Christmas With You is the Best

Photo by ::: mindgraph :::, some rights reserved

The nights are drawing in, I’m wrapped up by the fireside in Hotshot Mansions, and the tree lights sparkle from the hall.  I have two whole weeks off from paid legal employment, and my days now consist of a meander through my home town, some low key present wrapping accompanied by Christmas tunes, and a session in the local pub with some old school friends in the evening.

In amongst all of this I have noticed the expansion of a familial phenomenon.

Christmas is, as we’re often told by advertisers, a time for families to get together and enjoy each other’s company. What many of them don’t mention (but which my law school ethics teacher did) is that when lawyers spend time with their family it is only a matter of time before uncle Jimmy mentions “suing that bastard after that accident I had” or cousin Timmy mentions he’s being “evicted by my tight landlord”. Both of these lead to encouraging smiles and a “would you mind taking a look at this?”

In fact, I’ve only attended two family get togethers this year and already I’ve picked up three “new instructions” – that’s three more than I managed in an entire two years in private practice with its merry-go-round of business development shindigs.

These sorts of familial instructions come with their own baggage of issues (much like the family itself when they descend on Christmas Eve, I suppose). Here are a few I’ve observed so far, from the practical to the boring, ethical and technical.

1. I’m sorry, Auntie, but you don’t actually have a case

Yes Auntie Mo, it is terrible that Mavis from number 35 said that about you, and that terrible things have been implied about your fruitcake in the parish magazine, and I know the newspapers have been talking about how London is the libel capital of the world but that doesn’t mean you can sue her “for every penny she’s got”.

I think these situations are a little less harmless than their professional equivalent.  It’s much easier to convince a septuagenarian relative that their understanding of the law is, shall we say, limited, than it is to convince legal counsel at a FTSE 100 company that he doesn’t know what he’s talking about.

Auntie Mo is more likely to back down in these situations, but you should be prepared (after the fifth or sixth glass of sherry) for her to walk past you again and mutter “honestly, five years a law school and he can’t even sue a little old lady…” and then later “so, Hotshot, how come you’re not married yet” – although the latter is not really relevant to this post…

2. I know nothing about this

As I may have mentioned above, there is no suggestion that my family members are jurists on a level with Sir Edward Coke, David Hume or Justinian, but there is a significant suggestion that my legal expertise is somewhat limited.  I like to think that I have a ready grasp of the key principles of contract and commercial law, a deeper understanding of intellectual property law, and a rapidly fading memory of some of the finer points of everything else covered in a four year LLB.  One of my biggest problems in this area is the fact that I am technically qualified to practice only Scots law, and that while I trained with an English law firm and now work almost exclusively under English law, I haven’t got round to acquiring dual qualification (mainly due to a reluctance to devote much time to studying English property law and “equity” (eh?) in any great detail).

This is completely lost on my family.  I think in general they believe that the existence of a separate Scottish jurisdiction is an esotericism of lawyers, created to provide an easy excuse to get out of helping family members resolve their (often petty) legal problems.  I haven’t raised this with Alec Salmond yet, but I’m sure it could provide an entire suite of pro-independence posters and materials.

As a result of both of these limitations on my professional expertise, I am not best placed to advise on small claims procedure in the County Courts, or the intricacies of English landlord and tenant law (frankly I still can’t get over this bizarre freehold/leasehold thing that goes on down here).

3. Are you being honest with me?

Now this is an issue in private practice too.  The client always believes that they are right, and in their mind, only goes to a lawyer for a high-level validation of their strongly held belief.  However, the smaller and more personal the claim, the more the righteous indignation is magnified, so by the time uncle Dave has had his eighth pint of bitter, he is blaming all the ills of society on the “stupid bastard” that reversed into him in the Waitrose car park eight years ago.  This will include such claims as: “he admitted it was completely his fault”; “yes there were about a dozen witnesses”; “he’d clearly had a couple”; and “I think he might have abducted the woman in the passenger seat”.

At this point, Dave is convinced that with a sprinkle of legal wordsmithery, provided by his “favourite nephew”, he will rise unchallenged through the County Courts, claim enough compensation to retire on, and emerge as a champion of the Daily Mail’s next campaign to end the grubby reality of Broken Britain through the medium of small claims car parking disputes.

The fact that it was Dave who may have had a couple, that it was he who admitted liability, and that his long-suffering wife Sybil was in the car largely against her wishes, doesn’t even cross his mind.

4. Professional Ethics

Professional ethics wasn’t discussed much on my journey through law school.  The class was (hilariously) optional, as if to play up to all those jokes about lawyers not having any, and seemed generally designed to scare us off ever even sneezing without prior written approval from the firm’s senior partner, money-laundering compliance partner and law society liaison officer.  As a result, I have long been imbued with a fear of even certifying copies of my friend’s passports in case I end up being extradited to Singapore to have my hands cut off.  The idea then of going behind by employer’s back and ‘dabbling’ in a world of law that has so far evaded my grasp fills me with dread.  As a lawyer, I am pre-disposed to frame all my advice, and social conversational gambits with a plethora of disclaimers, and this does not go down well over mince pies and champagne.  My uncle’s response to my claim that he couldn’t possibly pay me for my help (not advice) as this would make it look like I was holding myself out as some sort of expert was “excellent, so you’ll represent me for free then?”.

Frankly, my Christmas holiday so far has left me in a state of constant anxiety, and each day ends with me rocking to sleep clutching my practising certificate to my chest and waiting from a knock at the door from the Law Society of Scotland.  And that’s before I’ve even provided the wording for a short letter before action.

5. This is supposed to be my holiday

Finally, I saved up my holiday entitlement for the year so that I could enjoy a romantic Christmas by the fireside.  I love this time of year and I consistently see my home town through rose-tinted and snow-blanched glasses even though the reality is more blood-spattered and vomit-blanched glass.  This was my time to forget about the trials and tribulations of work and the legal profession (aside from a quick cease and desist letter on behalf of The Santa Claus Group).  As a result, I become a little bit grouchy when faced with the prospect of boning up on the intricacies of English landlord and tenant law or the small claims procedure of the County Courts.

I don’t spend my time on the pre-Christmas social scene asking my uncle Frederick to pull out my teeth, or my cousin Hermione to take a look at my sick kittens, so why should I be at the beck and call of a world of convoluted legal issues that have arisen amongst my family members in the last few years?

Names have been changed, and claims grossly exaggerated to protect the innocent (i.e. me) and for once all photos (apart from the title picture are mine).


Mythbusters: That’s Just Not Fair (Use)

Photo by Sam Teigen, some rights reserved.

Following on from last month’s woo-fest and my recent twitter rant about solicitors who use the terms ‘copyright’ and ‘trade mark’ as if they were interchangeable, the following is an explanation of some common copyright myths.

Consider it a public service announcement brought to you by In-House Hotshot.

Myth 1: You need to register your work before copyright applies.

Copyright is a right that arises automatically upon the creation of a qualifying work. In the uk (and Berne convention countries) no act is required to crystallise your copyright.

Myth 2: If there’s no copyright notice on your work it’s not protected.

Just as there is no requirement for registration of your copyright, there is no requirement that you put any form of notice on your work.

It is however good practice to include (c) [year of creation] [author’s name] on your work as evidence of your claim to copyright in the material. This will be useful in the event of any claim of infringement and also to put any potential infringer on notice that you claim copyright in the work.

Myth 3: Posting yourself a copy of your work will prove you own the copyright in it.

The so-called poor man’s copyright has little or no value. While an unopened envelope (with a postmark) may be considered evidence that you have posted yourself a copy of the material before that date it does not provide any evidence that you created the work and certainly provides no greater evidence than the use of a copyright notice.

There is obviously significant scope for this method to be abused and in any case computer files and emails etc provide a much more useful time stamp.

Myth 4: Copyright subsists in the name of celebrities. OR My business name is protected by copyright.

Copyright will only subsist in a work that demonstrates significant skill or work in its creation. As such, there is no copyright in single words or short phrases (and if there were no one else would be allowed to use that phrase anywhere). Similarly there is no copyright in a person or business’s name although it maybe a valid trade mark.

Myth 5: If I found it online copyright does not apply.

This is a common misconception arising from a misconstruing of ‘public domain’. If a work is in the public domain then copyright does not apply to it. However public domain does not just mean that the work is available to the public. Work has to be deliberately placed in the public domain or allowed to pass into the public domain. As a result articles on the internet, Google image search results and mp3s online will most likely be protected by copyright.

Myth 6: Most infringement can be excused under the principle of fair use.

Fair use is a principle of American copyright law that allows limited use of copyright material without the permission of the owner. Such use may include commentary, criticism, news reporting or research.

The sharper-eyed of my readers will have noticed that I described fair use as a principle of American law. It does not apply in the UK.

UK copyright law does have a principle of ‘fair dealing’ which sounds confusingly similar to fair use but is much less generous and only applies for non-commercial research, criticism or review purposes.

Just because you think your use of copyrighted material is fair does not mean you are not infringing the rights of the creator.

Myth 7: If I make three changes to the work I am not infringing.

Copyright is infringed where a ‘substantive part’ of a copyright protected work is reproduced without the permission of the copyright owner. What constitutes a substantive part will depend entirely on the size of the original work and the circumstances of the reproduction. As a result it is not possible to rely on a one size fits all rule as to how many changes you should make to avoid infringement.

I hope that’s helped. There are plenty more copyright myths so I expect to expand on this in the future as well as looking at some trade mark and patent myths as well.

Thanks to Brett (@BrettTechLawyer), Katherine (@whatKatydidnext) and Barbara (@filemot) for suggestions of some myths to bust!