musicians, writers, and even attorneys who want to know more about art law. It’s pretty gratifying to know that I’m not the only one out there who thinks these are important issues. Although sometimes lawyers like to challenge me on things, but that’s just the nature of being a lawyer.

What’s your advice to freelancers who have a dispute with a client but can’t afford to hire a lawyer?

I’d advise them to be thorough and patient. What I see a lot is, people who have a legal question go on Google, and the first piece of information they find, they run with. They treat that as the definitive answer. And that’s a mistake. Because there are plenty of bits of legal information on the Internet that are wrong, partially or completely — even things written by attorneys. And even if the raw information is correct, it may not apply to your particular situation. So, do your research and be thorough before making a decision on what you do. Also, realize that the law isn’t black and white, it’s very grey and can differ depending on the facts.

Any other advice?

Get everything in writing! Everything. Even if it’s just on a napkin, get it in writing. Samuel Goldwyn said “Verbal contracts aren’t worth the paper they’re written on.” And it’s true — verbal contracts may be legally binding in theory, but try enforcing one!

photo of Vinay Jain
Vinay Jain

As Chief Legal Officer, Vinay serves as Shake's general counsel, is responsible for the company's legal contracts and content, and leads efforts to educate consumers and small businesses about the law.

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