More on Literary Characters and Copyright Law

CC_No_11_Don_Quixote3This blog has seen an extended discussion on the topic of literary characters and copyright law.  It began with my post here, discussing the ongoing court case brought by J.D. Salinger over the unauthorized use of his Holden Caulfield character from The Catcher in the Rye, (Salinger v. Colting) and using a comparison to the novel Don Quixote to argue that copyright protection for literary characters should be eliminated.  It was followed by Professor Bruce Boyden’s post here, defending the law’s grant of exclusive control over literary characters to the original author because it provides an economic incentive to the creative process.  Professor Gordon Hylton responded with a post here, supporting my argument against copyright protection for literary characters by pointing to the post-publication history of Edward Bellamy’s popular novel Looking Backward.  The discussion continued with Professor David Papke’s suggestion, in a post here, that the resolution of this debate may depend upon how we define what it means to be an “author,” and whether authorship is an individual act of creation or the collective act of an entire society.  Finally, Professor Rick Esenberg contributed this post, discussing the crucial role of the reader in attributing meaning to the text, and implicitly questioning the idea that any author can control how his creation is used.

 I would like to add to this discussion by sharing the comments of my brother, Jim Fallone, on the foregoing debate.  I am aware, of course, of the popular movie Adaptation, “co-written” by screenwriter Charlie Kaufman and his fictitious brother Donald.  In that movie, Charlie Kaufman takes the screenwriting process itself as the film’s subject, and plays with post-modern theories of authorship.  Let me assure you that, unlike Donald Kaufman, Jim Fallone is a real person.  Moreover, Jim Fallone has over 20 years of experience as an executive in the publishing industry, currently with Andrews McMeel Publishing in Kansas City, and is a published illustrator.  While this experience makes him dependent upon copyright law for his meal ticket, it also gives him some valuable insights into the creation and marketing of literary characters.

What follows, then, are the comments of Jim Fallone:

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Lawyers & Social Networking

computer_with_scales3An article in today’s New York Times talks about what can happen when lawyers open up online.  The article begins with the story of Sean Conway.  Attorney Conway took to his blog to state exactly how angry he was with a Fort Lauderdale judge.  He said she was an “Evil, Unfair Witch.”  But because Conway is a lawyer, his online ranting resulted his being reprimanded and fined by the Florida bar.

Of course, lawyers aren’t the only ones whose livelihood is affected by their online postings.  There’s this, and this, and this.  Having one’s online activity be the basis of dismissal has increased so much that a new phrase – “Facebook fired” – has entered our lexicon. 

But being a lawyer means something more.  Lawyers have long been held to a higher standard of conduct than other members of society.  As the New York Times article points out, your “freedom to gripe is limited by codes of conduct.”  Thus, criticizing the court or revealing client details online – even if the lawyer thinks she’s veiled the true subject – can cause trouble for a lawyer because she runs the risk of violating rules of professional responsibility.

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On What Lawyers Really Do

customer-service2Client service is not a class taught in law schools, but don’t forget that client service is at the heart of what we do as lawyers. Our mandate as attorneys is to zealously (and ethically, of course) represent our clients. So whatever area of the law you are in or going into, don’t forget that you are less a litigator, for example, than a service provider. After all, no client, no case to litigate, or will to draft, or deal to do.

Truth be told, it’s not easy to keep client service in mind.  We think of ourselves as practitioners of the law–and we are–and we often want to do things in the way we see as “right” or interesting or novel. When I say “right” I’m talking about your professional opinion about the way things ought to be done, not an ethical or moral rectitude. But sometimes our clients don’t want or need things done the way you or I think they ought to be done. Sometimes clients want interesting or novel thinking, and sometimes they don’t. That’s when it can be difficult to remember that your job is to serve your client and not simply to practice law by your own lights.

Consider a poignant example. I recently sat in a room with one of my company’s outside counsel who is handling a large litigation for us.  She enjoyed telling me the story about defending one of her first big cases in which damages to her client could have been in the range of several tens of millions of dollars. The case settled for closer to ten million, and her client celebrated the result. She thought the client had gone insane: who celebrates losing ten million dollars, and not clearing their good name in court to boot?  But her feelings demonstrate the disconnect between a then-less-seasoned attorney and her client. She wanted to try the case and score a “win”; the client wanted to minimize risk and expense, and believed that settling the case for a fraction of the potential damages was the way to achieve that goal.  She did not have a good understanding of her client’s view of the world, nor of her client’s goals at the time.  If she had, she would have celebrated the “win” with the client rather than doubting the client’s sanity.

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