Guest post by @DazaDesign: What lawyers should know about their designer clients

Lawyers and their design clients: Collaboration of the right and left brain

Let’s get creative, shall we? It’s 2016, and it’s high time we engage all portions of our brains.

 That thought occurred to me when I heard from the smart and talented folks at Daza Design. You can read more about them at the bottom of this post (and maybe even contact them with a small or large design request). Someone at Daza asked me whether my readers ever have to interact with clients who are artists, performers, or designers? If so, those clients might have special needs that require special handling.

I bit, as I was interested in the topic and thought you might be too. What they sent follows below, in today’s guest blog post. Enjoy, read, consider, and then do something creative with your day!

In this day and age, content for so many different media platforms is created every day by creative agencies, design studios, or even freelance designers. With the amount of content that’s put out into the internet, there are bound to be legal issues that arise with all the intellectual property floating around.

More than any time in the world, designers need lawyers and their legal advice. It’s become increasingly apparent, even painfully so, that the general public doesn’t understand legalese. As a professional communicator — which lawyers can be described as — it’s your duty to better understand the needs of your designer client. Knowing your designer client will help you connect with them and allow you to share your legal advice more effectively.

What you must know is that there is one thing that universally connects all designers: their content. Intellectual property theft is the one fear that unites all designers. Failing to protect their intellectual property rights can lead to serious repercussions for a designer’s career. Designers know this and it’s what makes your role as a legal advisor and their lawyer that much more crucial to their success.

All designers need contracts!

Designers want to trust their clients, but any good lawyer would tell them to use a contract before initiating any business negotiations. Experienced designers are aware of this and never fail to present a contract before proceeding with a client’s project, but designer neophytes may find themselves without one. Help them understand that the contracts you draft for their services will help protect their rights.

As a lawyer, you want to be as competitive as possible to attain (and in some cases, retain) the services of your designer client. Time is of the essence in any profession, but more so for designers and design agencies of whom are always working against the clock to deliver their contracted projects. This means that your designer client may expect you to draft up a contract specific to their needs as quickly and as effectively as possible. As their lawyer, it’s your responsibility, and obligation, to match their pace step-by-step.

Understanding the designer client requires a specific focus.

Every designer needs their own terms and conditions.

The nature of the designer’s business is the rendering of services. As essential as contracts are for designers, it’s just as crucial that designers provide their own terms of service. These terms and conditions are another added layer of protection that a lawyer can develop for their designer clients. Many times, designers simply don’t have the time nor the experience to draft their own. Sometimes drafting short disclaimers or finding generic templates online aren’t as helpful as teaming up with a local lawyer.

Designer clients seek a lawyer who can not only draft the terms and conditions in the shortest amount of time, but who has the ability to individualize and customize their terms for them. This is your chance as a lawyer to show the initiative of establishing certain components of their terms that they may not have thought of themselves. Adding conditions related to their hour availability or their hourly rates in the terms and conditions can go a long way in making life easy for your designer client.

 Protect their copyright!

As we mentioned, protecting their intellectual property is of top priority for all designers. This part can get especially challenging for designers who have yet to consult with a lawyer. Your legal advice is instrumental to their success. The rights to their work give them the right to collect royalties for the additional use of their designs. Not only that, but it will also keep their work protected from manipulation—another important distinction for your designer clients as their brand and reputation is as important than their design services itself.

Helping designers distinguish how to sell their work without selling their rights is an important thing to clarify with designers. Oftentimes, contracts will have clauses that abolish the designer’s rights over their work. Helping your designer client identify these clauses to have it removed or its scope mitigated will protect your client’s copyright. Lawyers that show initiative in this regard will help them develop more meaningful relationships with their designer clients.

Designers need lawyers more than ever. Whether they’re a freelancer or belong to a large creative studio, designers today are learning that acquiring legal services and advice will be crucial to their career’s success. It’s up to you to take them there.

About Daza Design:

Daza Design is an online design agency that provides website, logo, and print design services. Their top-notch services have helped clients in a wide range of industries. They love all things design. It’s what they do from pixels to print.

You can reach Daza Design at:

• Tel: (213) 674-0048
• Email: team@dazadesign.com
• Web: www.dazadesign.com

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Court finds no IP protection for yoga poses—even hot yoga!

Yoga positions and breathing exercises are not protectable expression, the Ninth Circuit ruled.

Last week, I praised some lawyers who are bringing yoga and other wellness tools to the masses.

But in case you wondered how legal that topic was, I share a blog post that examines a court fight over yoga—for reals. The article, which is here, explains a lawsuit regarding how intellectually protectible a yoga method and position is. Turns out, not very.

(Adding to my pleasure is that the author, Teri H.P. Nguyen, is an attorney at McDermott, Will & Emery—where I once worked, in Chicago—and that she is a graduate of UC–Hastings Law—where I went. I am feeling the resonant vortexes of the yoga world already!)

Here is the summary of the Ninth Circuit decision:

Affirming the district court’s grant of partial summary judgment, the U.S. Court of Appeals for the Ninth Circuit concluded that a sequence of yoga poses and breathing exercises was directed to the idea or process of improving health, not to a protectable expression and therefore not entitled to copyright protection. Bikram’s Yoga College of India v. Evolation Yoga, LLC, Case No. 13-55763, (9th Cir., Oct. 8, 2015) (Wardlaw, J.).

Among those readers who partake of yoga, as a student or an instructor, was that a good decision? Was the lawsuit doomed from the start, or should the court have gone another way?

Let me know how the court did: Sun salutation or downward dog?

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Federal court sentences all of us to more ‘Happy Birthday’ recitations

Says who? A federal court and generations of 8-year-olds can’t be wrong.

Surprising news out of a federal court this week: “Happy Birthday” is part of the public domain.

That’s right. That most-sung song can now be sung and recorded without fear that some hyper-alert IP attorneys will tell you to cease, desist, and pay a stiff royalty fee. As NBC News reports, the company that thought it owned the music and words was apparently wrong on the second count. Oops.

That’s certainly good news for the many performers and filmmakers who may want to shoehorn the song into their creative work, for whatever misguided reasons they may have.

For the rest of us, who for years have been seeking methods to end use of the song, we remain without recourse: The song will continue to dog us, annually, until the bitter end.

OK, I am willing to rethink my opposition to “Happy Birthday.” Marilyn Monroe and an American President can’t be wrong.

Because you like even more legal stuff, here is a video news story out of San Francisco in which one of the plaintiffs—now “ecstatic”—explained her legal path to the most musical of resolutions.

Joy-killers that the aggrieved party is, we expect there to be an appeal. So do your monetarily related “HB” recording while the iron is hot.

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Hands-on copyright law assistance for artists on November 12

Stephen Wade Nebgen

Stephen Nebgen is at it again—offering information that may be helpful to artists and writers—and the lawyers who serve them.

I wrote about Stephen and his entertainment law mixers before. And next Wednesday, November 12, he holds another in his series of entertainment law workshops. This one will be in downtown Phoenix at MonOrchid Gallery and Studio (214 E. Roosevelt Street, Phoenix 85004).

Here is how Stephen describes the November 12 event:

“These events will be a little different than the seminars that you may have attended in the past. The biggest difference is that there will be a hands-on application of the information presented. For example, the first workshop will address issues of Copyright Law. After discussing the important nuances of Copyright, we will then go through the process of filling out a Copyright Application online.”

The event opens with a 7:00 pm reception, followed by the 7:30 program. The cost is $50 (or less if you’re a student or a member of IFP/Phx).

Stephen tells me that the event is aimed more for artists, but he believes attorneys would get a benefit also. And monOrchid shares a building with Songbird Coffee and Tea, so you can’t go wrong.

Follow-up workshops will be held on the second Wednesday of every month.

To RSVP, call (602) 253-0339.

The workshop is presented in collaboration with monOrchid’s own Shade Projects (which is worth its own story entirely!).

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That big football game has a name, but should we use it?

The Big Game? What are they getting at? The World Cup?

This weekend, that big football event we’ve come to call the Super Bowl occurs. But this time of year we get to enjoy the timidity of advertisers, who tremble at the thought of using the “SB” term itself.

As a result, we are inundated with inane ads that trumpet “The Big Game” or some permutation of that milquetoast label.

The Super Bowl organizers and their attorneys guard that name carefully, as they should. But when the use is entirely peripheral to the game, and when advertisers mention the game not to confuse consumers but to offer products and services that would improve the game experience, they believe they cannot utter “Super Bowl”? Gimme a break!

That kind of circumscribed thinking made me chuckle as I gazed at the accumulation of ads that came in this week’s Arizona Republic. In this case, it was supermarkets who studiously avoided the term. Bizarro world.

Extending that “thinking,” I guess we should say that “This year’s Big Game is between a team from Denver and another from Seattle.” Wary of uttering “Seahawks” or “Broncos,” that’s all we should say.

The disappearing Super Bowl, via the timidity of advertisers.

To add a little legal thinking to my irritation, turn to this story echoing how ridiculous the fear is.

Here, the author quotes another on the harm we do to fair-use concepts when we surrender those rights without true understanding:

“In their recent book Reclaiming Fair Use, Pat Aufderheide and Peter Jaszi warn that when we refrain from exercising our fair use rights, and act as if those rights do not exist, we help create a culture in which fair use loses ground to overly aggressive copyright enforcement. The same is true in the trademark realm. We can only hope that when the next Superbowl rolls around, the Times and its brethren, and even the HDTV sellers, will have shed their timidity.”

A hat tip to the eagle-eyed Kathy Nakagawa who spotted this wonderful issue that intersects sports and intellectual property.

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Ethics, Social Media, Teppanyaki at Wednesday @PRSAPhoenix Event

Getting some legal education over a great meal has always been a terrific combination. This Wednesday, lawyers and others will belly up to teppanyaki bars to hear about ethics, law and social media.

The lunchtime gathering is hosted by the Phoenix chapter of the Public Relations Society of America. (Follow them on Twitter here.)

I’ve enjoyed a good number of PRSA events in the past, and I appreciate the lawyer-filled panel they’ve created. The attorneys will sit at grill tables at Sapporo, where they will facilitate discussions among attendees—all while they are entertained and nourished by the creation of delicious food.

Here is more information about the event from the PRSA:

Have you wondered about the legal ramifications of posting news clips on your website or whether or not you need permission to re-use an image of a photographer you hired for an event? If so, do not miss our upcoming Ethics Luncheon.

Join us for an interactive discussion on copyright and social media law, and other common ethical dilemmas set around teppanyaki tables. The luncheon will feature small-table discussions with industry leaders while enjoying the entertainment of the teppanyaki chefs. Come hungry and prepared with your questions.

A social way to learn about social media law

This luncheon is also our annual membership meeting, so come hear the latest updates about our Chapter and meet this year’s board of director’s candidates.

The panel features the following professionals:

• Matt Bycer, trademark and patent attorney at Bycer Law PLC and adjunct professor of intellectual property and economics for National Paralegal College.
• Sean O’Hara, associate at Snell & Wilmer, focusing on intellectual property litigation and complex commercial disputes.
• Lori Higuera, director in the Litigation Section at Fennemore Craig and a member of the Labor and Employment, School Law and Commercial Litigation practice groups.
• Gregory Collins, attorney at Kercsmar & Feltus PLLC, focusing on trademark, copyright and patent infringement matters.

Register here.

When: Wednesday, Oct. 10 from 11:30 to 1 p.m. with discussions beginning at 11:45 a.m.

Where: Sapporo, 14344 North Scottsdale Rd., Scottsdale, Ariz. 85254, Thunderbird East Plaza (southwest side of Scottsdale Road & Acoma).

Phone: 480.607.1114

Cost: $45 all walk-ins

About the PRSA:

The Public Relations Society of America (PRSA) is the world’s most prominent organization dedicated to the professional development and advocacy of PR practitioners. The Phoenix chapter is among the largest and most respected chapters nationwide. Join us to gain access to career advancement opportunities, industry events, awards programs, accreditation and a variety of skill-building resources.

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Free Webinars by @FordhamLawNYC Explore Immigration, Foreclosure, More

If you are seeking some lunchtime learning, a few upcoming webinars may fill the bill. The following are co-sponsored by Fordham Law School and The National Law Journal.

They are free to “attend,” but pre-registration is required. (See below for web registration details.)

And are any of the topics something you’d like to see covered in Arizona Attorney? Let me know, and we could slot an article.

Here is the information from Fordham:

Ethical Issues for Criminal Practitioners
October 2, 2012 at 1 p.m. Eastern

Panelists will focus on the ethical issues that often arise during criminal cases and the recent developments in ethics and professional responsibility.  Speakers include: Hon. Jed S. Rakoff, Judge for the U.S. District Court for the Southern District of New York; Bruce Green, Professor and Director of the Louis Stein Center for Legal Ethics at Fordham Law School; Rita M. Glavin, Partner at Seward & Kissel LLP; and Sylvia Shaz Schweder, Assistant U.S. Attorney for the Eastern District of New York.

The Foreclosure Crisis in the Courts
October 16, 2012 at 1 p.m. Eastern

Discussion will center on important trends in foreclosure law in the wake of the housing crisis. Speakers include: Nestor Davidson, Professor of Law and Founding Director of the Urban Law Center at Fordham Law School; Bruce J. Bergman, Partner at Berkman, Henoch, Peterson, Peddy & Fenchel, P.C.; and Meghan Faux, Director of the Foreclosure Prevention Project at South Brooklyn Legal Services.

Navigating Prosecutorial Discretion in Immigration Law
October 30, 2012 at 1 p.m. Eastern

President Obama’s recent prosecutorial discretion initiative, the Deferred Action for Childhood Arrivals (DACA) relief process will be the focus of discussion. Speakers include: Jennifer Gordon, Professor of Law at Fordham Law School; Marielena Hincapié, Executive Director at the National Immigration Law Center; and David A. Martin, Warner-Brooker Distinguished Professor of International Law at the University of Virginia School of Law and Deputy General Counsel, Department of Homeland Security (2009-2011); General Counsel, Immigration and Naturalization Service (1995-1998).

The Boundaries of Fair Use After Cariou v. Prince
November 13, 2012 at 1 p.m. Eastern

Panelists will analyze the decision waiting to be made in Cariou v. Prince and the impact the case will have on the boundaries of visual art, fair use, and freedom of expression, particularly in visual art. Speakers include: Sonia Katyal, Joseph M. McLaughlin Professor of Law at Fordham Law School; Dale Cendali, Partner at Kirkland & Ellis LLP; Virginia Rutledge, Attorney and former Vice President and General Counsel for Creative Commons; and Christine Steiner, Special Counsel for Sheppard Mullin Richter & Hampton LLP.

To register, go to law.com/ethics, law.com/foreclosure, law.com/immigration or law.com/fairuse to register.

Dates:

• October 2, 2012 (Ethics)
• October 16, 2012 (Foreclosure)
• October 30, 2012 (Immigration)
• November 13, 2012 (Fair Use)

Time: 1 p.m. – 2 p.m. Eastern

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World Intellectual Property Day Celebrated With Bells, Whistles™

If your community is anything like mine, your morning may have been marked by the rush of speeding flower-delivery trucks. Each was laden down with bouquets of blossoms, all headed to lawyers and law firms focused on intellectual property.

Today, you see, is World Intellectual Property Day (I’m sure I didn’t need to remind you).

Tonight, the saloons and restaurants will be packed with IP attorneys, heady with the day’s festivities. Voices will be raised in passion amidst the war stories of obviousness, and copyright, and publication; they will not be estopped.

So if you get the opportunity today, hug a patent lawyer and thank him or her for their work.

Certainly, I jest, for WIPD is a real and significant occurrence. I take this stuff pretty seriously, so before you ask: Yes, I did pay the royalty fee to publish that great cartoon above!

Here—in a more serious format—is what the Library of Congress tells us about the annual event:

Copyright Office Celebrates World Intellectual Property Day 2012

April 26 marks World Intellectual Property Day, an international celebration of the visionary innovation and creative expression fostered by the intellectual property system. The U.S. Copyright Office joins the World Intellectual Property Organization (WIPO), its Member States throughout the world, and our colleagues across the U.S. government in celebrating the significant contributions of authors and other creators to our global society.

We are fortunate to live in a culture that values the talent and dedication of writers, composers, musicians, photographers, filmmakers, artists, producers and other authors. As the Supreme Court has noted: “The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

We also live in an age of great technological innovation. This not only affects the ways in which authors may disseminate creative works and consumers may enjoy them—it affects the very means by which works are created and knowledge is accessed. And it calls for a robust legal framework for the 21st century—a framework by which authors are respected, investments (both intellectual and financial) are encouraged, enforcement measures are responsive, and limitations and exceptions are meaningful.

For more information about copyright law, please visit our website at www.copyright.gov. To learn more about WIPO, visit www.wipo.int.

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