I Will Not Tell You Where To Get Free Forms Online

“Greg,” a prospective client might ask me, “Where can I find a free online form to create my contract/document/will?”

“I don’t recommend doing that,” I would likely respond.

“But isn’t the democratization of the law something to celebrate?” they might retort. “Why are you against progress?”

Just to be clear, I’m not against the public having access to affordable and useful legal information (what do you think this blog is, after all?) and I’m very much in favor of people with genuine financial limitations having SOMETHING rather than nothing. So in a pinch, if you can’t afford a lawyer, a template document can be a useful tool.

But it’s true that I don’t like free online forms and don’t trust them. And if you’re not in dire financial straits, I don’t recommend using them. Why?

1. You don’t know what’s in them. The legalese in these forms can be confusing and because of that, the form might contain language that isn’t applicable to your situation, or worse, is actively harmful to your interests. I’ve seen first hand how badly this can go… several years ago I had a client who used an online form to license his work to another party. But because he selected the wrong form, he accidentally ended up selling the rights to his work outright and wasn’t able to get them back. There’s a reason lawyers spend so much time and money on schooling and then years working for other attorneys… to build up the knowledge base and skills needed to understand how to read and write these documents.

2. They’re not written for your needs. While forms can sometimes be a useful jumping off point, they can fail to address issues that are unique to your situation. Not all documents are made equal and you may require specific language in yours that a form can’t anticipate. And if you intend to use a contract template over and over again, there may be differences between your own clients that necessitate changes between contracts. For example, you may require different payment terms for different clients because one has proven to pay timely and reliably and another has proven to be delinquent. A form is designed to be a one-size fits all approach that may not be appropriate for you.

3. They can’t anticipate what you don’t know to look for. Let’s be honest. You don’t know what you don’t know. That’s why you hire a professional anytime something bad happens with your car, your house, your lower back, etc. Using a form that can’t anticipate your knowledge level means you could be leaving money on the table you didn’t know you had a right to; it could leave out important clauses that protect your interests and include clauses that harm you; it could result in ambiguous terms that neither party can understand; it could force you into arbitration when you’d rather use the court system. You may end up worse than you started because you didn’t know what to look for.

4. They may not be legally valid in your state. While many contract provisions are valid no matter where you live, some states have very specific rules regarding contract construction or formalities that a form may not pick up on. For example, if you are drafting a will, some states may require you to have it notarized and attested while others don’t. Some states may permit a contract to be modified while other states may forbid it. Failing to check your state's specific language requirements for documents may render them legally invalid.

I understand that attorneys are expensive and I also know there’s a subset of people who just want to DIY everything, but the benefit to having an attorney draft your document is that you’ll be able side-step these pitfalls while also having your needs met in real time. So no, I won’t tell you where to find free form templates online. Partly because I want you to pay me to do it for you, but largely because I want you to get it done right.

When Is It Okay to Write a Bad Review of a Client?

If I had a dime for every time a client complained to me that a customer violated a contract, well thankfully I’d only have like 50 cents. But still, it does happen. And when it does the client sometimes asks me if it’s okay to write a bad review online. That’s when I hesitate.

Whenever possible, You should never badmouth a party in public at all… yes even one who acts in bad faith. But if you’re absolutely going to do it no matter what, you should definitely wait until you’ve recouped what you’re owed (or as much of it as you can) from them and acquired a written history of their bad faith actions. Even then I’m hesitant to advise it. I’m a big fan of killing them with kindness no matter how badly you’re treated, because if you’re ever involved in a litigation, all of your communications will come out in discovery; you don’t want a judge or jury thinking YOU’RE the asshole in this transaction.

Most people don’t write bad reviews when they’re in a good frame of mind. They’re upset - understandably so - but not necessarily thinking clearly about the long-term effects of their actions. So it’s really easy for a person who has been harmed and is mad about it to overstep and accidentally defame the offending party. And the last thing you want is to be sued for defamation when you’re the victim.

There’s a fine line between warning people of bad faith operators and defamation. Defamation is defined as a statement to at least one other party about a person designed to ruin that person’s reputation. Usually the statement must also be false, but that is not a requirement in every state. When the defamatory statement is spoken, it is called slander, when it is written or otherwise recorded, it is called libel, but no matter what form it takes, the effect is the same. 

Your intent in making the statement also matters, as well as the defamed party’s public status… if the party is a public figure (politician, celebrity, etc), for example, your statement must be made with malicious intent, while a statement against a private figure must only be made with negligence. It’s also worth noting that simple name-calling is generally not considered defamation and statements of opinion might also not be considered defamatory (depending on context, of course) since they are harder to prove.

Here are some examples:

“Don’t work with John Smith Productions. They purposely stole my idea and cut me out of the production without paying me!” This is most likely defamation if the statement is false because it asserts as fact that the production company stole your work (on purpose, no less).

“I think John Smith Productions used my copyright without asking me.” Because this is a statement of opinion, it is less likely to be considered defamatory, though it wouldn’t necessarily prevent the production company from suing you anyway, especially if the statement is untrue.

“John Smith Productions is filled with conniving thieves and John Smith is the worst of them all!” Whether or not this is factually true, because this statement is merely name calling and doesn’t allege actual wrongdoing, this would not be considered defamatory.

What I tell people who are determined to write a bad review online is this: divorce yourself as much as you can from emotion. Statements of fact that you can actually back up with evidence are best. And of course, make sure that whatever you say is TRUE. When in doubt, be kind and truthful. Just because you were treated badly doesn’t mean you have to become the bad guy too.

Dear Artists, Don’t Stick Your Head In The Sand

Imagine one day you decide to start a podcast. You're very excited about your new venture and spend countless hours researching topics, writing copy and setting up your recording booth just so. But you know that if you want people to listen, it needs to be entertaining, and 45 minutes of you talking into a microphone won’t be. It's got to be a real multimedia experience; that's the difference between entertainment and lecture. Among other things, you'll need music, maybe some sound effects, and even archival audio material to spice things up. 

So where do you find those things? And when you find them, do you properly attribute them? Do you request permission to use them and pay a fair licensing fee? If there’s something specific you want, do you make a good faith effort to find the owner, or do you just take it? If you don’ have satisfactory answers to these questions, you may want to rethink your strategy before you hit "publish."

One hallmark of being an artist is excitement about your latest work and a strong desire to get it out into the world. You want people to see it, to comment on it, and hopefully, to enjoy it. Any artist who claims otherwise is lying - to you or themselves. It's easy in that situation to get tunnel vision and let caution fall by the wayside. When momentum is on your side, why get bogged down in administrative matters?

I understand that impulse as much as anyone. I've been an artist (I like to think I still am) and I see it with my clients.  But I want to take this space to urge you, dear artists, not to stick your head in the sand and assume no one will care about those administrative matters. Even if you don’t, I promise you someone else does. I’ve long advocated on this blog for sweating the business stuff because being an artist these days means being a business owner - whether or not its formalized and even if it's not a primary means of income. Using the copyrighted work of another without permission puts you and your business in jeopardy. Maybe not today and maybe not tomorrow, but eventually someone is going to notice, and they're not going to accept "I didn't know" as a reasonable excuse.

It's tempting to pin your hopes on fair use, but the problem with fair use is that to prove you’re covered by it, you need to defend yourself, which almost certainly means thousands of dollars in legal costs. Some courts view fair use as a right, while others view it merely as a defense (which means you can't assert fair use until AFTER you've been sued), but practically speaking, the only way to know for sure whether fair use applies is for the litigation to play out. Just saying the words "fair use" is no more a shield against litigation than yelling "I declare bankruptcy" a way of erasing debt.

We live in a litigious society. And IP holders, especially large corporate ones, have no compunction about hailing little guys into court over minor infractions. Defending yourself will take money you don’t have, and months or years out of your life. Sometimes, companies go bankrupt simply defending themselves in court. I can assure you that even if you win, it’s not worth it.

Which means - let’s say it together - you have to sweat the business stuff. You need to have things like contracts, bills of sale, release forms, licensing agreements, and business bank accounts. It means you probably have to incorporate your business. It means you can’t rely on fair use unless a lawyer tells you it’s okay. It means you have to ask permission to use work you didn’t develop. There’s a lot more to it than that, but you get the gist.

Don’t stick your head in the sand, hoping that ignorance will save you. Pay attention to the administrative matters. Build it into your schedule and workflow. If you hate doing it (welcome to the club), have a friend or spouse or family member help you. I’m not trying to rain on your parade. I’m here to tell you the rain is coming one way or another. I just want to make sure you have an umbrella.

Sweat The Business Stuff: How To Price Yourself

Maybe the most common question I get from artists is "how much should I charge my clients?" My response is usually:

[youtube http://www.youtube.com/watch?v=miSP9YwhktQ&w=420&h=315]

I understand why I get this question. Artists at the beginning of their careers are concerned with how they look in the marketplace, so they think that comparing fee structures is a good way to measure success. They hope that, as a lawyer, I'll be able to rattle off price points like trivia - "You're an illustrator? $1000 an hour! Graphic Designer? $700 an hour! Camera operator? $4 million a day!"* I can certainly do that, but I won't, no matter how much I like you. I'm not that short-winded! To get at the heart of this answer, you need to ask yourself what kind of business you want to run. And if there's one thing I've been consistent about in this blogspace, it's that as an artist, you are a business owner whether you like it or not. And sometimes you just gotta sweat the business stuff. That means knowing the value of your time, your work, and YOU.

So how do you do that?

Well, you'll want to do some very math-y things to figure out what you need to earn to survive (i.e. determining your overhead, profit margins, etc.), some of which may require an accountant. I won't go into that now because Lifehacker has already done a good job of that here and here.

That's the easy stuff anyway and it's not sufficient to understand your real value. You have to go deeper, and I don't think "my competition charges X for their services" is, alone, a compelling reason to decide what to charge a client. How do you want your clients to see you? How do you want to spend your time? There's no right answer, and what works well for one business owner may not work for another. For example, I charge flat fees for legal work, despite the industry standard being hourly billing. I chose that billing strategy for one very simple reason: I don't want to chronicle how I spend every minute of my day. That doesn't seem like a good use of my time or energy. I've had other lawyers tell me I'm making a huge mistake, but this works for me, and the time I don't spend tallying up my billable hours is time I can use to work for another client, write for this blog, or go on a bike ride.

Here are some questions that I asked myself when I started this law practice. You may want to consider them as well.

• What are the industry standards? Do those standards reflect the kind of business I want to run? Can I deviate from those standards and what would that deviation say about me to my peers, friends, and clients?

• What fees are my competitors charging? Are those fees fair in a geographical context (e.g. fees that are fair in New York may be exorbitant in Kansas)?

• What's more valuable to me: my time or the project? If I choose time, will I bill hourly, weekly, flat fees, or by some other metric?

• Who are my prospective clients? Who is my potential audience? What does my billing structure say to them about my business?

Ultimately, what you choose to bill a client is in your discretion and I think whatever you decide should have a very solid philosophical and economic foundation of reasoning. A lot of this is going to be trial and error at the beginning too. No business starts out fully formed. In my early producing career I was loaning myself out for $150 a day, which I thought was so astronomical that I felt guilty for robbing my clients blind. Only later on did I realize I was dramatically underselling myself and that producers routinely earned $250-500 a day. Whoops!

What I'm getting at here is that you should do things YOUR way, regardless of how everyone else does it. That will set you apart from the competition. You'll look more thoughtful, and I think clients respond to that. Over time, they'll flock to you, and then you won't care what others charge. You'll only care about how to find time for all the work you have.

*Note: these are not actual rates for these jobs. DO NOT quote these rates to potential clients.

Sweat the Business Stuff Redux: Patience and The Art of Turning Your Art Into Your Business

While visiting my family in Connecticut over the holidays, my mom came to me on behalf of a friend who had a legal question.  This friend "Sally" is a middle school teacher and had developed a unique idea for an educational curriculum for science teachers.  She wanted to market and sell the curriculum, but had some concerns over whether she could use the title she came up with.

Since I was in the Christmas spirit and Sally was operating on a budget of less than zero, I told my mom that Sally could very easily (and for free!) run a trademark check at the U.S. Patent and Trademark Office website (titles are protected under trademark law, but only if registered through the USPTO).  If the title was available, the website explained how she could register it and what it would cost.  I also suggested to my mom that Sally find a way to hire a lawyer despite budget constraints because A) I'm not licensed to practice law in Connecticut and therefore couldn't provide anymore worthwhile advice, and B) there might be some trademark dilution issues if the title was too similar to something else already out there.

A few days passed and my mom told me that Sally had gone to the USPTO website but ended up without any answers.  To Sally, the website was difficult to navigate and understand; she wound up more confused than ever.  When my mom asked me what Sally should do, this was my answer:

"Sally should hire a lawyer.  If she can't afford one, she'll have to become her own.  That will mean spending a lot of time being confused at first.  But eventually she'll understand and be a better business owner because of it."

In the past, I've spoken about sweating the business stuff, but I haven't really detailed what that means for all you budding artrepreneurs out there.  So by way of closing out the year at The [Legal] Artist, here are the top three things you and Sally need to do to turn your art into your business:

(1) Have patience.  Seriously, this may be the most important thing I ever tell you.  Artists, by nature, are doers who thrive on activity and creation.  That's a wonderful thing in my opinion, but successful businesses require someone behind the wheel to be thinking and planning, playing the long game (for your Boardwalk Empire fans out there, think of it this way: every Lucky Luciano needs a Meyer Lanksy).  And playing the long game requires patience.  In Sally's case, if she can't hire a lawyer to walk her through this process, she's going to have to do it herself.  Which means looking at a lot of documents she won't understand.  Sally will end up frustrated and agitated and the business will take off a lot slower than she wants.  But that's okay!  If she has patience and keeps at it (with a little help from Google) these complicated things will eventually seem less complicated.  When I started law school, I had to read each case 3-4 times before I understood what I was reading.  With some practice, I learned how to do it in a fraction of the time.   If Sally spends an hour or so clicking around the USPTO website, eventually it will start to make sense and she won't need to pay a lawyer $400 an hour to do something she can do by herself for free... if only she has some patience with the process. 

(2) Decide what kind of form your business will take.  There's no doubt about it - people take you more seriously if you're a business.  Years ago when I was a young television producer, I went out to pitch a number of TV show and script ideas.   One network executive looked me right in the eye and said "we like you, but we will not do business with you until you incorporate."  A week later, Hammerspace Productions LLC was born. 

If you want to turn your art into a business, then you're going to have to actually turn it into a business; that means deciding what type of business you want to create.  For artrpreneurs, the most obvious choices for business type are sole proprietorships (if you're the only employee) and LLCs, mainly due to the low start-up costs and paperwork.  There's a good article here explaining the difference, but the gist is that with an LLC, you pay income tax for both yourself and the business, but the business shields you from personal liability (if you're sued, they can only come after business assets, not your personal assets).  With a sole proprietorship, you only pay taxes on the profit you make, but you are open to personal liability (meaning someone can sue you for the acts of your business, putting your personal assets at risk, such as your checking and savings accounts, and even your house).  In a sole proprietorship, you generally do not file any documentation with the state, whereas an LLC requires certain documentation to get going (such as a federal EIN, state and federal tax documents, etc).  Check with your state's Secretary of State to find out wha documents they require.

(3) Draft a business plan.  This is a tough thing to ask of artists because it requires them to think about things like taxes and finances and long-term planning.  Hell, even after seven years producing and three years of law school (and dozens of jobs and internships in between) I'm still struggling with it.  But a business plan is extremely necessary for two reasons:  First, it shows outsiders that you're serious and have given your business some thought.  Second, it lays out a path for you and helps you understand steps you need to take to get your business off the ground.  A business plan need not be written in stone.  It should be a living document that grows with the business.  Put in as much or as little detail as you want.  Regardless of whatever form the plan takes, it should impart one clear message: you have thought about this business and know what is required to make it a successful one.

As you build your business, there will be a lot of little things to consider.  How will you accept payment?  How will you market your wares?  Will you pay taxes yearly or quarterly?  All of these things are important on some level, but getting these big decisions made will take some time, so don't rush it.  Have a little patience.  I promise that you (and Sally) will be glad you did.

Have a Happy New Year everyone!