Richard Prince’s “New Portraits” – Art or Infringement?

Photo courtesy of Gagosian via Gothamist

Photo courtesy of Gagosian via Gothamist

A few people sent me links to articles about Richard Prince’s art show called “New Portraits” at Gagosian gallery. He took screen shots of other people’s Instagram photos, added one comment, and is selling them for $100,000 each. From what I’ve read, he never asked any of the Instagram users for permission to use their images and they aren’t getting any of the profits from the sales.

Apparently Prince has done things like this before – taking others’ work, altering it, and selling it. According to reports, he’s been challenged in court and won in previous situations. (Fair use is a portion of the copyright law that allows others to build on other’s work in original ways, like adding commentary, creating a parody, or making new artistic statements.) Prince’s history of being victorious in the courtroom might make these Instagram users hesitate to bring a lawsuit against him now, but I’m not convinced they would lose.

There is no cut-and-dry, black-and-white mathematical equation that will definitively show whether what a person did constitutes fair use or copyright infringement. That is up to a court to decide based on the merits of the case. The court can consider any evidence it wants in these situations, but there are four main fair use factors. I created an acronym of the fair use factors when I spoke at Phoenix Comicon last year on fan art and copyright. The acronym for the fair use factors is PAIN:

P = Purpose and character of your use

A = Amount of the original used

I = Impact on the market

N = Nature of the work you copied

Here’s my take on how the fair use factors apply to this situation:

  • P (Purpose): Prince used others’ work for a commercial purpose (to make money) and didn’t transform the originals except to add a single comment to each one and create a collection. (Does not favor Fair Use)
  • A (Amount): Prince took screen shots of each user’s Instagram profile and used an entire photo. (Does not favor Fair Use)
  • I (Impact on the market): As far as I know, Prince is the only person currently selling these images, but the fact that he’s selling them could impact the original artists’ ability to sell their work. The fact that Prince is selling these prints doesn’t change whether these images are available to view the original images online. (Weak argument for finding Fair Use at best)
  • N (Nature of copied work): Prince took images from a social media platform and created “art.” There might be an argument that the audience that would seek these images out online is different than an audience who would be interested in Prince’s work. (Weak argument for finding Fair Use.)

Do I think this is fair use? No, but I’m not the judge in this situation. We won’t know for certain until and unless the Instagram users’ whose photos were used in Prince’s work bring lawsuits against him for copyright infringement. I suspect many or all of these photos are “selfies” so these individuals may have a claim against him for commercializing their images without consent as well as a copyright infringement case.

Remember, fair use is a defense, not a permission slip. If these users sue for copyright infringement, Richard Prince would have the burden of showing that what he did was sufficient to qualify for fair use.

Fair use cases are usually complicated. If you want to chat more about fair use and copyright, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

More articles about this situation:
Artist Steals Instagram Photos & Sells Them For $100K At NYC Gallery
Richard Prince Sucks

Dislike or Defamation – Rules about Online Reviews

John and Jesper | Thumbs Down by Jesper Rønn-Jensen from Flickr (Creative Commons License)

When it comes to online review sites like Yelp and TripAdvisor, it may be difficult to do to determine when a reviewer is a legally sharing their dissatisfaction about you and when they are out-and-out defaming you. The former is legally protected speech that requires damage control; and the latter may require a cease-and-desist letter or a lawsuit.

One of the best things of out the Internet is that it gives Joe Average people a platform to share their thoughts. Review sites like Yelp and TripAdvisor let multiple people share their experiences with a business that others can read and the business owners can respond to reviews within this forum. They can give you an idea of what to expect before you arrive and whether a particular place will fulfill your needs or expectations. I find it highly valuable, and when I’m satisfied with the service I received from a company, I often asked them where I can leave positive feedback for them online.

When a company sucks, I don’t hesitate to share those thoughts either. I believe that friends don’t give friends bad referrals, and that there is no problem with calling out a business that does a particularly bad job. But there is a right way and a wrong way to do it.

1. Stick to the Facts: Unless you have a nondisclosure agreement that prevents you from sharing in your experience, there shouldn’t be a problem if you simply state the facts of your experience – i.e., the delivery people were 2 hours late, your food was cold when it arrived, the clerk apologized for not having the item you wanted.

2. Share your Feelings: Share how you felt during the experience – you were pleased that the restaurant comped the meal that you sent back, you were angry that you missed an appointment while you were waiting for the delivery guys, you were shocked that the clerk stared at your chest instead of looking you in the eye when he/she spoke to you.

3. Be Accurate: Federal law requires you to be truthful and accurate when giving a review. Avoid half-truths and insinuations. There should be no doubt in the reader’s mind between what you wrote and what you meant. This law also requires you to disclose when you are compensated for providing your opinion – such as getting free products or paid for providing a review. (The penalty for violating this rule is a fine for up to $11,000.)

In general, be thoughtful about what you post online and reading each review carefully before you hit “post” or “save.” If you are making a statement that sounds like a fact, make sure that it is verifiable. So that means you can’t say that a particular restaurant gave you food poisoning unless you can present hard evidence (like a doctor’s note) that that particular meal is what made you sick. Otherwise, you might be better off calling or email laying the manager directly and explaining that you were sick shortly after eating at that restaurant and that they might want to make sure all employees are complying with the rules to avoid foodborne illnesses.

If you believe and online review may have crossed the line from expressing dissatisfaction to defaming a person or the company, contact a social media attorney to review the situation and advise you of your options. With so many people sharing their opinions and experiences on a multitude of platforms, this is an issue that is not going away any time soon. If you want to talk more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

If Someone Sends you a Photo of Themselves, Do you Own It?

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Parade Selfie by Paul Sableman from Flickr (Creative Commons License)

Frequently I hear questions like, “If someone emails or texts me a photo of themselves, does it become my property?” Many people in this situation want to know if they own the photo and what they are allowed to do with it.

The answer to “Do I own the photo?” is “Yes” and “No.” Yes, you do own a copy of the photograph by virtue of the fact that someone gave it to you. However, owning a copy of a photograph does not mean that you own the copyright in the image, which is why you can’t do whatever you want with the picture. If the person who sent you a photo intended to give you the copyright as well, the copyright assignment would have to be in writing.

Think of getting a photo via email or text message like it getting a postcard in the mail. The postcard was addressed to you so you now own it, which means it you can look at it, put it on your refrigerator, and if the message doesn’t contain something that any reasonable person would know the sender would expect to be kept private – you could show it to others. However, you cannot make photocopies of the postcard and sell it or send it to others without the copyright holder’s permission.

Keeping this in mind, it should be obvious that the fact that someone sent you a photograph does not give you permission to do whatever you want with it. You would have to get permission from the copyright holder to post it online, and if it’s an image the sender would expect you to keep private, merely showing it to others could be illegal. If the photo in question is an explicit image, showing it to others could violate your state’s revenge porn law, which may be a felony.

With few exceptions (like child pornography) having a photo is not illegal but what you do with it could be. Therefore, if someone sends you a photo of themselves, you may keep it for your personal viewing pleasure but it could be illegal to share it with others.

This is an area of law that is still evolving. Since mobile devices come equipped with cameras, it’s important for everyone who has one is mindful of their dos and don’ts regarding sending and receiving images. If you want to talk more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

What’s Up with the Cactus-Cams in Paradise Valley?

Four Peaks Seen Through Cactus Goal Posts by Alan Levine from Flickr (Creative Commons License)

Four Peaks Seen Through Cactus Goal Posts by Alan Levine from Flickr (Creative Commons License)

If you’re at an intersection in Paradise Valley and you see a saguaro cactus that looks fake, it probably is.

Paradise Valley recently installed three fake cacti that contain cameras that will be snapping photos of every license plate that goes by. Ken Burke, Paradise Valley’s City Manager said the images will be compared against the “hot list” which includes cars that are reported stolen or part in Amber Alerts. The city said the images that are not connect to any investigations will be destroyed after 180 days.

I’m a bit skeptical of this reasoning for the cameras. According to the Maricopa County Attorney’s Office, vehicle thefts have been steadily declining in recent years. And according to the official Amber Alert website, there was only 1 Amber Alert in Arizona in 2011, the most recent year for which a report was released. I wonder if they installed them to search for cars that are related to crimes or people with warrants.

And what about privacy? The law has firmly established that you have no expectation of privacy in anything you do in public, including where you go in your car. The U.S. Supreme Court ruled that the police need a warrant to put a GPS on your vehicle. Snapping your photo every time you drive through a particular intersection isn’t as extreme as tracking your every move, but it could be used to track patterns of behavior.

On its face, this looks like a waste of time and money, but I would be curious to hear an update about these cameras in six months. I would want to know how many crimes they’ve helped solve and if they’re being used for additional tasks.

Privacy issues aren’t going away any time soon. If you want to chat more about this topic, please contact me directly or connect with me on social media via TwitterFacebookYouTube, or LinkedIn.

Lawyers Protect you during a Business Divorce

Pareja (Couple) by Daniel Lobo from Flickr (Creative Commons License)

Pareja (Couple) by Daniel Lobo from Flickr (Creative Commons License)

Over the last six months I’ve worked with a handful of companies that were experiencing major changes in regards to how the company is operating and who the owners are – usually resulting in one or more owners buying another one out. Sometimes the owners realize that they no longer have a shared vision and can work together amicably to resolve the situation so they can each move forward in their professional lives and sometimes it’s quite contentious. I often call the situations “business divorces.”

When these situations happen, it’s helpful to get a business lawyer involved early in the process. You may only need in our consultation to discuss the situation in your proposed plan of action. Your lawyer can act as a neutral third party who doesn’t have invested ego in the outcome of the situation. Invite your lawyer to review your company’s operating agreement or bylaws (hopefully you have these) and remind you of what courses of action you previously agreed upon in this type of conflict (assuming you made these decisions when you started the company) and how to change the status of your business with your state’s corporation commission.

Most business owners I know don’t want to think about the worst case scenario when their businesses are just getting off the ground and everyone is optimistic about the future; however, this is the best time to have this conversation and document it because this is when you are most likely to be thinking about what is fair and what is in the best interests of the company. If you wait until there is a conflict to try to have this conversation, you’re more likely to get into a battle of wills where people are more interested in what they want and/or hurting the other person.

Additionally, if you are going through a “business divorce” expect it to take longer than you’d like. There may be valuations that need to be performed on the company, documents that need to be reviewed by your lawyer or accountant, and a custom contract drafted between you and your future-former-co-owner. This may involve a significant amount of negotiation and revisions.

I actually enjoy drafting these documents to shift the ownership of the company, especially when both sides are represented by counsel. Each lawyer is an advocate for their client’s concerns without it having to be a combative situation. And we can shield our clients from the tribulations that would likely result if they tried to reach a resolution on their own. Ultimately we both want the same thing – a change in business ownership and clients who are satisfied with the outcome.

If you are in a situation where the arrangement with your fellow business owners is no longer effective, please contact me or a business lawyer in your community. If you want to connect with me on social media, you can find me on Twitter, Facebook, YouTube, or LinkedIn.

The Enchanting Lawyer – How Lawyering Can Be

Ruth Carter and Jacob Sapochnick - photo taken on Day 1 of The Undeniable Tour

Ruth Carter and Jacob Sapochnick – Photo taken on Day 1 of The Undeniable Tour

My first speaking engagement during The Undeniable Tour was in Los Angeles; however, I purposefully started the trip in San Diego in part so I could meet Jacob Sapochnick of The Enchanting Lawyer Podcast in person. He has a firm in San Diego that focuses on immigration law and he is also one of the most active lawyers on social media that I know.

I met Jacob last year when I was a guest on his podcast where we talked about the benefits of using blogging and social media as a marketing tool. I’m so glad that I had the opportunity to popped by his office an say hello in person during the tour.

Jacob’s law practice appears to be a whimsical house that was converted into an office. It is absolutely adorable. Another thing that makes Jacob’s office different than a stereotypical firm is everybody seems happy. The place was buzzing with productivity and positivity on every floor. As Jacob and I sat in his office to talk shop for a bit, he showed me that he keeps his leather jacket hanging in the closet in his office to remind him that he doesn’t have to conform to the lawyer stereotypes to be successful. On the contrary, his innovative methods to running his practice have given him more freedom, success, and happiness.

Jacob told me he uses a method called “The Enchanting Way” to run his practice. He genuinely cares about each of his employees and by putting them in positions where they are empowered and also able to take care of themselves when they have personal affairs to attend to, they are more dedicated to the firm and the clients then employees at any firm I’ve seen. When he needs to hire someone, he looks for people who will provide the same level of customer care that he would; he can teach anyone with solid base skills what they need to be a paralegal or a legal assistant. What you can’t teach are empathy and work ethic.

Because of this, Jacob doesn’t need to be in the office 24/7. He knows the office will run perfectly fine and clients will be taken care of if he is in court or on vacation for weeks at a time. I think a lot of lawyers like to envision themselves as indispensable but what Jacob is done is make his firm indispensable to clients. That’s what really matters.

As a social media enthusiast, one of the things I love about Jacob is he embodies the idea that every company should be a media company. He has the enchanting lawyer podcast and a strong following on Facebook. He said he often creates posts that his audience lots that have nothing to do with the law; however, by creating content his audience enjoys, he is creating a strong rapport and reputation with them so they are more likely to call him when they need help with an immigration issue. Doing this is not rocket science, but it is hard work, and I love to see companies like his that are doing it right. Here is his advice for anyone who wants to make a name for themselves.

Be sure to subscribe to The Enchanting Lawyer Podcast via iTunes or YouTube. Jacob has amazing guests on the show every week. If you want to chat with me about The Undeniable Tour how I use social media, please shoot me an email or connect with me on Twitter.

The Undeniable Tour would not be possible without my awesome sponsors: Web3Mavens,Enchanting LawyerTotal Networks, and Attorney at Work.

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The Undeniable Tour – The Recap

I asked all the social media movers and shakers that I met during The Undeniable Tour to sign the arrow

I asked all the social media movers and shakers that I met during The Undeniable Tour to sign the arrow

I’ve been home for a few days and I’ve had a little bit of time to reflect on the whirlwind trip that was The Undeniable Tour: 15 days, 2 airplane rides, 1932 miles of driving in the rental car (courtesy of my concierge sponsor Web3Mavens), 6 hostels, 5 speaking engagements, 4 official sponsors, a handful of other freebies, and a whole lot of awesome! Thank you to everyone who supported this crazy adventure, especially the schools and organizations who invited me to speak, the people who attended my talks, and of course my sponsors without who this tour couldn’t have happened: Web3Mavens, Enchanting LawyerTotal Networks, and Attorney at Work.

I have gotten a handful of questions about The Undeniable Tour which I’m happy to answer.

Why did I create The Undeniable Tour?
I noticed there is a gap in education for lawyers when it comes to social media marketing. I get most of my information about the logging and proper ways to use social media from mainstream sources. A lot of people ask me how I’ve been able to leverage these tools to get clients and make a name for myself and I wanted to bring the lessons I have learned to broader audience.

Last year I read the book Creativity for Sale by Jason Surfrapp (now Jason Zook). By the time I finished it, my head was buzzing with ideas for future professional ventures, including The Undeniable Tour, so I ran with it.

Why did I choose to stay in hostels?
The Undeniable Tour was a shoestring operation made possible by getting sponsors and small speaking fees. Staying in hostels is much more economical than staying in hotels, and I discovered that I liked staying in hostels a lot better than budget-friendly hotels. I don’t mind sharing a room with7-23 other people or using communal bathrooms and I love being more connected with the adventurous traveler community. Plus Wi-Fi and breakfast are often included in the price.

Have I noticed an uptrend in non-traditional lawyers?
I won’t say there’s an uptrend in the number of nontraditional lawyers; however, I think more lawyers are interested in the hearing about how others are practicing law differently. I suspect more people are dissatisfied with billable hours and working 90 hours/week and they see that others are doing something different and are happy or as a result, and they want to know more.

Are law students driven to go solo?
That’s depends on who you ask. At one school I went to over half the audience was interested in going solo and at another school, almost no one was. I suspect many law students are interested yet frightened by the prospect of going solo right out of the gate. (I certainly was.) I hope hearing my story showed them that it’s possible to go solo early in your career and be successful – and that there are lots of resources available for a lawyer who opens their own firm so they never have to feel like they are going it alone.

What will I do differently next time?
Oh geez. Probably everything.

If I do another tour, I will probably try to make it shorter in terms of time, do more engagement with the local media in advance (print, blogs, vlogs, and podcasts), and try to schedule more speaking engagements (and maybe some CLEs for law firms) and a smaller area.

Planning this tour could have been a full-time job in and of itself. There is so much to do and coordinate. Hopefully having this tour be such a success will make it easier to plan similar activities in the future.

What advice do I have to anyone who thinking about organizing a similar event?
If you want to plan a speaking tour or get sponsors for your event, you have to be super organized and diligent about follow-up. A lot of my success from planning The Undeniable Tour came from follow up emails and phone calls. Additionally, you don’t have to necessarily re-invent the wheel – look to your network of contacts for suggestions and potential leads in terms of locations and sponsors.

If there is anything else that you want to know about The Undeniable Tour, feel free to leave it as a comment or shoot me an email.

Thank you to everyone who supported me during this crazy adventure. It took about 8 months to organize and execute this. A tremendous thank you to my sponsors: Web3Mavens, Enchanting LawyerTotal Networks, and Attorney at Work.

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The Undeniable Tour Day 14 – Keep Moving Forward

Open Road to the Horizon 2014-01-01 by Kristina D.C. Hoeppner from Flickr (Creative Commons License)

Open Road to the Horizon 2014-01-01 by Kristina D.C. Hoeppner from Flickr (Creative Commons License)

I couldn’t have asked for a better last day of The Undeniable Tour. It started with a walk by the water with Jay Thompson and then I saw some Seattle sites before hopping in the Maven Mobile (courtesy of my sponsor Web3Mavens) and drove south to speak at the Tacoma-Pierce County Bar Association. They were an incredibly engaged audience that wanted to know more about social media marketing options for lawyers. My day ended with dinner with one of my best friends from undergrad.

Last Day in Seattle - Visiting the Troll

Last Day in Seattle – Visiting the Troll

Now I’m sitting in my hostel reflecting on the last 14 days, everything I’ve learned, and all the wonderful people I’ve seen. My talk for The Undeniable Tour started with a quote from Yogi Berra: “When you come to the fork in the road, take it.” I encouraged them to challenge themselves to keep moving forward with their professional development, but that it wasn’t my job to tell them what to do. They had to figure that out for themselves. My job was to share my story about my journey and share tips based on what’s working for me.

When it comes to being involved on social media, there are many options to choose from and you can select platforms that play to your communication strengths and puts you in contact with your audience. (Remember that the purpose of social media is to interact with people. Don’t treat it like a digital billboard.) In addition to blogging, I’m active on Twitter, Facebook, YouTube, Google+, and LinkedIn. I’m active on some platforms more than others. My favorite platform by far is Twitter; it’s the easiest way I know to start a meaningful conversation with someone I want to meet.

If you’re thinking about getting involved on a new social media platform, here’s the process I recommend that you use.

  1. Create an account.
  2. Take 1-2 weeks to watch how others are using the platform. Learn about the lingo and observe what’s working for others.
  3. Start using the platform yourself.

It’s ok to start slow and it’s ok to make the occasional mistake. Like all new skills, you won’t do it perfectly the first time, or every time. The point is you’re there and you’re trying. Stay open and teachable. And remember that using social media is like becoming part of a community. Relationships and connections will be built over weeks and months, not minutes. Keep the long game in mind.

My challenge to myself is to reflect on the lessons I’ve learned from planning and doing The Undeniable Tour and applying them to my professional and personal life. (There is no distinction between by professional and personal lives. It’s all me.)

If you want to talk with me about The Undeniable Tour please shoot me an email.

The Undeniable Tour would not be possible without my awesome sponsors: Web3Mavens, Enchanting LawyerTotal Networks, and Attorney at Work.

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The Undeniable Tour Day 13 – Using Non-Traditional Tactics to Pay for Law School

Cool Wall Art at Lewis and Clark Law School

Cool Wall Art at Lewis and Clark Law School

I had the pleasure of speaking at Lewis and Clark Law School today before jumping in the Maven Mobile (courtesy of my sponsor Web3Mavens) to Seattle to speak at the Tacoma-Pierce County Bar Association tomorrow. It’s hard to believe that Day 14 is the last full day of The Undeniable Tour.

Lewis and Clark Law SchoolAfter my talk, I was approached by a student who wanted to start a nonprofit that would raise money to pay for her tuition and give scholarships to other minorities who want to go to college. She had an interesting story – she went through several application cycles when applying to law school, not because she wasn’t good enough to get in somewhere, but it was a challenge to find adequate funding.

I thought her idea was intriguing, but it reminded me of some of the pitfalls I encountered when I launched Sponsor A Law Kid during my 3L year where people paid me to blog about the topic of their choosing. I had to deal with my fair share of critics who attacked me as a person and not just my idea for raising money for school.

If you want to launch a venture or campaign to pay for law school, you need to be clear about what you’re doing before you announce it. If you want donations, that’s fine, but be ready to be accused of asking for a handout. If you are doing or giving something in exchange for money, like writing blog posts, selling t-shirts or a book, make sure you’re over-delivering for the price you’re charging. People have the right to decide how they spend their money, but you don’t want to get a reputation of ripping people off.

If you want to do something like this young lady and start a program that will fund her education first and then continue to help fund others’ education, you need to follow through on your long-term plans. My concern as an outsider looking in is some people may be skeptical and wonder if she’s doing this to pay for her education and then shut down the program without helping anyone else.

Regardless of what you do to pay for law school, be sure to act with integrity and transparency so you can respond to any questions with class and grace. When it comes to paying for law school, I encourage you to be creative and thoughtful with whatever you do.

If you are interested in connecting with me please follow me on Twitter. If you have any questions or comments about The Undeniable Tour or Sponsor A Law Kid, please shoot me an email.

The Undeniable Tour would not be possible without my awesome sponsors: Web3Mavens,Enchanting LawyerTotal Networks, and Attorney at Work.

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