Scamming The Scammers: How To Deal With Ambiguous Spam

My friend Adam is a professional illustrator and has been fending off spam emails like these for most of his professional life:

Now these are obviously scams, and like most of us Adam typically deletes them or sends them to his junk mail folder. But lately they've been getting more sophisticated and harder to spot, and Adam is concerned that more artists like himself may fall for them. Is there anything we can do to fight back?

I don't know how many artists fall for these types of schemes; I like to think most people are savvy enough to see through phishing attempts like this. But if the scams are getting better, they're more likely to convince someone to give up sensitive personal data. In today's political climate no one is looking out for artists. There’s a patchwork of federal and state laws such as the CAN-SPAM Act of 2003 that ostensibly address commercial spam, unlawful solicitation, pornography, and various forms of computer crimes, but these laws are incomplete and often ineffective. The CAN-SPAM Act, which prohibits many types of commercial spam (but permits many others) itself has largely gone unenforced.

So if you wanted to take matters into your own hands, how could you do it? You could:

1. Report the spammers to a law enforcement agency;

2. Contact Anonymous or other white hat hacking groups;

3. Sue them if you can figure out who they are; or

4. Meet the scammers on their home turf and spam 'em right back.

Any of these options would feel satisfying. Turning the tables on your opponent usually is. But without money, time, or cyber-security know-how, most of these probably aren't all that realistic. And as for law enforcement, well as I said above, there's not much incentive these days to pursue Nigerian Prince-like schemes. There's another problem too. These spammers are a dime a dozen. Even if you successfully take one out, several more will spring up like a hydra. And let's not forget that many of them are attacking you from countries like Russia, China, and North Korea. Not exactly places where the U.S. has political capital.

The reality is that the best tool for fighting back against unwanted spam is education. It’s banal and not very satisfying for the vengeance-minded, but it does work… kind of how like comprehensive sex education contributes to lower teen pregnancy rates. So if one of these emails makes it through your spam filter and into your inbox, what should you look out for?

Poor Grammar and Spelling. Not every prospective buyer writes English well, but the wonky grammar in these emails tend to be a dead giveaway that you’re reading something written by a bot and not a person. Some of these emails can be well-written though, so be extra vigilant about that.

Lack of Specificity. Spam emails like the ones above tend to have few details about the buyer and demonstrate little or no knowledge of you and your work. You may get some generic compliments or odd bits of personal information designed to throw you off the scent, like “I saw my wife looking at your website” or “I’m moving to Australia.” But spam tends to largely be devoid of specificity and humanity.

Lack of Common Sense. These emails tend to ask for information that is easily and readily available and takes little common sense to find. As you can see, all three emails above ask Adam for information about purchasing his art... information that’s available on his website, which is easily Googleable. If this person had done enough investigating to find his email address, they certainly would have found his website. Oftentimes, they’ll offer to buy a work without asking the price or how to properly ship the work.

Bad or Incomplete Contact Information. Spam and phishing emails often give strange looking or contradictory email addresses. They rarely provide mailing addresses or phone numbers. In the event they do, the address is often an international one and/or improperly organized (like forgetting to put a state or zip code) and the phone numbers often have an incorrect number of digits or are international numbers. 

Questionable Payment Options. Spammers are usually trying to get personal identifying information or access to your bank or credit accounts. They may ask for your PayPal account or bank information. Periodically, as in the emails above, they’ll offer personal checks or cashiers checks. The offer of a cashiers or bank check is especially curious as those checks are conventionally understood to be backed by a bank. If it’s a bank you’ve never heard of, do some research and find out if it’s legit. 

There are some other things you can look out for as well. It should be said that even if the email contains some of these issues, the buyer could be real, so do some digging - find out who this person is - and use your common sense.

Under no circumstances should you EVER ship the work to the buyer until A) you’re confident it’s a real person and B) payment clears. And if there’s any doubt, just send it right into your junk mail folder and don’t give it a second thought. You’re too busy to spend your time trying to figure out if a buyer is a real person who wants to buy your work.

Superman Can Wait: My Personal Experiences With Not Getting Agreements In Writing

You know, I say "get everything in writing" so often on this blog that I feel like I should have it pre-engraved on my headstone. I may be a broken record about it, but that's only because I've had plenty of first-hand experiences where that information would've come in handy. Here's one such experience that proved so formative, it helped shape my eventual journey from film to the law.

In the summer of 2002, I was a freshly minted RISD grad working in the vault of a major post-production house in New York City. I was hoping that after a few months organizing shelves of film and tape, they would call me up to the big leagues so I could learn to be an assistant editor or color correctionist. It wasn't my dream, but it was proximate enough to my dream that I stuck it out. In late August, my friend Maureen from college called and told me about a job opportunity she knew I couldn't pass up. After graduation, Maureen moved back home to Orange County where she was picking up odd jobs in the film business. A friend of hers - who I'll call Jenny because I can't remember her actual name - had been an assistant editor on Brett Ratner's films, and because Ratner was about to direct the new Superman movie, Jenny was slated to work on it. According to Maureen, Jenny could get me a job as a production assistant on the film, but I had to get my ass to L.A. pronto, since production was ramping up. This meant leaving my steady job and steady girlfriend (who eventually forgave me for moving 3000 miles away and married me) and taking a hell of a risk. Other than Maureen, I didn't know anyone in California. I had no money, no connections, nowhere to stay. I was going out on a limb, and trusting to fate, God, the universe, whatever, that it wouldn't snap beneath me.

With Maureen's help, I called Jenny who put me in touch with the production company. The woman I spoke to there was very encouraging and though she couldn't guarantee I'd be hired, she assured me that once I got to Los Angeles, I could come in for a proper interview and, most likely, get myself a set PA job. A month later, I was in the City of Angels, ready to make my dream come true.

"A job as a production assistant?" you might ask. "That was your dream?" Well, yes. Certainly I had no illusions about where a PA's job was on the totem pole. I knew the majority of my job would be making coffee runs to the nearest Starbucks. But this was a chance to work on a Superman film. SUPERMAN! For those who don't know me, Superman is my jam, particularly Christopher Reeve's iteration. Not enough to name my kid Kal-El or anything, but growing up, he meant a lot to me. He represented the ideal of heroism and goodness in a world that seemed continually bereft of both. He was what I wanted to be. It didn't matter that the script Ratner was working from (written by J.J. Abrams) had leaked online and been universally lambasted. It didn't matter that Ratner had only one good film under his belt and was widely considered a hack. It only mattered that it was Superman and I would be on the same set as him. How could this not all work out?

Oh my friends, how I'd love to tell you the gambit paid off. And if life were more like a movie, it would have. But within weeks of landing in L.A., Ratner was off the project and it reentered development hell. And all of a sudden, I had to make a life for myself in a strange place with no resources. You could say I acted recklessly, that I was dumb. And you'd be right to say that. A smarter man might have waited for an official job offer from Warner Bros, something in writing that I could hold in my hand on that plane ride across the country. But I was young and ambitious and excited to get started before there was even something to get started on. I upended my life without a guarantee of employment, only the vague promise of it.

But do you know how many artists do the very same thing? Sure, most don't move across the country for it, but it's so common for artists to get excited and start working on something before the deal is written down that it can take up anywhere from 50% to 75% of my law practice. So when I tell you to get everything in writing, I say it not just because it's smart business, not just because I see my clients going through it, but because I've lived it and know what can happen if you don't. Getting all your deals in writing protects your interests and holds everyone accountable. It should be an invaluable tool in your arsenal. So learn from my mistakes. If the job is important enough, it can wait until everything is written down. 

Hell or High Water Gets That Most Investigations Are Boring

Because I’m a parent to a small child, I don’t get to the movies as much as I’d like. This means I’m usually months behind on the latest hits. Such is the case with Hell or High Water, last year’s critical darling from director David McKenzie and writer Taylor Sheridan. I missed its theatrical run and all the awards hoopla, but thanks to the magic of premium cable, I was able to watch it 100 times in a row when it premiered on Showtime this week. My verdict? It’s my new favorite movie.

And what’s not to love? Chris Pine’s smoldering steeliness? Ben Foster’s mustache? Enigmatic dialogue dripping with portent? Dammit this movie is great! It’s almost like Sheridan’s films (including Sicario and Wind River, which I’M DYING TO SEE) were created in a lab just to appeal to my sensibilities.

Anyway, on my thirtieth or fortieth rewatch, something stuck out that I thought was worth writing about: the movie nails how slow, methodical, and full of dead-ends the investigative process can be.

The narrative thrust of Hell or High Water is that Toby and Tanner Howard - Pine and Foster, respectively - are trying to save their family ranch from foreclosure the only way they know how: by robbing branches of the very bank that's about to foreclose on them. Toby, an unemployed oil worker, and Tanner, an ex-con, are carrying out early morning heists of branches located in quiet, ramshackle towns like Olney and Archer City because they're less likely to get caught. As their lawyer points out midway through the film, it's a big beautiful middle finger to the banks that have helped level the Texas middle class.

Lawyer

You know, they loaned the least they could. Just enough to keep your mama poor on a guaranteed return. Thought they could swipe her land for $25,000. That's just so arrogant, it makes my teeth hurt. To see you boys pay those bastards back with their own money? Well, if that ain't Texan, I don't know what is. 

Meanwhile, Texas Rangers Marcus Hamilton (Jeff Bridges) and Alberto Parker (Gil Birmingham) are hot on the trail. They spend time interviewing witnesses and gathering evidence as all good cops do, but Marcus realizes the brothers are planning at least one more robbery. So in order to catch them in the act, he picks one branch in Coleman, TX he expects them to rob, and plops himself on a bench right in front of it. Alberto, who Marcus has been mercilessly teasing throughout the film, isn’t happy about it.

Alberto

So, this is your plan? We're just gonna sit here and see if this is the branch they rob next?

Marcus

What would you rather do? You wanna drive 80 miles back to Olney and look for more fingerprints that we ain't gonna find? Or you wanna drive 200 miles back to Lubbock and look at mug shots that don't matter because nobody knows what these sons of bitches look like? Or we can just wait here for them to rob this bank, which is the one thing I'm pretty damn sure they are going to do.

Marcus is right. Sometimes there just aren't any leads to follow. No more interviews to be had. The only thing you can do is wait. At no point in the film (until the climax) does it feel like the Rangers are closing in on the Howard boys. In fact, most of the film it feels like they're hopelessly behind the ball.

After the second robbery, Marcus sits at a table in a diner and chats with some good ol' boys who saw Tanner and Toby rob the bank across the street. There doesn't seem to be any urgency in the way Marcus and Alberto conduct themselves. There's even a little joking back and forth between them and the old-timers. That’s what real investigations look like. It's methodical. One step at a time. Gather the evidence, write it down, move onto the next piece. It's halting and can often feel like wheel-spinning.

I've been an investigator, both as an attorney and as a producer. I've worked on numerous criminal and civil investigations and I can tell you that they are rarely as action-packed and exciting as you see in movies and TV. Most of the time, it’s boring grunt work. In my TV days, I worked on law enforcement shows with both active and retired detectives who all told me the majority of investigations were spent in the office reading documents. A private eye I used to work with told me 90% of his job was sitting in a car waiting for someone to come out of a house. I’ve personally worked on investigations so dull I thought I would literally die of boredom.

Years ago I was interning at the DA’s office in Boston and we were investigating a woman suspected of prescription fraud. Most of my efforts were spent cataloging the hundreds of times she got a prescription and which pharmacies she filled them at. This meant putting all that information into a gigantic Excel spreadsheet. It was painstaking work and it took weeks. But that spreadsheet was key to nailing down her pattern and building a case. We’d never have been able to issue an indictment without it. 

But you know what else? Marcus is also wrong. Turns out, he picked the wrong branch to stake out, a fact he only realizes the next morning when the Howard brothers don’t show up to rob the joint. 

Marcus

I think I got this figured. First two banks, they were Texas Midland banks. All right, there are seven branches altogether. The main branch is in Fort Worth. They're not gonna mess with that. All right? They hit the branch in Olney. They hit the one in Archer City. Then there's the one here.

Alberto

Which they did not hit.

Marcus

Alberto, will you please follow me? Just keep your mouth shut and just listen to what I'm gonna say. There's the one here, then there's the one in Childress. There's the one in Jayton.

Alberto

That one's closed.

Marcus

I know that one's closed! I know that one's closed, Alberto. That's my point. Jayton is closed. That just leaves Post. They're not gonna mess with the bank in Childress, that's a fairly decent-sized town... It means that the only branch that fits the bill is in Post.

Lots of times, you make educated guesses that make sense in the moment but end up being wrong just ‘cuz. In the movie, Marcus figured the brothers would hit the Coleman branch, likely because it was a small one-teller stop, and would draw little attention. And indeed, the scene immediately preceding that showed the brothers arguing over that very issue. But in the harsh light of day, Marcus realized he made the wrong call. Which happens. And then he had to speed across the state to Post, TX to make up for it. 

Investigations aren’t sexy or thrilling or dramatic. There are false starts and bad calls and they’re monotonous and take a long time. And sometimes, they require you to just sit around and wait for something to happen. But if you want to catch your man, sometimes that’s what you gotta do. Commit to the boring stuff no one else wants to do.

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.

When The Movies Get It Right: Probable Cause and David Fincher's Zodiac

[Originally published June 1,  2013. Since today is the 10th Anniversary of the release of this classic crime film, I'm re-upping it. Enjoy!]

When Dirty Harry opened in 1971, it became a box office success and critical darling. It solidified Clint Eastwood's rising star and proved that gritty cop dramas like Bullitt, and The French Connection were legitimate sources of entertainment to a world that grew tired of psychedelic, experimental, 60s era musicals and comedies. The film was very loosely based on the real life (and in 1971, still ongoing) Zodiac murders; likewise, Eastwood's character was based on the police officer assigned to track down the Zodiac, San Francisco Police Inspector David Toschi. Dirty Harry ends with Harry Callahan getting the drop on the film's villain, Scorpio, in a San Francisco junkyard where Eastwood delivers his famous "do you feel lucky" speech. Then he blows Scorpio away with his .357 magnum revolver... a gun so powerful it can carve a hole in solid concrete. Of course the real Zodiac never got to be on the receiving end of such rough justice and Dave Toschi retired in 1983 having never arrested the most famous unknown serial killer in American history.

Dirty Harry has many charms: an iconic antihero, one of the great movie quotes of all time, topical relevancy, and a well-staged, taughtly paced finale. But it was a hit precisely because it allowed the American public to get closure on a national terror that would never resolve. For that same reason, the film left me cold. As you already know, I'm a big supporter of verisimilitude in film. I don't believe that filmmakers need to sacrifice reality on the alter of drama. And while I understand why the filmmakers of Dirty Harry killed off Scorpio, I don't have to tell you that gunning down the bad guy - even if he deserves it - is pretty shoddy police work.

That's why David Fincher's epic crime film Zodiac - a richly detailed chronicle of the Zodiac case - is one of my all-time favorite films. It understands to its very core what good police work is and how good policemen investigate crimes. About halfway through the film, Toschi (played in a career-making turn by Mark Ruffalo), exits a policeman's only screening of Dirty Harry, after years of being stymied in his investigation. Toschi is so torn up about his inability to catch the Zodiac and the movie's unabashed twisting of the truth that he can't watch the whole thing... he just paces and smokes in the lobby. When the movie lets out, the police commissioner approaches him and says, "Dave, that Harry Callahan did a hell of a job closing your case!"

Toschi's response: "Yeah, no need for due process, right?" Zing!

You see, everyone gets due process in this country. Everyone. Regardless of age, race, gender, sexual orientation, national origin, ethnicity, class, or any other category you can devise. Killers, rapists, thieves, and bad men all still get due process because it's written in the Constitution, the highest law of the land. Due process can mean a lot of things, but in the context of a criminal case, it means that you can't be punished without a fair trial and a proper investigation. And to conduct a proper investigation, police need to investigate clues, gather evidence, and then make arrests based on that evidence. That evidence, if properly gathered, catalogued, and analyzed, results in Probable Cause, a foundational element of criminal investigations that allows an officer to make an arrest based on that evidence. You can't make an arrest without Probable Cause and if you do, the suspect will be freed before you can say "kicked off the force."

To drive that point home, Zodiac shows Toschi and his partner Bill Armstrong investigating Arthur Leigh Allen, a very promising candidate for the Zodiac. Allen had been implicated by a former coworker for saying things that later showed up in the Zodiac letters. Allen had the same glove size, boot size, and general appearance as the Zodiac. He owned the same types of guns, had the same military training, lived nearby one of the Zodiac victims, and even owned a Zodiac brand watch with the infamous crosshairs insignia that the Zodiac killer signed his letters with. But despite eliciting high interest from the police, Allen was never arrested. How can that be, you might ask? Because even though there was an abundance of evidence, it was all circumstantial - in other words, the evidence was  highly inconclusive, no matter how suggestive it was of Allen's guilt. In order to justify a probable cause arrest that would stand up to judicial scrutiny (i.e. not get thrown out of court), they needed something much more concrete to tie Allen to the Zodiac killings. That's why the film kept harping on DNA and handwriting samples (the Zodiac hand wrote nearly all of his letters). And when they got both from Allen, they didn't match the Zodiac.  The film takes great pains to show us Toschi and Armstrong gathering evidence, going through the motions of getting a search warrant to Allen's house. They fail because, according to proper 4th Amendment procedures, the evidence to get a search warrant issued had to be based on probable cause, which the issuing judge didn't believe existed. They do finally get the warrant when Allen moves to a different jurisdiction with a judge who is willing to issue the warrant. The scene where they toss Allen's trailer is one of the creepiest scenes in the film.

Toschi and Armstrong believed in Allen's guilt to such a degree that when they're told that Allen's handwriting isn't a match for the Zodiac, they're visibly destroyed. Toschi's career takes a nosedive (at one point, he's suspended from the force after being implicated in the news as the writer of some of the Zodiac letters. He was later exonerated) and Armstrong transfers out of the department. Without the handwriting match, they don't have probable cause, and without probable cause, there's no arrest, and without the arrest, they can't investigate Allen further. The case hits a dead-end. And rightfully so. Allen may have been the killer, but there just wasn't enough evidence to get him in front of a judge.

Do you know what Toschi and Armstrong didn't do? They didn't follow Allen against their Captain's orders. They didn't bug his phone without a warrant. They didn't catch him in the act and gun him down after a dramatic chase.

One of the things that makes Zodiac a great film is that it eschews a lot of the easy choices that screenwriters make when adapting from real events. Often, screenwriters will eliminate, compress, or invent characters and events to suit the narrative structure rather than be truthful to reality. But that didn't happen with Zodiac. The film takes time to explain what probable cause is, why it's important, and why Toschi's and Armstrong's case against Allen dies on the vine without it. Later in the film, when cartoonist Robert Graysmith picks up the investigation on his own, he's instructed by various law enforcement officials, including Toschi, to stay away from the circumstantial evidence and stick with the DNA and handwriting samples because they're concrete and will hold up in court. The rest is just window dressing.

The film treats police procedure with respect, it treats cops and their investigative methods with respect. It doesn't take the easy way out, and it knows that you can still build drama and tension without twisting reality. More than that, it understands why due process is important and why, sometimes, you have to let the bad guy go if you want to honor the Constitution.

Why Wayne Is The Bad Guy In His Own Movie: Wayne's World And Morality Clauses

Wayne’s World premiered 25 years ago this month and remains a high water mark in modern comedy filmmaking, which is why I guess everyone’s been talking about it lately. I love the movie for a lot of reasons: it’s a fully realized concept, unlike a lot of SNL spinoff films, the comedy holds up on repeat viewings, and it clocks in at a lean hour and a half (I don’t know about you but I HATE the modern trend of bloated two and a half hour comedies… if you can’t say it in 90 minutes or less, you can’t say it).

To celebrate its silver anniversary, HBO has been playing it a bunch, so I’ve had the chance to rewatch it. And while the movie is good as ever, something stuck in my craw this time. Wayne (Mike Myers) is kind of the bad guy in his own film. And the skeezy TV producer Benjamin (Rob Lowe) who the film tells us is the villain is actually on the right side of things. And it’s all because of a contract dispute.

Great. Another movie ruined by being a lawyer.

So anyway, a big plot point in the film is Wayne’s reluctance to giving his show’s sponsor, Noah Vanderhoff (Brian Doyle Murray), a weekly guest spot/interview, a concession Wayne agreed to in his contract. Late in the second act, Benjamin and Wayne butt heads over this issue in what is probably one of the best modern comedy bits in recent history:

Eventually, Wayne agrees to conduct the interview with Vanderhoff, but not before writing offensive remarks on his interview cards, humiliating the sponsor on live TV.  Needless to say, Benjamin isn't happy.

Benjamin: You've publicly humiliated the sponsor.

Wayne: Yeah!

Benjamin: You're fired.

Wayne: Fired? For that? Sh'yeah! Right! I'm out of here, and I'm taking my show with me.

Benjamin: We own the show.

Wayne: Aw, bite me.

Dammit Wayne! This is why you always read your contracts! And not just play-read like you did in that scene where Garth talks about sentient baby tongues.

So there’s two things going on here. First, despite Wayne’s incredulity at losing the show, it’s fairly common for a television network to buy the rights to a show they’re producing. If the creator has a lot of clout, the network will sometimes agree to license the rights instead, allowing the creator to retain ownership. But that’s exceedingly rare these days. They’d rather own it outright so they can control the property and all its ancillary revenue streams like VOD, streaming, distribution, merchandising, and spinoffs. The way the film plays it, it feels unfair (and maybe it is - how would Wayne know that giving up the rights to Wayne’s World is typical? It certainly seems that Benjamin took advantage of his inexperience), but it’s the way the business works. Wayne and Garth would’ve been smart to get a lawyer to look over the contract before signing it.

The second is whether Wayne actually breached his contract, warranting his dismissal. This is a hard call since we haven’t read his contract, but we can make some educated guesses based on the average talent agreement. While Wayne fought Benjamin on the Vanderhoff thing, he did eventually relent and conduct the interview. No one can deny that. So what gave Benjamin cause to fire him? My guess is a morality clause.

A morality clause is a provision found in certain types of employment contracts that forbids the employee from engaging in activities that may reflect badly on the employer. A violation of the clause could result in the contract being terminated. In essence, if you act like a dick and embarrass your employer, you could get fired. Word on the street was that Brian Williams was nearly let go from NBC for lying about past news reports (before being shuffled over to MSNBC) due to a morality clause in his agreement. Allegedly, that clause stated:

“If artist commits any act or becomes involved in any situation, or occurrence, which brings artist into public disrepute, contempt, scandal or ridicule, or which justifiably shocks, insults or offends a significant portion of the community, or if publicity is given to any such conduct . . . company shall have the right to terminate.”

In the movie industry, clauses like these go way back to the 1920's and 30's when the studio system wanted to exert control over movie stars’ ability to socialize, marry, and have babies, any of which - in the wrong light - could bring shame to the studio and cause box office losses. How can that be legal, you might ask? Well, it is because most stuff you contract to do is legal (outside of sex and crime), although hard to enforce and very rarely litigated on. I ran a case law search and turned up almost nothing useful for this blog post.

Knowing what kind of person Wayne was, it was likely that Benjamin would’ve inserted a morality clause into his contract. Now I know I said Wayne was wrong up top, but I’m also not saying that Benjamin is secretly the protagonist of the film. He’s definitely a sleaze ball. He manipulated Vanderhoff into sponsoring a show he wasn’t interested in, he took advantage of Wayne’s naiveté about the TV industry and allowed him to sign a contract he didn’t fully understand, and even if he wasn’t explicitly making moves on Cassandra (Tia Carrere), he did know she was dating Wayne and was spending an awful lot of time cozying up to her. 

But when it comes to contracts, the law is pretty clear that Benjamin was in the right. Wayne bore the responsibility to read and understand his contract before he signed it. He then humiliated his bosses openly and brazenly. In other words, he made his choice. And it’s the choice of a new generation.

*Sips Pepsi*

Mmm! Delicious!

Making The Injured Party Whole Again: Punitive Damages in John Wick 2

[Warning: Major spoilers for John Wick: Chapter 2 ahead. Don’t read unless you’ve seen the movie or don’t care about being spoiled.]

At the end of John Wick: Chapter 2, the eponymous hero (Keanu Reeves) strolls into The Continental, the posh assassins-only hotel in downtown Manhattan, points a gun at bad guy Santino D’Antonio (Riccardo Scamarcio) and blows his head off despite the protestations of Winston (Ian McShane), the hotel’s proprietor. This is a violation of the most sacred rule in the underworld: The Continental is safe ground. No assassin may kill another on the premises without paying the ultimate price, a penalty we saw play out at the end of the first film. A severe punishment for the breach of a severe covenant. 

Soon after, Winston summons John to Central Park to mete out the same sentence. John is informed that he is "excommunicado," that he can no longer seek refuge at any Continental hotel, and a $14 million contract has been put on his life. Every professional killer in the world will now be looking for him. Out of respect, John is granted a one hour head start to run. But before leaving, John issues this chilling ultimatum:

"You tell them, whoever comes, I'll kill them. I'll kill them all."

Oh man, it’s so good I just got goosebumps typing that. If this film is any indication, John Wick: Chapter 3 promises to be a highly entertaining bloodbath.

Anyway, while the whole mishegas was playing, I was thinking about contract damages and whether John’s actions, bad as they were, deserved such serious punishment. I know it’s silly to presume traditional contract principles apply in an underworld populated by killers and other bad men, but the Wickverse is steeped in rules and formality and the films go to great lengths to showcase that. Everything is intricately choreographed. The system is built on profound order and relies on respect for that order. It doesn’t matter if you’re a lowly factotum or the famed Baba Yaga, the system comes before the man and everyone must pay what they owe. The contracts may not be written on paper, but they exist, and participation in this world requires that everyone meet their contractual obligation - we can call this one the Implied Covenant of Assassination Forbearance.

So humor me for a bit. John agreed to the rules of The Continental, then blatantly flouted them to exact his revenge on Santino. A kill order is placed on his life in order to appease the system. Is that bounty fair? It’s an important question to ask because fairness is at the heart of calculating damages in contract or tort law. How do we make the injured party whole again? How do we make it so that the injuries they sustain are offset as much as possible?

It can be done monetarily, of course. That’s the way we usually resolve contract disputes in the U.S. Compensatory Damages are financial in nature, the most common of which is what lawyers call Expectation Damages: the damages that are intended to cover what the injured party expected to receive from the contract. 

There are other types of monetary damages too. Consequential Damages, which are paid to the injured party for indirect damages other than contractual loss; Liquidation Damages, which is when the contract states that the breaching party will be liable for a specific amount of money; Nominal Damages, which are awarded when the injured plaintiff doesn't incur a monetary loss but the judge wants to show the winning party was in the right; and Restitution, which is an equitable remedy designed to prevent the breaching party from being unjustly enriched.

In this movie though, the damages aren’t monetary. While money - paid in the form of gold coins - is important to many operators in the Wickverse, to those in power, it's less important than honoring the system (the entire plot hinges on the importance of a blood oath John made). Instead, the damages to be paid = John’s death. But John’s death isn’t just about making The Continental whole again. It’s to send a message. John didn’t just kill some random person, after all; Santino was a member of the shadowy High Table, a cabal of crime lords alluded to throughout the film, but never seen. The High Table presides over the entire Wickverse, and everyone works for or with them to some degree. So the price on John’s head is also about removing a level of chaos that John has introduced into the system. To the powers that be, he must be punished severely enough that it deters future assassins from making the same choices. $14 million and every killer in the world gunning for you sounds like a pretty major deterrent. And to me that sounds an awful lot like Punitive Damages.

According to the New York State Court of Appeals, Punitive Damages are:

“available only in those limited circumstances where it is necessary to deter defendant and others like it from engaging in conduct that may be characterized as ‘gross’ and ‘morally reprehensible,’ and of ‘such wanton dishonesty as to imply a criminal indifference to civil obligations.’”

Punitive Damages come into play when Compensatory Damages aren't enough to make the injured party whole. They're also generally unavailable for contract disputes, but can be applied in contract situations where there’s an overlapping tort claim. So are there any tort claims that can piggyback onto the breach of contract claims The Continental and The High Table might have against John that could result in Punitive Damages? It’s a stretch, but I think there might be.

For The Continental, I would say their best tort claim against John would be Intentional Interference with a Prospective Economic Advantage. And while the elements of that claim differ by state, they generally are:

1. An economic relationship existing between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff,

2. Knowledge by the defendant of the existence of the relationship, 

3. An intentional act on the part of the defendant designed to disrupt the relationship,

4. Actual disruption of the relationship, and

5. Damages to the plaintiff caused by the acts of the defendant.

While proving all these elements isn’t a slam-dunk, I think a good lawyer could make them work. John knew that The Continental was a safe haven for professional killers, traveling there throughout both films to derive its benefits and utilize its unique services (the Sommelier and Tailor sequences in the second film are incredible). John also demonstrates previously existing relationships with various hotel staffers, including friendly bonds with the managers of both the New York and Rome branches. John is also plainly aware that many other assassins use the hotel for the same reason he does: for peace of mind that they won’t get whacked while on the job, as he makes several allusions to this throughout the two films. In fact, in the first film, after he’s attacked in his room by Ms. Perkins, John is able to subdue her and instead of killing her, he asks a fellow assassin named Harry to watch her, then report her to the manager. This is all to say that John clearly knows the hotel derives an economic benefit between itself and its specific customer base. This takes care of the first two elements. 

The third element is John’s execution of Santino on Continental grounds, even as Winston tells him in the moment not to do it and what the repercussions would be if he did. The fourth and fifth elements are a bit harder to prove within the text of the film, since we don’t know if The Continental’s business suffers as a result of John’s actions. However, I think a reasonable argument can be made that business may be jeopardized. The whole benefit to staying at The Continental is that you can’t be killed there. It’s a safe place for everyone regardless of your criminal affiliation. If customers don’t feel safe there, they won’t use the hotel. If they don’t use the hotel, the hotel will lose money and cease to operate. You’d need some documentation to prove that assassins are now staying away from the hotel, but I think you could get there.

Because we've never seen The High Table and don't know the extent or type of its business, it's harder to say what economic harms they can pin on John Wick. I do think they could also benefit from an intentional interference claim though. What little we know of the group indicates that membership is incredibly coveted, and that each member controls certain geographic areas. The unexpected death of a member could result in lost profits from the various rackets they operate. 

Look, obviously no one is taking John to court (though it wouldn't surprise me if an underworld judicial system pops up in the sequel), so I appreciate you humoring me on this little journey. I'm always looking for the legal footholds to latch onto, even if it's not really applicable. That said, everyone in the Wickverse operates out of a certain sense of justice that isn’t wholly divorced from our own. The High Table and The Continental owners certainly feel that having John Wick killed for his transgression is the right thing to do. A fair thing to do. That's what will make them whole again. And if the punishment is harsh, well it's deservingly so. John, on the other hand, has very different ideas about what's fair. And when those two concepts of fairness go head to head in the sequel, I imagine it'll be a bloody good time.

On Making A Good Faith Effort To Get Permisison

Whenever a prospective client tells me they want to use a pre-existing work of art but they couldn't find the artist to ask permission, my first question is, "how hard did you look?" Their responses tells me a lot about them. Is this someone who is genuinely trying but stumped? Or is this a person who isn't interested in doing some hard work? If you've spent any time reading this blog, you know I'm big on getting permission before using someone else's work. First, it's legally much safer for you than relying on fair use. Second, it's just good karma. This is one arena where I'm not an adherent of Grace Hopper's immortal quip, "It is better to beg forgiveness than to ask permission."

You don't want to get sued for copyright infringement, which is why you should always ask permission before using someone else's work. And a cursory effort isn't going to cut it. No, you need to make a "good faith effort." In the law, we generally define that as what a reasonable person would determine is a diligent effort to produce a desired result. In other words, you need to do more than a quick Google search before calling it quits. It's tempting to think that because access to the internet is so ubiquitous, everyone must be online and instantly reachable. Unfortunately that's just not the case. Sometimes artists are hard to find, which means you gotta do some real sleuthing. 

So what does a good faith effort look like in the real world?

1. You have to determine if the rights are still owned by anyone. Generally speaking, art made prior to 1923 is in the public domain and therefore owned by no one. But even if you suspect that's the case, do the research anyway. You don't want to be sued by the estate of a long-dead jazz musician just because you assumed his work was up for grabs.

This chart is a useful tool to get your mind oriented around the issue. You should also use as many research tools as you (and your wallet) feel comfortable with. Google is a good place to start but not the be-all/end-all. There are private copyright search companies you can hire. You can hire a lawyer. You can also do a search through the Copyright Office database (as well as the Writer's Guild if the work is written) to track down ownership over a specific piece of work.

I should note that these tools will only help you determine if a work of art has been registered or published. Any work that hasn't been will require some more creative investigating on your part, I'm afraid.

2. You have to get in touch with the owner. This is where things usually fall apart for many of the people who contact me. Unfortunately there's no guaranteed way to find someone, especially if they don't want to be found. Certainly, you can start with the tools I mentioned above, and if the work is registered somewhere, there's usually some contact information associated with it. But ultimately, you may just have to call around.

I once had a client try to get in touch with a reclusive painter who had virtually no online presence. But through an exhaustive Google search, the client found a gallery in New Mexico that was selling some of that artist's paintings and with a little prodding, got the gallery to put her in touch with the painter.

Sometimes artists have managers or agents and you have to make contact through them instead. Go online and see if you can drum up client lists for some of those agencies. Maybe some of the rights to the work have been sold or licensed to a third party. Contact them and see if they can put you in touch. Maybe the artist is giving a lecture at a local university. Go to the lecture and try to meet him or her in person.

There's a fine line obviously between stalking and diligence and I strongly recommend you hew towards the latter. I don't recommend going to the Whitepages and soliciting them at home since that's pretty creepy and they probably won't respond well to it. But a communiqué sent through appropriate professional channels is okay.

As you can see, there are a lot of options open to you. You might have to get creative, and periodically do a gutcheck to see if what you're doing violates social norms, but these are all strategies you should consider before giving up.

3. Lastly, when you do get in touch, be nice, be friendly, but be direct with your ask. Don't waste their time and don't overstay your welcome. Get what you want, IN WRITING, pay for it, and get to work. There's no guarantee they'll cooperate, but if you act like an entitled brat, that's a surefire way to guarantee they won't.

Ultimately you may not find the artist, or you may find them and get no response. At that point, proceeding with their work becomes a question of risk. Did you make enough of an effort? Does fair use apply to the way you want to use the work? Before you make a judgment call on either of those questions, talk to a lawyer first. Making a good faith effort to find the artist and ask permission can sometimes be hard work, but from my seat it's critical to keeping your karma good and your ass out of court.

Don’t Accuse People of Being Murderers on TV

Ten years ago I was an associate producer on a Court TV show that was investigating wrongful conviction claims. Each episode would center on a man or woman serving life in prison for a murder they say they didn’t commit. During one particular episode, I felt we had really solid circumstantial evidence that the real killer had gotten away. I was so sure this other guy - I’ll call him “Dave” - was the real killer that I had written some voiceover accusing him of it. 

We sent the rough cut with my temp voiceover to our lawyer before passing it to the network for notes. A day later, the lawyer called me and told me to rewrite the voiceover. I didn’t understand. If we had the evidence why couldn’t we say we thought Dave was the guy? He told me that we could talk about the evidence, we could even discuss if other people thought Dave was the real killer, but we couldn’t directly accuse him since we didn’t want him to sue us for libel. I continued to push back and he very patiently told me that I was out of my fucking mind and hell would freeze over before he’d allow the voiceover as I'd written it to get sent to the network.

Of course now I totally get it. 

Last week, CBS aired a mini-series about the 1996 murder of JonBenet Ramsey. What’s shocking is that the investigators openly and brazenly stated their belief that the Ramsey’s son, Burke, 9-years old at the time, was responsible for the murder and that Burke’s parents staged a more elaborate crime scene to protect their son. According to one of the investigators:

“I think Burke was upset about circumstances or Christmas presents, he probably would have been upset about her trying to snag a piece of pineapple. Out of anger, he may have struck her with that flashlight. I think we all agree on that.”

What’s not so shocking is that Ramsey’s attorney, L. Lin Wood, is now threatening to sue CBS for its “lies, misrepresentations, distortions and omissions.” CBS’s response to the threat? “CBS stands by the broadcast and will do so in court.”

Why would CBS allow its on-camera talent to accuse someone of murder? I have a couple of theories.

1. CBS ended the broadcast with a disclaimer that the opinions of the investigators were just opinions on one of a number of possible theories. Maybe they thought the disclaimer was sufficient to protect them.

2. Maybe they felt the case was so well litigated in the public sphere that any accusations against Burke were old hat.

3. Maybe CBS felt that its reputation as a news gathering organization was enough to shield them from liability since the standards for news are different than those for documentaries.

4. Maybe CBS was tired of using hedging language (more on that below) and wanted to come up with something that gave closure to a 20-year old cold case.

5. Maybe they got some bad legal advice.

Whatever the reason, CBS is now staring down the barrel of a defamation lawsuit. In order for the Ramseys to win on a defamation claim, they would have to prove that 1) the statements made against them in the doc were false (i.e. since Burke was never charged, there’s no factual basis for accusing him), that 2) the statements were made with some level of negligence, and 3) the statements caused some actual harm to their character or reputation.

All told, I don’t think this would be hard to prove. But CBS may have an ace up its sleeve, which could account for its confident posturing against Wood. The Ramseys may be private citizens, but they are publicly known for this case; accusations having swirled around them for the last 20 years. CBS is likely to make the argument that they aren’t merely private figures, but instead “limited purpose public figures.” A limited purpose public figure is someone who has become well-known because of a particular issue. It’s not hard to envision a judge or jury buying that argument. Which means if they are indeed limited purpose public figures, the standard for proving defamation is much higher. In that case, they would have to show that CBS allowed false statements about them to be broadcast with actual malice, not negligence, which is typically reserved for private figures only. That is, an actual intent and desire to harm the Ramseys’ reputations further. It’s not an easy bar to meet and if this case goes forward, my money is on CBS A) winning, or B) settling with the Ramseys for a moderate sum.

I’m not sure if I find the initial accusation against Burke or CBS’s stoic attitude more shocking. Is it reckless? Who can say? CBS has been around long enough that I find it hard to believe they'd make a rookie mistake like this. My guess is they know what they’re doing (or at least think they do) and are betting on it working out in their favor. 

But it’s worth pointing out that many lawyers, myself included, prefer hedging language that either couches accusations behind known facts or is so squishy that an accusation can’t be reasonably implied. It’s why all criminal suspects, no matter how guilty they clearly are, are always referred to as “alleged.”  It’s why after a conviction, they are referred to as “convicted.” You’re not accusing anyone of murder by stating that they’re “accused of an alleged crime.” That’s just telling the audience the legal status of a suspect. That’s why saying “X says Y is the killer” is much less likely to get you sued than “I think Y is the killer.” You’re not asserting anything other than the fact that someone else thinks Y is the killer. Yeah it’s a little weasely, but, well, lawyers are sometimes weasely. That’s why I ended up rewriting all that voiceover ten years ago.

I can tell you that I certainly wouldn’t have counseled the producers to end with such a bold proclamation of assumed guilt. I can also tell you that if you produced a true-crime doc and came to me for legal advice, you would have a hell of a time convincing me to allow you to let the show go to air. But CBS has a lot of lawyers. Maybe they know something I don’t. Or maybe they made a stupid mistake. Time will tell. Regardless of how this works out for CBS, my advice to you is pretty simple: even if you have the evidence to prove it, don’t accuse people of being murderers on TV. Leave that to the courts.

Cinema Law: What are the Rights of a Documentary Subject?

This article originally appeared on Moviemaker.com on November 28, 2015. Republished here with permission.

Q: What rights does the subject of a documentary film have if the film falls apart?

As with all things in the law, the answer is: It depends. A documentary subject’s rights are dictated by two interrelated factors: the rights granted by contract with the filmmakers, and the rights granted by law.

Rights Granted by Contract

I feel like I say this so often I should trademark it: You need to put your agreement into writing prior to filming. Written contracts are crucial to any business relationship and are designed to ensure that participants know what they’re supposed to do and are held accountable if they don’t do it. When prospective clients approach me with legal problems, it’s a good bet they’re dealing with an issue that could’ve been avoided if they had put everything on paper first.

A good contract will explain what a documentary subject’s rights and duties, including what he or she can do if the film inexplicably halts production or falls apart in some other fashion. Will he or she have producing and creative input, or simply act as a conduit for storytelling? If it’s the former, will the subject have an ownership stake in the film? Can he or she take control of the production by buying up all the footage and/or hiring a new producing team to finish the film? If it’s the latter, can the subject withdraw the use of his or her likeness and story? What kind of oversight will the subject have to control how he or she is portrayed on camera?

Without a written contract, a lot of these questions are left up for grabs, and a subject’s ability to influence the outcome and direction of the film is limited.

Rights Granted by Law

Even without a written contract, a documentary subject still has options. The law provides a certain amount of built-in defenses to people who don’t want their identities misused in commercial settings. In particular, the law requires filmmakers to get their subjects’ permission to screen the finished product for an audience. Failure to do this means they could be in violation of their subjects’ publicity rights, and that could open them up to defamation and invasion of privacy claims.

Broadly speaking, publicity rights are a subject’s ability to control the commercial use of his or her name, image, likeness, story, or any other specific aspect of identity. The rights and remedies vary state by state, but they’re considered part of an overarching “right of privacy” that’s recognized in all 50 states. Seventeen states (most notably New York and California) have statutes preventing the unauthorized use of a person’s identity. The remaining states protect it through common law.

Smart filmmakers won’t leave this kind of thing to chance. They’ll acquire someone’s life rights in writing, not only to ensure the subject’s cooperation with the production, but also to appease insurance companies, financiers and studios. Insurance companies won’t provide the necessary Errors & Omission (E&O) coverage if there’s a strong likelihood the production was left open to liability by failing to secure these rights. Financiers won’t want to bankroll a film where the main subject’s story isn’t secured, and studios won’t buy a film if there’s a chance the film’s main subject could sue them for defamation and invasion of privacy.

If you’re the subject of a documentary film, this is your leverage over the filmmakers to ensure they don’t go forward with the film without your consent and participation. If the film is simply stalled, leveraging your publicity rights probably won’t get it back up and moving again, but you can at least make sure your story is safe and secure, ready to be granted to a filmmaker who is willing to put it all in writing. As it should be.