How to Use the Attorney General to Go After Bad Clients

September 19, 2019 by Leave a Comment
“Stairs to Subway” by Giuseppe Milo from Flickr (Creative Commons License)

One of the frustrations I hear about from entrepreneurs is getting stiffed – either they paid a company to do a job and they didn’t perform, or they did a project or task for a client and they didn’t pay. In many of these situations, the amount in question is low enough that it’s not worth it to hire a lawyer or even put in the time and effort to take the other side to small claims court.

Even if a client hires us to send a demand letter, there’s always the risk that the other side won’t comply, and then they’ll be in the same position as before, but now they have our bill to pay too.

If the client in question is a business, there may be options to go after them through the government at no cost to you.

Attorney General Consumer Complaints

Check the Attorney General’s (AG’s) Office website for the state where your non-performing client lives (not where you live if you live in a different state). For every state that I’ve checked for a client to date, the AG’s Office has had a division or at least a page on their website for consumer complaints. Typically, it’s a form where you provide your contact information, a summary of the situation, and the remedy you want.

If the AG’s Office thinks your complaint has merit, they’ll investigate the situation, including them sending a copy of your complaint to the company and with a firm deadline for providing a response. Even if your client didn’t respond to a demand letter from you or your lawyer, they will likely be more inclined to respond to the AG’s Office.

In my experience, companies are motivated to resolve these matters quickly and avoid the risk of having fraud charges filed against them. This may result in the client paying you, performing as they were supposed to, or giving you your money back.

Pros and Cons of Going Through the AG’s Office

Pro: It’s free to file a complaint. You don’t need a lawyer to do it; however, it may be prudent to have a lawyer help you fill out the form to make sure you’re presenting the most compelling argument in light of the applicable laws. Your lawyer may know the key phrases to use to convince the AG’s Office to take your complaint more seriously than if you’d written it by yourself.

Con: You have less control over the situation. If the AG’s Office pursues the matter and files a complaint in court against your client, you will not be the plaintiff. The state will be the plaintiff. You will be less involved in the negotiations and settlement (assuming there is one).

Pro: It’s less work for you. If you were pursuing this matter directly against your client, such as filing a lawsuit, there could be meetings and calls with you lawyers, documents to review, and other work where you would need to be involved. Or if you were doing it on your own and going to small claims court, you would still have to prepare your Complaint (lawsuit), file it, get the other person served, and show up for your court date.

The AG’s Consumer Complaint is the Hidden Alternative

Most people I’ve spoken with about these types of business challenges, don’t know about Consumer Complaints. I’ve suggested it at least three times in the last two weeks to friends and clients alike. I can’t say this option is available in every state, but it’s worth investigating if you have a non-performing client that’s a business.

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Photographer Disputes: What Happens If You Don’t Deliver

July 25, 2019 by Leave a Comment
https://www.flickr.com/photos/76377775@N05/8560939745
“Las Fallas Valencia Spain Angry Woman” by Keith Ellwood from Flickr (Creative Commons License)

As I was researching photographers’ legal questions, I stumbled onto a question posted by an upset client: “The photographer hasn’t given me my photos. It’s been six months. What can I do about that?”

Whoa! That sounds exceptionally bad. I’m curious how complex this project was and when the photographer said they’d deliver images to the client.

I don’t know the circumstances regarding this person’s situation, but here’s what could happen if a client is unsatisfied with your work, or worse, you fail to deliver as promised.

Check the Contract’s Dispute Resolution Provision

Whenever anyone comes to me with a business dispute, like “They didn’t pay me,” or “I didn’t get what I paid for,” the first question I ask is:

What does your contract say?

Your photography contract should have a dispute resolution provision that states how disputes are going to be resolved, where it’s going to be resolved, and which state law governs the agreement.

One of the most common dispute resolution clauses I put in photography contracts says if there’s a dispute, the parties will try, in good faith, to resolve the matter within 30 days. If that doesn’t resolve the matter, then the parties agree to resolve the matter is a court located in Maricopa County, Arizona, and the agreement is governed by Arizona law. (I recommend Maricopa County and Arizona law because that’s where I’m located. You don’t want to pay for your lawyer’s travel expenses if you don’t have to.) I usually include a clause that says the losing party must pay the prevailing party’s attorneys’ fees and costs.

Regardless of what the contract states about resolving disputes, my first step in most disputes is sending a demand letter that puts the other side on notice that further legal recourse will be sought. This letter lets the other side know that the offended party is serious and willing to fight, and it gives them a chance to resolve the matter before it will be taken to the next level.

Report to the Attorney General’s Office for Consumer Fraud

You may not know this, but your state’s Attorney General’s Office may have a forum to submit a consumer complaint and report suspected fraud. Arizona has this, and it’s not a fun process to go through the subsequent investigation, which could include being subpoenaed for a deposition under oath and/or having a claim for fraud filed against you. If a court found that you committed fraud, it could have devasting consequences for your business, including your ability to be a professional photographer. Taking a client’s money and failing to provide the images could easily be an act of fraud.

If a client wanted to pursue this option, they don’t need a lawyer to file a consumer complaint. They can go online and get the form themselves. The Attorney General’s Office would foot the bill for the investigation, and likely expect to be reimbursed by you if you lose or come to a settlement. Conversely, if a consumer complaint is filed against you, you should hire a lawyer to represent you.

Bad Review

The least problematic a dissatisfied client could do is leave you a negative review on Google, Yelp, or Facebook, or they could post about you online on their social media accounts or their website. As long as everything they post about you is true or their opinion, it’s perfectly legal.

Hopefully, you never find yourself in this type of situation, but if it happens, please don’t ghost your client. Keep the lines of communication open as you work towards a resolution. One of the most common complaints I hear from customers is that the person they hired stopped responding to emails, calls, or texts, and so they felt like they had no choice but to ask a lawyer or the state for help.

Lights Camera LawsuitTM

There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

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Lawyer Responds to Photographers’ Problems

July 17, 2019 by Leave a Comment
“Photo Shoot” by Cliff from Flickr (Creative Commons License)

Last week, I saw a thread in an online photography group that started with a simple question: “What problems do you face as a photographer?” After reading hundreds of the responses, I wanted to respond to some of their problems as both a lawyer and an entrepreneur:

Competition – Other Photographers Offering Half the Price

My first thought when I read this was, “There’s a good chance it’s also half the quality.” You never want to be in a race to the lowest price. Instead of worrying about price, focus on what makes you different from the competition.

If someone wants a cheap photographer to document their once in a lifetime event, like their wedding, that’s their choice. If I were facing a client who said, “I can get someone to photograph my wedding at half this price,” I hope my response would be something like, “This is your special day. You have to choose who you trust to capture these moments for you.”

Personally, I have no problem when a client self-selects out from working with me if they don’t want to pay my rate. It’s better that they decide that early and go with someone else.

This problem reminds me of a sign I saw in a tattoo parlor: “Good tattoos aren’t cheap. Cheap tattoos aren’t good.” The same is likely true for photographers.

Clients Don’t See What We’re Worth

Part of being an entrepreneur is educating prospective client about the value we bring. It’s not that skilled photographers cost so much, but they’re worth so much. Some of the ways you can do this is by having a high-quality portfolio and a stellar reputation.

Remember: You’re not just taking photos; you’re creating an experience – every interaction from the first “hello” to the final deliverable. Your ability to take and edit photos are important, but so are the way you carry yourself, how you communicate, and your creativity, work ethic, and confidence in your skills. All of those things add or detract from your value as an artist. You want to be in a position where people want to hire you, not just any photographer.

I had a similar situation when I hired the designer who created the logos for Scarlet MavenTM and Lights Camera LawsuitTM. I could have used a discount service like 99 Designs or Fiverr, but I didn’t want to entrust a stranger with this task. I wanted to work with Square Peg Creative and Dina Miller. I’d seen and loved the way she created. I was willing to pay extra for that experience, and the resulting logos that I love.

How to Tell People I’m a Proper Photographer

The best way to tell people that you’re a professional photographer is to act like one. Create a business entity, a website with a portfolio, and contract templates for your services. If you want people to take your seriously, you have to act like a professional.

Speaking of Contracts

Contracts are relationship management documents. Once a client signs the contract, they are bound by its terms. Whenever there’s a problem, you can refer back to the contract and the terms they already agreed to. This is where you can put information like,

  • The deposit is non-refundable.
  • The photographer chooses the best images to show client. The client will not get raw images.
  • There’s no guarantee you’ll capture every image the client was hoping for.
  • The client is not allowed to edit the final images. This includes adding filters or stickers or cropping the images.

There’s a video I recommend to almost every entrepreneur called F*ck You, Pay Me, that features a graphic designer and his lawyer talking about how they use contracts to make sure the client pays per the contract’s terms. The suggestions work for many types of professional creatives.

Clients with High Expectations and Low Budgets

While many people don’t like talking about money, it is a topic you want to discuss early in the vetting process by either giving the prospective client your price list or asking about their budget. Don’t be afraid to be frank with clients who have expectations that are way beyond what they can afford. Tell them what they can afford based on their budget, as well as what you could do if they are willing to pay more so they can make an educated decision about what they want.

Clients Who Try to Negotiate on Price

In the photographer-client relationship, they are hiring you. You get to decide what is and is not negotiable in your contract. If your rates are not negotiable, be clear about that the first time they ask.

In my practice, I hand pick who are my pro bono clients and who gets a discount. That’s my call, not the other way around.

Here’s a tip I saw from another photographer: Make your prices all-inclusive. Don’t list separate prices for shooting and editing, because it opens the door for clients to try to haggle on one or the other.

Companies that Want You to Work for Free or Magazines that Want to Use Images for Free

Oh, it’s so cute when people want you to work for “exposure.” You get to decide how you respond to those requests. Here are some of my favorites:

  • Exposure is not a currency that my landlord accepts.
  • I can’t pay my mortgage with exposure.
  • People die of exposure.

Chasing Payments

Ideally, you want to create a photographer-client relationship where it’s easier to comply with the terms of the contract and pay on time, than not. Many photographers charge a non-refundable deposit to book a shoot or event and require the balance to be paid in by the day of the shoot or event. At the latest, I don’t recommend a photographer provide proofs unless they’ve been paid for the shoot.

You also want to have terms in your contract about cancelled appointments, late payments, and non-payments, so that you set yourself up to get paid what you’re owed in a timely manner.

Are You Free Next Week?

You can put the information about how far in advance a prospective client should expect to book you near your contact information or in your FAQs if you have them.  

People Assuming You will Photoshop them Perfect

This problem reminds me of Christian Siriano on Project Runway when he said, “I’m not a miracle worker, lady. I can’t make you have an ass!”

In talking with your client, set some expectations about what Photoshop can and can’t do. Assume your client doesn’t know anything about photography, unless they are a professional photographer themselves. You can educate your clients by showing them before and after images so they can see the type of edits you’ll be doing for them.

It’s ok to have fun with it, if that’s your style, by saying things like, “If you’re 5’2”, I can’t make you 5’10”,” or “If you have a ‘dad bod,’ I can’t transform you into Thor.” On the softer, more realistic side, remind your client that it’s your job to capture them looking their best, not like someone else.

Bonus Tips from my Experience as Model: Posing

Several people said they had problems with posing models or giving direction. As a model, my response is, “Don’t be afraid to try.” You’re the one behind the camera. I can’t see how I look.

If you give a model a pose and it doesn’t create a good image, try something else. I won’t know if you didn’t get the shot you wanted. I’ll think you have lots of ideas.

It’s ok to think out loud and say things such as, “I like how this light is hitting your eyes, let’s try this.”

I’ve you are afraid you won’t remember the ideas you wanted to try from other images, bring notes to the shoot. It shows you’re prepared, and thinking about what types of images might be best for me.

Learning how to pose models and give direction is something you develop over time, with practice, and watching others. Unless you’re doing some extreme work, no one is going to die. And don’t forget – I can’t see how I look, so as far as I know, whatever you’re trying is brilliant.

Lights Camera LawsuitTM

There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

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How to Give a Discount on your Photography Services without Discounting your Value

July 10, 2019 by Leave a Comment
“The Belly Dancer with the Fans” by mmockingbird from Flickr (Creative Commons License)

Sometimes photographers, like all service providers, want to provide a discount for their services. Perhaps it’s for a friend, someone you’ve always wanted to work with, or an organization you know can’t afford you and you want to help.

Nothing Wrong with a Discount

There is nothing wrong with offering a discount for your photography services, whether it’s a special one-off or a promotion that’s available to any client.

The challenge is you don’t want to cheapen the perceived value you provide. When a person buys an item at a cheap price, they may have lower expectations about it and will perceive it as less valuable than a similar product that performs the same function but costs twice as much. You don’t want your clients to discount the value you’re giving them, even when they get it at a discounted price.   

Have you noticed that it’s often the clients who are getting the biggest discounts who complain the most? I made that mistake once. I quoted someone an exceptionally low flat fee to do their contract because I thought it would be an easy project. The nitpicked so much and requested so many changes, that by the time it was done, the amount I made per hour of work was laughable. (This was also the client who taught me to put a cap on the number of edits I’d do on a flat fee project. If they wanted more edits after that, they had to pay hourly.)

Always Show a Photography Client your Value

Even when you give a client a discount, always include your standard price and then the discount. Being a professional photographer is two jobs in one – you’re an artist and an entrepreneur. The entrepreneur’s job includes educating clients and prospects what you are worth. Photography clients are not just paying for your time, but also your talents. Remind them about the value you bring to the table, regardless of what they’re paying.

This tactic is not offensive.  You see this when you buy things online. The website always starts by posting the price and tells you how much of a discount they’re giving you and the price you’re getting.

How to Write an Invoice or Contract with a Discount

This is how I’d write an invoice or payment section of a photography contract that includes a discount:

Sitting Fee:                       $200.00

I-Like-You Discount:           -$75.00

Total Sitting Fee:               $125.00

You get to choose what you’re going to call your discounts. I encourage my clients to be creative and include their personality in their contracts, but you have to decide what works for you.

Lights Camera LawsuitTM

There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

At $497, the course contains nearly six hours of legal information you can immediately apply to your business. That’s less than what I charge for two hours of legal work for clients!  

Please subscribe for more information and to make sure you don’t miss out on any special offers or discounts.

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When a Client Threatens to Leave a Bad Review

June 12, 2019 by Leave a Comment
https://www.flickr.com/photos/yazuu/3053549142
Angry Guy by Adrian Tombu from Flickr (Creative Commons License)

Here’s the scenario: A client hired you for a photography job, which you did, and you provided the deliverables on time. The client is unhappy with their photos, threatens to leave a bad online review if you don’t give them their money back.

What do you do?

You’re a Photographer, Not a Miracle Worker

Your client has put you in a difficult position. You have to work with what you’re given from the client. You don’t want to be insensitive, but you can only do so much. It may be impossible to give the client images that match what they envisioned in their head.

Many times, part of being an entrepreneur involves educating and managing the client’s expectations. Based on the client’s complaint, it may be prudent to review the images and see if there’s anything you can do, perhaps suggest additional edits than what they hired you to do or explain that this is best you could do given the constraints of the situation.

Ask Yourself the Difficult Question

Ask yourself the difficult question: Did you screw up? Do you owe this person additional edits, a re-shoot, or some type of compensation? If so, admit it.

As Peter Shankman says, “There is no greater lover than a former hater.” If you make a mistake, admit it, and make up for it, that person may become your biggest cheerleader.

Go Back to the Contract

When dealing with an upset client, having a well-written contract can help you resolve the matter and remind the client about what you both agreed to at the outset of your working relationship.

If the client is upset because you didn’t provide an image of certain pose, show them the provision that says there are no guarantees that they’ll get every pose or image they hoped for.

If the client wants to see all the images you took during the shoot, show them the provision that says you’ll only be showing them the best images and that they won’t see every image you take.

If the client says they shouldn’t have to pay because they’re unhappy, remind them that they hired you for your time and skills. Payment is expected if you fulfilled your obligations under the contract.

Hopefully, you have a photography contract that anticipated common complaints and addressed them accordingly.

You Can Always Cave to their Demand

Whether you give this person their money back is a business decision, not a legal one. You may decide that the best course of action, regardless of whether you think it’s warranted, is to give this person their money back and move on. That’s your call.

I recommend you decide in advance, just for yourself, the circumstances under which you’ll give a refund. Many photography contracts state that there are no refunds or that they are given only in rare specified situations.

If They Leave a Bad Review

If the client follows through on their threat and leaves a bad review, respond to it in a polite and respectful manner. You can say you’re sorry they’re upset and invite them to contact you directly to discuss it. (Many times, how you respond to a bad review isn’t about the upset client, but rather it’s an opportunity to demonstrate to anyone who reads it that you take client concerns seriously.)

In a perfect world, you’ll have enough positive reviews that one bad one won’t tank your average. But if you’re just starting out, one negative review could have a substantial impact on your score. You may want to invite happy customers to leave reviews about their experience to bring your average back up.

Lights Camera Lawsuit

There’s always a need for quality legal information for photographers. That’s why I created an online course called Lights Camera Lawsuit: The Legal Side of Professional Photography to address photographers’ most important questions. I want you to feel secure in your business, confident in the way you operate day-to-day, knowing that you’ve set yourself up to get paid what your worth without incident.

The course goes live on March 16, 2020 and is $497. That’s less than what I charge for two hours of work and you’ll be getting over ten hours of legal information.  

Please subscribe to make sure you don’t miss out on other fantastic offers and opportunities to interact with me.

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If You’re Going to Represent Yourself

March 14, 2019 by 1 Comment
https://www.flickr.com/photos/indyblue/262966370
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“David and Goliath !” by Indyblue from Flickr (Creative Commons License)

I’ve received a number of questions from people who want tips about representing themselves in a lawsuit. I’ve also had the experience of being in a lawsuit where the opposing side opted not to have counsel. These are my recommendations if you’re considering appearing in a lawsuit in propria persona (“pro per”).  

Don’t.

The saying is true: The lawyer who represents themselves has a fool for a client. This is doubly, or triply, true for a non-lawyer who represents themselves, especially if the other side has counsel.

You will be at a considerable disadvantage from the start because you likely don’t know the processes involved in litigation or the civil rules of procedure that apply in that court. (Law students take at least one semester of civil procedure.) If you self-represent, you may often feel like you’re flailing while trying to understand the basics of being in litigation.

Your opposing counsel may have years or decades of experience, and will use it to their strategic advantage on behalf of their client. The court will be somewhat understanding of your disadvantage, but “I didn’t know” is never a valid excuse for any mistakes you make. You will be held to the same standards as represented litigants and lawyers

Check the Court’s Self-Help Website

Many court websites have a self-help section for people who are representing themselves. This webpage may have forms and guide about the process to assist you.

If you have a law library, use it! This may be part of the court or a law school. Make an appointment with the law librarian. They are there to help you, and I’m sure you won’t be the first pro per litigant to ask them for help.

Invest some time to learn about the claims in your case. Learn the elements of each one, what is the burden of proof and who has it (including when it may shift from one side to the other). Matching elements of the claim to evidence and supporting it with statues and/or case law is a large part of litigation.

Don’t Ignore Documents and Filings

Do not ignore any documents that are served on you via email or regular mail. Saying “I never received it” won’t save you if the other side followed the court’s procedure for service. These may be things like interrogatories, requests for admissions, and other types of discovery. Not responding to these may be detrimental to your case.

Additionally, there are limited times in which you can send such documents to the opposition, and if you don’t send these to the other side, you may lose precious opportunities to acquire information for your case.

Consult a Lawyer

Some people represent themselves because they can’t afford to hire a lawyer. I get that. The legal system is biased towards people who can afford counsel. The saying “You can get as much justice as you can afford” has a lot of merit.

Even if you can’t afford to be represented by counsel, you can still hire a lawyer that you periodically consult to help you create a strategy, craft your arguments, and prepare your filings.

If you’ve been served with a lawsuit, consult a lawyer immediately! The deadline to respond comes up fast, and if you don’t respond, you could lose by default. If you want to sue somebody, even if you want to represent yourself, you should still consult a lawyer to prepare an effective complaint.

Thanks for reading this post. If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

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Why Contracts Have So Many Definitions

February 28, 2019 by Leave a Comment
https://www.flickr.com/photos/eleaf/2561831883
”
Iron Horse Bicycle Race Durango Women 10″ by Eleaf from Flickr (Creative Commons License)

This week, I had a chat with someone who was concerned about the media release provision in a contract to be in a cycling race. It said by signing up for the race, you give the organizers permission to use any video or images of you, your likeness, you name, and your biographic information for any purpose without need any additional information from you. He was worried that the race organizers could sell his life story without his permission.

I’ve seen this provision on every race contract I’ve signed – and it wasn’t one of the ones I altered. This type of provision is on lots of contracts, event tickets, even on A-frame signs around the state fair. Organizers want to use the photos from their event to promote the organization and its activities. They want to be able to make you their poster child if they snap an amazing photo of you. They want to be able to caption a race photo with “Chris Jones, 37, of Truth or Consequences, New Mexico . . .”

These organizers don’t want to sell your story to make the next Lifetime Movie. I know this because (1) they don’t know your life story and (2) they’re not in the business of sell stories for the next movie of the week.

This conversation reminded me of why contracts have so many definitions. Sometimes they start with pages of definitions. They help eliminate confusion and avoid disputes when questions arise down the line.

If there is a dispute about the meaning of a word in a contract, and both sides have a reasonable interpretation of it, the court will side with the person who didn’t draft the contract, unless the contract states otherwise. (Check your jurisdiction’s rules to see if the same rule exists where you live.)

Going back to the would-be racer, I told them if they had concerns about what a term in the agreement meant, they should email the organizers for clarification. (Never be afraid to ask questions about a contract before signing it.) If there’s a dispute later surrounding the meaning of the provision, they would be able to use the email response as the basis for their reasonable belief as to what it meant and to counter any contradictory statement by the other side.

If you’re in a situation where you need to create, draft, or negotiate a contract, please call a contract lawyer for help. (This week, my editor sent me an FYI email about a company in Columbia that is selling a “Pack Of Professionally Drafted Legal Contracts” for $24. I responded with “Let me know how that $24 contract holds up when challenged in court.”)

Thanks for reading this post. If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

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I Can’t Pre-Guarantee Your Case

February 21, 2019 by Leave a Comment
https://www.flickr.com/photos/157270154@N05/38470202756/
Photo by CreditDebitPro

I regularly receive emails from prospective clients who explain the gist of the situation they’re in followed by, “Do I have a case?” A variation of this email is the prospective client who sends me a small section of a contract they signed and a short summary of the situation they’re in and then they ask if I can help them obtain a specific outcome. Some prospects specifically say that they don’t want to hire me, not even for a consult, unless I say they have a case.

Here’s the Deal

I can’t give anyone a guarantee about the outcome of a legal matter based on an email. If the law were that easy, we wouldn’t need lawyers.

In any situation, I have to examine:

  • The parties involved,
  • Which law applies – statues and case law, and
  • What actually happened

before I can say whether you have a case.

I can’t give effective legal advice without all the pertinent information. I can’t evaluate a contract based on a single provision. I have to read the whole thing. To not do so would likely be unethical and potentially worthless to you.   

There is one caveat to this. If I’m talking with a person who wants my help, but it sounds like they need someone other than a lawyer, I’ll tell them that. Whenever I deal with someone who’s experiencing online harassment, I tell them that they may have a situation that should be handled by law enforcement. If they still want to meet with me, I warn them that this may still be my recommendation at the end of the hour.

I Don’t Want to Pay to be Told I Don’t Have a Case

I get that people don’t want to take the time or spend the money to meet with a lawyer to be told they don’t have a case. But if you want a lawyer to analyze your situation, part of what we do for a living is that analysis.

Maybe it would make sense to look at this situation using a medical doctor instead of a lawyer. I’ve never heard of anyone going to the doctor with the sniffles and saying they didn’t want an appointment unless the doctor said they could make the person better. That’s ridiculous.  Some illnesses don’t get better, and some are things like the cold virus that just has to run its course.

I don’t like telling my clients that they don’t have a case anymore than they don’t want to hear it, but sometimes that’s the case. The fact that you’re upset does not mean that you have been legally harmed. Until I actually look into the person’s matter, there’s nothing I can tell a prospective client except “Would you like to schedule a consultation?” or something to that effect.

Yes, I Charge People to Talk to Me

If you’ve ever called my office phone, you know my outgoing message says don’t leave me a voicemail, send me an email. I do this for a few reasons:

  1. Unless it’s an expected call, I rarely answer my phone. When I’m working on a client’s matter, I don’t want to be distracted or interrupted. I’ve also turned off the ringer on my office phone. I won’t notice the call coming in unless I happen to be looking at the screen and see it change to the incoming caller’s number.
  2. When you leave a voicemail on my phone, a little red flashy-flashy light goes off until I deal with the message. It annoys the crap out of me. (Pro tip: Don’t annoy your lawyer.) It forces me to divert my attention away from focusing on my client, deal with the message, and then take extra time to pick up where I left off on my client’s matter.
  3. If the call is from a prospective client, they usually want to tell me their whole story before asking for help. This is what the consultation is for, and no, I don’t do free consults.

Sometimes all a person needs is a consultation. I’m happy tell people how they can help themselves in a situation, and I have no problem providing recommendations that are mindful of the person’s budget.

A few years ago, someone called me and they were incredulous when I said that they had to pay to talk to me. Listening to, analyzing, and providing information and advice on a legal situation is what I went to law school to do. This is my profession. If you want to hear my perspective on your legal situation, you have to pay for that privilege. (There are lawyers who do give free consults. I am not one of them.)

 I wish there were more guarantees in the legal profession. Just this week, I reminded a colleague that our job is to present the best case for our client and advocate on their behalf, but the ultimate decision in the matter is left to another authority.

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Filed Under: Nontraditional Lawyer Tagged With: , , , , , , , , ,

How to Write a Decent Trademark Cease and Desist Letter

February 7, 2019 by Leave a Comment
https://www.flickr.com/photos/tangi_bertin/541603067/
Stop by tangi_bertin from Flickr (Creative Commons License)

A friend recently forwarded me a trademark cease and desist letter he received and asked if it was anything they needed to worry about. Now, I always tell my clients to take such letters seriously, and give them their due consideration, but then I read this particular letter. It was possibly the worst cease and desist letter I’ve ever read. It was written by an entrepreneur, not a lawyer, so I automatically mentally cut the sender some slack, but still, it was bad.

If you’re in a situation where you suspected a competitor is violating your trademark rights, please get your lawyer involved. And if you’re going to write your own cease and desist letter, make it a decent one.

Make Sure Your Trademark has Likely been Infringed

A trademark has two components. It’s the name, logo, slogan, etc. that you’re claiming as a trademark plus the product or service on which you’re using it. (It’s possible for two completely different companies to have the same trademark, like Delta Dental and Delta Airlines.) For many companies, the first trademark they register is just the word or phrase that is the name of your company or product/service. This is called a “word mark.” It’s just words, no images, graphics, or sounds.

When you have a registered word mark and someone uses the same word or phrase, it’s not automatically a violation of your trademark rights. For example, Paris Hilton has registered trademarks for “That’s Hot” for “multimedia entertainment services” and apparel. These trademarks do not give her the ability to stop everyone from ever using the phrase “that’s hot,” as a descriptor. If a person is not using the word or phrase you registered as a trademark for their business, it’s likely not trademark infringement.

What to include in a Cease and Desist Letter

While I don’t endorse the idea of business owners writing their own cease and desist letters, it happens. If you’re going to write your own, these are some of the things I’d tell my client to include in their letter if they insisted on doing it themselves:

  • Provide the legal name of the person or company that owns the trademark,
  • Identify your trademark including the registration number and a screenshot of the trademark listing from the USPTO database,
  • Identify the alleged infringing activity, preferably with a URL and/or screenshot if it’s online or photographs if it is not, and
  • Clearly state what you want the recipient to do in response to your letter with a due date for compliance.

When to get the Lawyers Involved

If you encounter suspected trademark infringement, call your lawyer. Even if you want to send a cease and desist letter yourself, call your lawyer first. They can help you make sure there’s a real trademark issue that requires your attention and help you craft the cease and desist letter.

Many of my clients want to reach out to the alleged infringer to speak business owner to business owner, first. They want to send friendly but clear cease and desist letter, and give the other side a chance to resolve the matter “without having to get the lawyers involved.” I have helped write many a letter that included that phrase. The other side doesn’t need to know that I’m already involved.

If they don’t respond favorably to my client’s friendly letter, then I will follow it up with a strongly worded nastygram that demands that they cease all uses of my client’s intellectual property and failure to do so will result in litigation (or whatever consequences my client has selected).

My recommendation for clients is to refrain from making threats in cease and desist letters unless they’re willing to follow through with it. Otherwise, if the other side calls your bluff and you don’t follow through, you will lose all credibility and any further demand letters will likely be ignored.

If you threaten litigation in your cease and desist letter, be ready to pull the trigger if the suspected infringer doesn’t comply with your demands. Some people won’t take you seriously until a lawsuit has been filed. A lawsuit will force them to deal with the situation because of the court-imposed due dates or risk the effects of a default judgment if they ignore it.

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Filed Under: Intellectual Property Tagged With: , , , , , , , , , ,

How to Legally Use User-Generated Content

January 31, 2019 by Leave a Comment
https://www.flickr.com/photos/zoidberg72/16243539933
Selfie by dr_zoidberg from Flickr (Creative Commons License)

Here’s a question I get from companies and their marketers: What are the legal dos and don’ts for using user-generated content? These are situations where a company wants to use a photo, video, or text created by one of their fans, usually from a site like Instagram, Facebook, or Trip Advisor. Many companies merely want to approach the person through the platform where they found the content they want to use and ask for permission to use it. While this strategy is convenient, it may not be in the company’s best interest.

Using Content Within a Platform

It’s easiest when a company wants to share someone’s post within the social media platform – e.g., sharing someone’s Instagram photo on the company’s Instagram. Many social media sites build this option into the platform where you don’t even have to ask for permission to share someone’s post on another’s account.  

Of course, I’m a risk-adverse lawyer so I tell my clients to review the terms of service first to see what happens just in case it turns out the person who created the post you shared didn’t have the right to do so and now you have to deal with the fallout. Depending on the circumstances, I might contact the person to ask the person if they took the photo (which would indicate if they’re likely the copyright holder), try to verify that the original poster is complying with the platform’s rules

Using Content Across Different Platforms

Here’s where it gets a little more complicated. These are the situations where you want to take content from someone’s post on one platform and share it on a different social media site, your website, or another third-party platform. For this situation, I recommend you have a contract drafted by a lawyer. You could have them create a template for you if curating user-generated content is part of your marketing plan.

If I were creating a contract template for obtaining permission to use content created by a user or fan, I’d likely include terms such as:

  • The user owns the IP in the content: either they created it or they have permission to use it
  • The user has authority to grant the company permission to use the content
  • The user grants the company a perpetual, irrevocable, worldwide, sublicensable, paid-in-full, royalty-free license to the company to use the content for any purpose without needing the person’s consent or credit, including the creation of derivative works (or in the alternative, that the user grants the company a copyright assignment)
  • The user will reimburse the company’s legal fees and damages if it is accused of wrongdoing because the company used the user’s content

Such a contract would also include boilerplate verbiage, like a dispute resolution provision that states how the company and user will resolve disputes if one occurs.

Always Apply Reality

In any potential legal situation, be sure to apply reality. If a company wants to use a photo with two people in it, whoever posted the image may not be able to speak on behalf of the other person in the photo, and you may need release from identifiable people to avoid being accused of violating their right of publicity.

Additionally, it will likely take longer to get permission if you want to use images and other content across platforms. Be sure to build that into your timeline if your marketing plan involves using user-generated content.

There are also those who may question whether it’s worthwhile to have a lawyer create a contract for these circumstances. When there are no issues, a contract may seem superfluous; however, contracts are imperative in situations where there is a dispute and/or the parties forget the terms of their agreement. When you work with your lawyer to create you contract, make sure it has provisions that will apply to situations that are likely to occur as well as the worst-case scenarios.

If you liked this post and want to know more about my work, please subscribe to the Carter Law Firm newsletter where I share behind-the-scenes information and readers get exclusive access to me.

Filed Under: Business Law, Intellectual Property, Internet law Tagged With: , , , , , , , , , , , , , , , , , , ,
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