Seeking Advice: Navigating the Legal Terrain of Business

The legal aspects of starting and maintaining a successful business can make or break a company. Law professionals from across the nation have their own secrets to success, some are good and others border on illogical. When listening to the advice of these various attorneys, they all appear to sing a similar anthem of being prepared, doing the appropriate research, and when all else fails, being flexible in this perpetually changing discipline. In delving into the side of starting a business that terrifies me to my core, I sought the advice of practicing attorneys who were sharing their pearls of wisdom via legal podcasts to ease my fears, examine the pitfalls and gain some valuable knowledge on the legal properties of business.

The first podcast appeared on The Un-Billable Hour program and was titled Women Rainmakers & Legal Marketing and featured renowned female attorney Teddy Snyder, Esq. Ms. Snyder can pride herself as a member of the influential legal group, the American Bar Association Women Rainmakers, which aims to assist females in business. Her most poignant argument was the importance of being appropriate. Whether it was marketing, social media tactics, or even using the “gender card”, the situation and audience determines the strategy she exhibits. Taking advantage of the hand you are dealt in the gender arena was an interesting perspective. Being a woman attempting to break into the entertainment industry, I am aware that the “glass ceiling” is still prevalent, but it is encouraging to hear that women in business are being urged to use the fact that they are female to their advantage and as a tool for success. Having women in the courtroom and the boardroom is an effective strategy, when appropriate, that can demonstrate diversity and soften clients’ reputations, which can benefit both men and women. She also discusses utilizing social media such as Twitter and LinkedIn to reach out to younger clientele while ad benches at bus stops are still being employed for an older demographic.

Along the lines of the importance of effectively utilizing social media, attorneys Antigone Peyton and Ernest Svenson discuss the benefits and dangers of conducting business under the ever-watchful and never-forgetful eye of the Internet on the podcast Social Media and Lawsuits on the Lawyer2Lawyer program. They discussed the prevalence of social media in recent court cases and the damaging effects Twitter updates and Facebook posts can have on a person’s future. The truth is, the Internet holds information indefinitely and even when posts are supposedly deleted, they remain in cyberspace and can be retrieved with limited effort. The duo expressed the importance of learning how to use social media as a tool that can further business, gain clientele and share information. It is vital in this day in age that a business sets up and maintains a social media presence but it is equally important to understand how to properly capitalize on this tool and not unknowingly drive a company and its reputation into an inconsequential entity. This “E-Discovery” as they reference, can sidestep lawsuits, maintain clients and protect against defamatory claims, which can translate to the world of entertainment and celebrity. Celebrities have found themselves in hot water by posting defaming comments on their personal pages about individuals, that although were removed, still managed to come back to harm not only the pocketbook but the reputation of the star.

Entertainment attorney Gordon Firemark discusses the challenges of representing unpredictable and demanding superstars in the podcast Entertainment Law & the Challenges of Celebrity on the Lawyer2Lawyer program. Doing business in the entertainment industry surrounded by celebrities, whether in a legal, managerial or production capacity, is not as glamorous as it may seem. Celebrities reside in what Firemark describes as a “fish bowl” where their every movement is being examined. Those that stay out of the limelight are never heard about in the tabloids while others create chaos to feed a demanding ego. They often feel as if they are above the law, which has led to many producers instituting insurance policies to protect a picture from an unstable talent. It is vital when starting a business in the entertainment industry to be aware of the potential hardships concealed by the fantasy. Getting swept up in the glamour and not remaining vigilant to potential scandals that could ruin a celebrity’s reputation can leave a hardworking and faithful employee unemployed.

Working in the entertainment industry requires a lot of patience, the ability to multi-task and always being prepared for anything that comes along. The passion for the industry is what creates the survivors. Coupled with knowledge and a whole lot of bravery, a successful career can be forged. 

Hollywood Rights: Recent Legal Cases in the Film Industry

Creating a brand is a long and arduous process that involves calculated maneuvers and strategic actions. Film has long been a financial gold mine for product developers and advertisers as it is a medium that can spark ideas for new and moneymaking product endeavors in front of an audience of millions. Recent legal controversies concerning the landscape of branding in film raises concerns about how the two can coexist in a mutually beneficial manner and avoid legal dilemmas.

There has been an emergence of court cases involving brands suing studios over unlawful portrayal of their products in films. Eriq Gardner of The Hollywood Reporter discusses this spectacle in his article "Hollywood’s IP Wars: Inside the Fight Over Trademarks". He discusses Anheuser-Busch suing Paramount Studios over the amount of their iconic beer, Budweiser, Denzel Washington consumes in the recent film Flight while the estate of famed author William Faulkner is pursuing legal ramifications over two lines said in Sony Pictures Classics Midnight in Paris. Gardner discusses the basic definitions of Trademark and the appropriate and lawful methods for including brands in film as well as the many ways producers get away with not paying for the use of a product. In short, it is free advertising and in many cases, it is the brand itself that pays to have their items on the big screen. The tides turn however when a negative image comes with the publicity, as in the case of Flight. Recent press concerning airline pilots drinking in abundance before a flight coupled with the iconic brand left Anheuser-Busch concerned with the image their consumers might conjure. I agree with Gardner’s perspective on the over-saturation of trademarks on everything from names (i.e. Beyoncé and Jay-Z’s daughter, Blue Ivy) to the sole of a shoe (i.e. Christian Louboutin). While producers need to be wary and ethical about using brands in their projects, a slippery suing slope is being created and freedom of expression is being tested.

Film phenomenon The Lord of the Rings is also in the news and not due to the anticipated release of The Hobbit. The estate of the author of the novels, J.R.R. Tolkien, is suing the producers of the series due to what they believe is unauthorized use of the iconic name. Matthew Belloni discusses this in his article "Tolkien Estate Sues Warner Bros. Over 'Lord of the Rings' Slot Machines". The estate is arguing that the initial contract forged over a decade ago was for “tangible merchandise” and did not extend to any digital or electronic mediums. An online slot machine game is, according to them, a direct violation of this agreement in addition to allowing Tolkien’s name to be associated with gambling, which his loyal fan base would see as derogatory. This case is a stellar example of why careful consideration and focus on not only the present but also the future is so important. Online games were around 10 years ago and the original contract negotiators should have forecasted to the future and included technology provisions. This oversight could potentially allow them to miss out on millions of dollars as well as an additional $80 million in damages the estate is seeking.

Cult favorite comic creator Stan Lee produced some of the most well recognized characters of all time but who owns them is still undecided. In the article "Stan Lee Media sues Disney: Claims copyrights to Marvel characters", Ted Johnson explains how when Stan Lee transferred the rights to his company along with his beloved characters, a verbal contract with Stan Lee Media may have superseded a written contract with Marvel and therefore left them out of the approximate $2 billion that has since come Marvel’s way. Stan Lee Media believes they have the legal rights over these characters and the profits they procured due to the verbal contract with Lee. This case is a great example of making sure to get everything in writing and entering all deals with a sense of hesitancy and the need to protect ones-self. Stan Lee Media trusted their namesake and a verbal agreement without thinking realistically about protecting themselves, the power of money in negotiation, and the nature of the business. Stan Lee was persuaded by a better deal and his former company was left with no contract, no money and no Spider Man.

There is an increasingly popular trend of needing to put an owner’s stamp on everything and the landscape of cinema is being affected.  We live in a world of brands and labels and film is often times a reflection of our lives, but accuracy is tarnished with blurred out soda cans, fake labels and generic everything. The two facets, brands and movies, need more accuracy, stronger methods, and concrete laws in order to protect themselves without destroying the art of film.

Where is the Limit? : Celebrities peddling the wares of every product in sight

Once upon a time in a Hollywood long, long ago, advertising was a thing of class and strategy. When a movie star or singer attached their name and identity to a product or advertising campaign, it was done articulately with intense consideration. If you wanted to know what product Marilyn Monroe wore in bed, it was expressed with thought and creativity; “well Chanel No. 5, of course”. In today’s society with the rapid emergence and market saturation of reality television and gossip magazines, it seems that celebrities are hawking anything and everything they can get their hands on. The growing popularity of social media forums such as Facebook and Twitter have now made these celebrity endorsed product campaigns increasingly popular. The question that lingers is why is THIS celebrity endorsing THIS product and why should it matter to me? Does Peyton Manning really drive a Buick? And if so, what makes him an expert in luxury automobiles to the point that we should spend thousands of dollars upon his recommendation? In the 1950’s, it was not a far stretch to believe that Ms. Monroe, a sexy and fashionable icon would sleep with nothing more on than a few drops of the equally fashionable and iconic perfume. Well-placed ads in magazines and billboards displayed a rhyme and reason to the product and celebrity pairing. Today however, every time I log onto my Twitter account, I have celebrities posting about how they “Just ate the best (insert awesome product here)! Everyone go buy a (fill in the blank with awesome product)! #ad”. It is sneaky and manipulative and frankly, makes very little sense.

The most current trend is taking these tricky tactics one-step further with celebrities tweeting and posting pictures of themselves in front of well-placed products in order to incite purchasing purely on assumption that they endorse it. No Twitter characters are spent promoting the product. Rebecca Leffler of The Hollywood Reporter explains that this new tactic is designed to bypass long-term contracts and messy connections between products and unpredictable and media fodder celebs. This short-term relationship allows a product line to escape any potential backlash from an artist scandal while still creating a brand linked to a star personality. The stars (no matter their placement on the “ Hot List” hierarchy) are being paid overtly large amounts to link themselves and their 140 characters or Instagram accounts to a product. Christina Rexrode of The Huffington Post reports that Khloe Kardashian collects upwards of $8000 per promoted Tweet, no matter the product, its affiliation, or potential competition to her own brand.

http://www.eurweb.com/2012/05/kim-kardashian-does-she-endorse-any-products-that-arent-dubious/ 

While celebrities have always garnered attention and amazement from the general public allowing companies to sell products and gain instant credibility when linked, there is an apparent lack of cohesion present in today’s celebrity endorsements. There is not enough thought going into why certain products should be promoted by specific celebrities. Furthermore, there is a serious lack of responsibility on the part of stars on which products to endorse. When lawsuits for the Kardashian credit card, Kardashian endorsed Sketchers and Kardashian endorsed Quick Trim all appear, the consumer needs to be aware of the possibility that money, and not quality or even personal usage, is what drew the celebrity to the product.  

“Momagers”: The new breed of agent (Dads welcome!)

I had a recent discussion with a group of friends about what we would do if we were famous. Would we sing or act, what would our image be, and who would be in our entourage? I had never entertained the idea of being famous as my passion has always been behind the camera but I played along. When it came to my entourage, I thought long and hard from a professional standpoint on whom I would want in my hypothetical professional inner circle. My fashion forward best friend would be my personal stylist, my high school ex-boyfriend and recent law school graduate would handle business affairs, and my friend who heads the social media department for a major New York City advertising agency would handle branding and marketing. When I came to who in my life would fill the role of manager, my instinct was honest and alarming. My father! He always has my best interests in mind, is great with connecting and talking to other people, has the business training and education at the highest possible level, is hyper-organized, and is the one who sparked my passion for film and television. Although the other relationships could be complicated and potentially compromised in my imaginary movie star life, the one with the most at stake would be with my father. In the close and important relationship between manager and artist, I could see the potential disasters that could result from employing my parent as my manager.

http://jezebel.com/5707501/how-kris-jenner-may-be-the-richest-reality-star-of-them-all

“Momagers”, and in my purely theoretical scenario “Dadagers”, are the newest breed of managers. New artists breaking into the industry are looking to their closest family members to protect their professional and personal interests while trying to brave an uncertain arena. While in many situations this multi-dimensional relationship could be beneficial, it could also be disastrous to a career and a family. It is a too often relayed story of moms and dads who started with the pure interest of helping their children reach their dreams only to end up exploiting them for the sake of the brand and their own personal fame. There are the cases of fame seeking mothers and fathers making business decisions that promote themselves and solidify their own fortune such as Kris Jenner. Sara Farb of women’s lifestyle website SheKnows discusses the Kardashian family matriarch and the use of her children as a vehicle to her own stardom. Her desire to change her name back to Kardashian in order to link herself with her famous offspring, famously calling her own daughters “fat” and consistently promoting her own QVC line. Then there are the “Momagers” who do neither of the functions incorporated in the title. No protection of personal or professional interests, promotion of a dangerous lifestyle, exploitation of funds and image, and general abandonment as is the in the much publicized example of Dina Lohan and her actress daughter and client, Lindsay. There is also the story of a great manager who neglected the parent-child relationship that is so vital to any young person, a la the stereotypical “stage mom”.

Not all “momagers” and “dadagers” are cautionary tales of ruined careers and strained relationships. There are examples of parents who exhibit genuine interest in their children’s career and well being while still cherishing the role of a parent. Take Jamie Spears, father of pop icon Britney Spears as an example. Radar Online describes that in 2007, he was witness to his daughter suffering a mental and physical breakdown. After seeing his child slip into darkness, he took control. He gained guardianship of Britney and all of her assets from the court and asserted himself as her manager. He did this, not for personal gain, but to save his daughter’s career and ultimately her life. He controlled what appearances she attended, what business decisions she would make and who she kept in her life. His management role holds a fair amount of the responsibility of resurrecting her career and keeping her life on a safe and successful path. The duality of his management philosophy is truly what a manager should strive to attain.

In the end, there are many more stories of successful and loving parent/child-manager/artist relationships then there are negative. I would honestly and completely place the future of my career and life in the hands of my father. I believe that his business savvy would open doors and create opportunities while his unconditional love and support would breed encouragement. I am, however, very glad that my path has led me behind the camera to save me from having to make that decision. 

Negotiating in Hollywood

My boss is a hard-hitting Hollywood executive who has spent the last two decades in boardrooms and on film sets. Every day for him is a negotiation whether it is starting a new business, securing investors, buying a car, or convincing his lovely wife why he needs a new $7,000 video screening monitor. His life has led to many different types of negotiations and has found him on varying sides of the table. He has been bullied, the victor, the mediator, and the loser. More often than not however, he prides himself on being able to listen carefully, communicate effectively and maintain relationships in an industry where it is all about who you know. I sat down with my mentor and asked him about some of his experiences in the negotiating arena and the lessons he has learned along the way.

Q. You have been negotiating for the majority of your career with everyone from movie stars to high-powered studio executives. How do you separate the people from the problem?

A. The industry has changed a lot from when I first started twenty years ago. Emotion had no place in negotiation and the “Suits” were tough. Even when I was first rising up the ladder to an executive level, I had no tolerance for the personal side of an argument. Negotiation has really changed in the last decade or so and as I have moved to manage my own company, I see the importance and benefit of being able to address and respect the emotions of my counterpart.  I now attack every negotiation by first breaking down the problem into individual pieces in order to view them separately. This allows me to look at the facts of the discussion so that emotions can be addressed and removed. There is some degree of sympathy that must remain in even the toughest negotiations in order to keep discussions moving and keep relationships in tact. I approach this with a lot of ‘I understand’ and asking questions.

Q. How do you handle bargaining based on positions as opposed to principles and interests?

A. Logic and research {objective criteria} (Fisher, Ury & Patton, 2011, p. 86-89) are my main weapons when addressing individuals who insist on digging into their position. Logic, reason and questions allow irrationality to be brought to light and positions debunked.

Q. Give an example of how you work towards mutual benefit when negotiating a deal?

A. Establishing a common foundation is key when reaching a mutual agreement. That foundation can be built on new ideas and evaluated until an agreement is reached. In the film industry, middle ground can be hard to find and rampant egos can prevent vision, but in the 13^th hour stuck in a boardroom, a middle ground can usually be seen.

Q. Has anyone ever used “dirty tricks” with you whilst negotiating? How did you react?

A. I have no tolerance for dirty tricks, even in an industry such as Hollywood where they are used daily. My confidence allows me to call someone out on their tactics. I am not opposed to telling someone that I know they are acting unprofessionally and that negotiations will cease until a professional standard is met. I am never afraid to walk out of a negotiation.

Q. Do you develop a Best Alternative to a Negotiated Agreement (BATNA) before you enter a negotiation in order to have that confidence?

A. Before every discussion, I make sure to look at all of my options and courses of action. I am old school Hollywood in that I am always looking for the better deal and know what they are before I agree to anything.

* My boss and subject of this interview requested to remain anonymous.

References

Fisher, R., Ury, W., & Patton, B. (2011). Getting to yes: Negotiating agreement without giving in. 

     New York, NY: Penguin Group