RE: Asking Permission (was Re: trademark question)

On Monday, September 30, 2002 2:56 PM, Kevin Grierson [SMTP:kgrierson[_at_]wilsav.com] wrote:
>
>
> Kevin W. Grierson
> Willcox & Savage, P.C.
> 1800 Bank of America Center
> One Commercial Place
> Norfolk, Virginia 23510
>
> mailto:kgrierson[_at_]wilsav.com
> ph: 757/628-5603 fx: 757/628-5566
> http://www.wilsav.com
>
> >>> edward[_at_]copyweb.co.uk 09/27/02 03:40AM >>>
> >Isn't "always ask a lawyer before asking the rightsholder" just as
> >dangerous as "always ask the rightsholder"- except it ends up benefiting
> >lawyers rather than artists and authors?
>
> Unless you assume that the lawyers are all in league with the rights
holder, I fail to see what your point is. Why is it "dangerous" to let an attorney know of your plans, especially when the attorney is bound by attorney-client privilege not to reveal what you've told them?

Perhaps I should reframe the point. The discussion centred on whether the appropriate advice from the list should be "if in doubt, ask permission"; to which a number of contributors advised that asking permission for clear-cut fair use cases could establish custom and practice and undermine fair use. A divergent discussion has considered whether this is true either in legal theory or in actual practice.

You advised, instead, effectively, "if in doubt, ask a lawyer". It is, indeed, often the best thing to do - but I question whether it is appropriate if the value of the purported infringement is very small, as it will tend to be in many cases of doubt under fair use. Unless pro bono advice is available, the user may be put to greater expense in lawyers' fees than would be incurred in permission fees - especially since it is my experience that rightsholders will frequently give permission without charge to those users who have shown sufficient respect to copyright to have taken the trouble to ask (I suspect this happens rather more often than lawyers give pro bono advice). And generally, if money is to change hands, I think it better on the whole that it should go to authors and artists than to lawyers, or for that matter, copyright consultants.

> Put another way, isn't it "less dangerous" to consult an attorney
beforehand than to try to find out after you get sued whether or not you're in the right?
>
> >Especially as most lawyers have one eye on possible negligence suits
when
> >framing their advice....
>
> I still fail to see your point. A litigator defending you from an
infringement suit won't have the same need to couch his advice with disclaimers, perhaps, but then you'll probably be spending a lot more money on him as well (and maybe spending money on the other party's attorney's fees and costs, too).
>

Again in my experience it is unusual to find, in borderline cases, any professional adviser willing to offer unequivocal advice. Perhaps I am being unduly cynical, but legal advice can be a very expensive source of equivocation..

Edward Barrow
New Media Copyright Consultant
http://www.copyweb.co.uk/
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