Does size really matter?
Welcome to another edition of Legalish. Today we're going to discuss a hot topic: does size matter?
We're also going to hitch a ride in federal court with Uber and Lyft and then I'll share some thoughts on negotiating for yourself. But first, push the subscribe button and check out our law practice. Mention you found us through Legalish and get a 5% discount on a trademark filing.
Does size matter?
It's a question that can leave people feeling insecure. But one such gentleman decided to test whether he measured up in court. Richard Prince's attorneys argued that size does matter with respect to copyright law.
Richard takes existing Instagram posts and blows them up to several times their original size. Kind of like the screenshot I have in the header here and below as well:
Behold! My art! So imagine that screenshot of my Instagram account just much larger and hung up in a gallery.
Richard Prince edits the comments under the posts but leaves the rest of the piece as a copy of the original Instagram post. In copyright law, whether a piece infringes another's work depends on whether the new piece is considered derivative or transformative.
Richard has earned a reputation as an "appropriation artist." And he's not a stranger to these kinds of lawsuits. The kinds of works he's done since the 1970s generally involve taking another work and hijacking it for his own pieces. Richard relies heavily on a fair use defense when he ends up getting sued.
As a quick note: fair use is only decided in a court. It's not something you can assert pre-litigation without the other party thinking "well, we'll just see about that" because you need the court to weigh in.
So how would you feel if someone took your post on IG and made it a commercial success for themselves? Let me know in the comments!
Read more about Richard Prince's latest legal troubles here:
https://www.courthousenews.com/proof-is-in-the-pixels-for-appropriation-artist-richard-prince/
Uber and Lyft are heading for an über bad time
A federal judge ruled on motions to stay and preliminary injunctions involving ridesharing giants Uber and Lyft. The case hinges on whether Uber and Lyft misclassified employees as contractors under new legislation, AB 5. Many of Uber and Lyft's drivers are, in fact, employees under AB 5.
The ridesharing giants made somewhat confusing arguments. In one line of reasoning, they attempted to argue that AB 5 is inapplicable to them while at the same time arguing for a stay pending the result of an appeal in the 9th Circuit about the constitutionality of the new law. If the law is inapplicable, then how would the results from the 9th moot the current case?
The ridesharing giants tried to take the court of a ride and the court wasn't having it writing:
Defendants are not entitled to an indefinite postponement of their day of reckoning.
Ouch.
With this ruling, more drivers will get employment protections they're entitled to under AB 5.
The wisdom of passing AB 5 into law is a matter hotly debated by people who work in the gig economies. On the one hand, it's nice to be able to moonlight as a driver to make some extra money, particularly in an economic crisis. On the other hand, large tech companies shouldn't be working people to the bone without providing employment benefits required by law.
Leave a comment and let me know what you think.
You can read the court's order here:
https://assets.documentcloud.org/documents/7032764/Judge-Ethan-Schulman-Order-on-Lyft-and-Uber.pdf
Sticking up for yourself in a negotiation.
Our law practice works with a lot of creative and talented people. They make art, photography, engineer solutions to complicated problems and generally run the spectrum of people or groups that would need their intellectual property protected. With people who work in relatively new spaces for creatives—like hosting a podcast, or creating art, or pitching themselves as e-sports talent—they tend to be timid about negotiating for themselves or even retaining an attorney.
The concept of new talent getting taken advantage of isn't new. The recording industry is infamous for signing kids to record labels, taking advantage of them, and then having ludicrous renegotiation fights. I touched a little bit on this in a previous edition about Barstool Sports and the Call Her Daddy podcast.
The gossamer strand that seems to hold people in these new spaces together is fear that because they're in a new space that negotiating for themselves could ruin their ability to keep working in that space. And because these industries are relatively new it's hard to figure out their market worth to figure out what targets should be in the course of negotiation. But the laws and rules that apply to these new spaces are the ones that have existed as a framework in other industries for years. And you shouldn't be afraid to take advantage of those structures and practices in your new industry.
An employer that pays you minimum wage is only doing it because if they could pay you less, they would. They don't care about you or your success. And the same holds true for people that would take your work without asking or sign you up for a contract below market or misclassify you as a contractor when you should be an employee.
Sticking up for yourself and knowing your value is the only way you're going to get what you're worth. And you're not going to get blackballed from your industry of choice for doing something commonplace in other industries like negotiating a better contract and having a clear vision for what you want to do.
Just because your industry is new doesn't mean that laws and best practices in contract negotiation don't apply to it. Write down what you want. If you're not sure about a document ask a lawyer to help interpret it for you. But don't sign up for something terrible or resign yourself to something that makes you feel taken advantage of because you're too afraid of conflict to get compensated or treated right.