When Is A Risk Worth It?

Lawyers are cautious by definition. We want you to make good decisions before you act because that’s how you insulate yourself from lawsuits (and make our jobs easier as well). Personally, I’m a bit less conservative than the average attorney. Maybe it’s my background as an artist, but if the winds are favorable, I’m willing to take risks now and then, and I’m willing to counsel my clients to do the same. 

But there’s a difference between a calculated risk - that is, a risk in which I’ve done my research and understand the consequences of my actions if things don’t go as planned - and a reckless one where I don’t do any of that stuff. I never take reckless risks, or at least I try not to. What’s the difference between the two? I know it may seem like common sense, but it’s not always clear. 

Here’s an example: You find a piece of useful audio for your podcast, but you can’t find the provenance of the piece. What level of risk do you take on to use that clip? 

Calculated Risk: You make a good faith effort to find the owner and request permission. You document your search with emails, phone call logs, and contemporaneous notes to prove you’ve spent time doing the work. If you can’t find the information you’re looking for, you have to make a choice. Use it or not. You discuss your potential use of the material with an attorney and he or she determines whether fair use might apply and whether there’s a lower chance of being sued. After engaging in this work, you ultimately decide to use the material.

Reckless Risk: You do none of the stuff I just mentioned and use it anyway. You don’t attempt to find the owner and gain permission. You don’t research the work to figure out how old it is. You don’t document any attempts to figure out who the owner is or what the provenance of the work might be. 

Now maybe you’ll get lucky and nothing bad will happen. Maybe no one will discover that you infringed their work, or if they do they don’t act on it. Every so often I hear from a client who’s taken a reckless chance and won. But to me, it’s always safer to ask permission than to beg forgiveness. Because at least if you get sued down the road, you can show a judge or jury that you really tried; intent counts for a lot in infringement cases… it’s the difference between being on the hook for a couple thousand dollars and a couple HUNDRED THOUSAND dollars.

As an artist, you have to take risks now and then. It’s just part of the game. But there’s no need to make those risks more dangerous than necessary, especially if you’re a small business owner. Sure, sometimes you might roll the dice and fail, but if you pay attention to the administrative matters, the consequences of your actions will be less dire.