Why Is an Entertainment Lawyer Writing about Health Insurance?

I don't have a dog in the health insurance fight.  I think it is outrageous how much I have to pay for health insurance.  However I also believe that no one should be forced to go without health insurance.  Most of my clients are involved in the arts in some capacity and I am concerned for their well-being. I am pretty sure that a lot of these folks  don’t have health insurance.  Nate Rau recently reported in the Tennessean that out of a recent survey of professional musicians, actors, dancers, visual artists and film makers, nearly 43 percent were without health insurance and out of this number, 88 percent claimed that they simply could not afford it; no surprise there.

                Artists typically do not have "employers" in the traditional sense so up until now the only alternative for them has been self-insurance, a market which seems to raise its rates every time the wind blows.  Insurance is too expensive; yet I have seen the devastating effects of unexpected medical costs on families and have to say that having some form of health insurance is the only prudent solution.

                So this gets us to the Affordable Health Care Act.  Against the will of the Tea Party that thinks that it is too much and the left that thinks that it is not enough, the government has taken the first steps to try and fix the insurance inequity problem in this country.  I have been reading about the so called "marketplace" available at www.healthcare.gov and I can't see a reason for an uninsured person not to investigate it.  On the face, the rates seem quite reasonable.  If you are completely confused by all of this  I recommend reviewing a pamphlet from the Legal Aid Society called "Here's How the Affordable Health Care Act/Health Care Law Can Help You".  This does a good job of explaining how the new law works.  For those who complain that the web site is slow or wonky all I can say is "remember dial up internet access?"  It's time to stop complaining and start researching.

Trouble for California Entertainment Attorneys

Most entertainment attorneys are vaguely aware of California Labor Code 1700,  The Talent Agencies  Act.  We remember the broad outlines:  the law  originally had something to do with the movie business, it was once used against the Jefferson Airplane’s manager in the 1960s.  We all routine admonish our manager clients that they cannot “procure employment” for a client, even if this statute does not reach outside of California.

            Incredibly the law was recently employed by Labor Commissioner of California to punish a California attorney who did nothing more than negotiate  a contract on behalf of a client.  The case, Solis v. Blancarte, first reported on JD Supra, involves an attorney who negotiated an employment agreement for a sports reporter and charged a fee equal to 5 percent of the compensation earned by the client.  According to the opinion, the relationship between attorney and client lasted for several years.

            While the practice of charging a percentage of earnings is not prevalent among Nashville  attorneys, it is by no means unusual in California.  I am aware of many law firms which operate this way.  What is striking about this opinion is that it punished the attorney for doing the job he was hired to do.  The opinion quotes from the labor code which defines “Talent Agency” as  a person…who engages in the occupation of procuring, offering, promising or attempting to procure employment engagements for an artist or artists”.  Crucially, the statute also states that “the activity of procuring, offering or promising to procure recording contracts for an artist or artists shall not of itself subject a person to regulation and licensing under this chapter.”

            So while soliciting and negotiating record deals is exempted from this statute, everything else that an attorney might negotiate for an artist client is not.  Interestingly, even though there was no evidence that the attorney was attempting to solicit a reporting job for his client (i.e. the job was offered to the client and the attorney’s job was to negotiate the contract) the Labor Code Commissioner saw fit to stretch the definition of “procure” to include those activities which “bring about” the deal, i.e. the act of negotiating the contract. This is what lawyers do: they negotiate.

            I am not in California,  have very few California clients and have rarely represented an artist on a contingent fee but this ruling is still shocking.  Imagine a governmental agency arbitrarily deciding that an otherwise legal and legitimate professional activity was suddenly illegal and that your earned legal fees had to be forfeited.  This seems so far removed from the original purposes of this statute.  I hope that Attorney Blancarte challenges this ruling and I am sure that we have not heard the end of this California saga.

How the Government Shut Down Affects Me

Like most Americans, I tend to be incredibly oblivious to things that do not affect me directly.  I can complain about Congress but if I don’t personally suffer  because of the current governmental shutdown I might not even notice it.  But I began to wonder, how does the government shut down actually affect me and my clients?  Turns out, a great deal.

  I do a lot of copyright work – registering copyrights, and enforcing my clients’ copyrights.  There is currently a sign on the copyright office web site that reads “The U.S. Copyright Office is closed and www.copyright.gov is not available due to the federal government shutdown … copyright registrations will not be processed until the Copyright Office reopens.”

This has the potential to become a huge problem. If copyright owners can’t register their copyrights, they can’t get into court to protect their rights.

 I also do a lot of trademark work.  I went to the USPTO.gov site and discovered that due to some pre‑planning the trademark office is using “prior year reserve fee collections” to remain open for “approximately four weeks”.  Then the trademark office would shut down except for a “very small staff” that would continue to accept new applications.  However,  presumably the new applications would not be processed. 

  Finally I wondered what the effect of the shutdown would be on the Federal Court System.  I learned that because the Constitution guarantees criminal defendants the right to a speedy trial, the Federal courts must remain open as an essential government service.  However, most commentators think that civil litigation would be suspended and that so‑called non‑essential employees (the people in the clerk’s office—who are pretty essential in my book ) will be furloughed without pay and the system will grind to a halt. 

 If the shutdown continues,  the ripple effects are going to be significant.  I was already disgusted after hearing about Head Start daycare programs being shut down as well as the exacerbation of the problems in the Veteran’s Administration but I did not think that my practice or my ability to serve my clients would be affected.  Apparently I was wrong.  

 This needs to end.  

Don't Mess With Lessig

Lawrence Lessig is not the kind of guy you want to piss off.  Lessig, a Harvard law professor, is one of the world's leading experts in copyright law; more to the point he is one of the pre‑eminent thinkers in the ever-expanding area of fair use and intellectual freedom. 

Lessig recently gave an online lecture and used part of the song "Liztomania" by the band Phoenix to illustrate a point about dance music and global Internet phenomenons. The lecture was posted on You Tube.  Liberation Music, an Australian company sent Lessig a letter claiming copyright infringement and threatening to sue for violating its exclusive rights. They apparently also sent a takedown notice to You Tube, under the DMCA provisions.  Lessig neither ignored the letter nor did he bother to send a reasoned response outlining his position.  He instead filed suit asking for a declaratory judgment that his use was a protected fair use.  He is asking for damages and legal fees

Lessig's suit is one of what appears to be a growing number of copyright cases using the concept of "copyright abuse" to challenge what might be accepted norms in copyright law.  To be sure, few would disagree that Lessig's use of the song in an academic lecture is almost certainly fair use; it's right there in the statue.  What is more interesting is that Lessig is using the courts and assuming the role of plaintiff to prove his point.  Robin Thicke has done the same thing with his lawsuit against Bridgeport Music and the Estate of Marvin Gaye, filed in response to their claims of copyright infringement with his song “Blurred Lines”. The Lessig case, if it goes to trial, may help academics gain a better understanding of what is permissible in the area of fair use and scholarship.  It might also give copyright owners pause before sending cease and desist letters and sending take down notices to YouTube and other outlets. 

The Lawyer/Business Person Dichotomy

             "You are not a businessman."

            " And you  are not a lawyer."

            This was the substance of a spirited "discussion" I had with a client a couple of weeks ago.  The exchange  has stayed with me because I think it illustrates an important and often-overlooked distinction.

            I wish I was more of a businessman.  I think all solo lawyers are by definition entrepreneurial but after three decades of doing this, I know that I lack a number of the fundamentals of business acumen.  However, I am confident that I make up for that deficit by being analytical, by being able to evaluate risk and most of all by being aware of what needs to be done to protect the client.

            There is the rub.  Not all clients want to be protected.  A lawyer (at least the ones who do their job) often gets caught between trying to advise the client to do the prudent thing and the client's other strategic goals.  If you read enough advertising and marketing materials, you will see those ads by lawyers who boast that they excel at "bet‑the-company" litigation.  This always strikes me as foolish.  Only in the most dire of circumstances would a businessperson ever decide that it is worth it to "bet the company".  I have tried to make one of my mission statements :(there, that's a business term isn't it?) that I "help people find solutions to complex problems".  That really is the challenge where law and business intersect. In other words, a lawyer should help to advance a client’s goals while at the same time protecting the client’s interests. Sometimes that means trying to protect the client against themselves.

            This can play out in many ways.  In transactional work, it could mean knowing approximately how much you can ask for without blowing a deal.  In litigation it is much more complex.  Any lawyer will tell you that settlement is always preferable to risking a trial; there are too many variables.  Sometimes there's a lot of posturing, like an expensive game of chicken.  We like to think that the world is a rational place.  The older I get,  the more I realize that this is a fallacy.  In the end, there's going to be a constant struggle between the particular kind of mindset it takes to succeed in business and analytical lawyerly risk evaluation.  This is not a bad dichotomy, it keeps us all employed.  Sometimes though,  it is startling to realize that it is in fact a very real dichotomy and one that can often cause tension in lawyer-client relationships.