A Legal Minute with Intellectual Property Attorney Paul Lesko and a Giveaway

I should warn you. This next conference speaker has a knack for making one of the most boring subjects in the writing profession, interesting. Yes, copyright law can be interesting, especially when explained by Intellectual Property Attorney Paul Lesko. I’ve known Paul since I began work at Simmons Browder Gianaris Angelides & Barnerd LLC where he manages the firm’s Intellectual Property Department. With more than a decade of intellectual property litigation experience, Paul focuses on helping authors, artists, inventors and small businesses develop and maintain an equal footing in the marketplace by enforcing their copyright, patent and trademark rights against companies that infringe those rights.

Paul has obtained millions of dollars in settlements and verdicts on behalf of his clients and has litigated against some of the world’s largest companies including Google, Apple, Visa and Cisco. He blogs about IP topics and sports memorabilia for the online magazine Cardboard Connection and has provided expert legal analysis in national leading publications including The New York Times, PC World, American Legal Magazine and Chicago Lawyers Magazine.

Having previously attended a presentation given by Paul at a Saturday Writers meeting last year, I was ecstatic when I found out Tricia had asked him to present during the “Write Time! Write Place! Write Now!” Writing Conference.  His breakout session is called, “The Author’s Guide to Copyright and Fair Use.” He will review common questions have regarding copyrights, infringement, and the fair use doctrine. The session will conclude with a Q&A during which Paul will address individual copyright questions from the audience.

Sarah: Paul, thanks for taking the time to preview what you’ll be talking about during the Missouri Writers Guild Conference this spring.

Paul: Thanks for having me. I enjoy speaking about copyright issues, and especially enjoy talking with those who work in this industry.

Sarah: First, you’ve given a similar presentation at Saturday Writers, the St. Charles chapter of the guild. For anyone who attended, will you be covering anything new and what?

Paul: I definitely will. I had a great time meeting with the Saturday Writers, discussing how writers can best protect their works from infringers and also protect themselves from accusations of copyright infringement. Since then, there have been a lot of discussions about changes to the Copyright Statute through proposed legislation like SOPA and PIPA. So, this time I also want to explain how future legislative changes may affect the writing industry.

Sarah: Who will benefit from attending your breakout session?

Paul: Anyone involved in the writing industry. Writers will be able to take home a number of lessons on how to protect their work and themselves. Agents will be better able to spot issues their clients may need to deal with, thereby making those agents more valuable to their clients . And publishers also face potential exposure from their authors, so knowing how to identify and deal with some common concerns can only help them be more successful.

Sarah: What is the answer to the most common question you get asked by writers?

Paul: The most common question-type I hear from writers runs along the lines of “How much of another’s work can I use?” Whether it’s a desire to use song lyrics to start a chapter, borrow quotes from another’s webpage or utilize a story a friend told you, the answer is always the same: “It depends.” (Laughs). I’m sure that’s not the answer you wanted, but every instance is so fact specific that no general answer can cover every situation…other than if you develop your own ideas, your own song lyrics and don’t borrow quotes or stories from anyone else, only then can you be reasonably sure of being bulletproof.

Sarah: What does a writer have to do to make sure her work is protected by copyright?

Paul: Once a writer writes or types her work, it’s protected by copyright, so that’s easy. In order to bring suit against a potential infringer, the copyright needs to be registered with the Copyright Office, which is a little more work (basically filling out a form, sending in a sample and enclosing the filing fee).

Sarah: What if that work is posted online, say on a blog or a newsmagazine? Does that make a difference?

Paul: It does not. Whatever form it’s in, so long as it is in a “tangible medium,” it’s protected.

Sarah: What is the difference between plagiarism and copyright infringement?

Paul: There’s no legal distinction between the two, but plagiarism to me implies an outright, willful copier who is trying to pass another’s work off as his or her own. Copyright infringement is broader, and covers situations smaller than plagiarism such as illegally downloading MP3s or videos for one’s own personal use or having a character in a book singing another’s song lyrics without permission of the song writer.

Sarah: There’s a lot of advice about copyright law on the Internet. How do I know if it’s credible or not?

Paul: It’s safest to assume that nothing on the Internet is credible not because the author is wrong or intends to mislead you, but because copyright issues a writer may face likely are unique to that author. Since there is no catch-all that covers every situation, it’s best if you need legal advice, speak with a lawyer.

Sarah: What is fair use? More specifically, why should writers care about it?

Paul: The Fair Use Doctrine is a defense that protects writers and artists from certain allegations of copyright infringement. For example, it may be a fair use for a news station to run a picture of a copyrighted painting if there is a news story about that painting. Or for an art history professor to show his art history class a picture of that same copyrighted painting. Writers should care about fair use for two reasons: 1) it may provide a defense against accusations of copyright infringement and 2) sometimes, others may be permitted to use the writer’s copyrighted work. Whether the fair use defense is available though is sometimes difficult to determine, so, as always, it’s best to get a lawyer to discuss that writer’s specific situation.

Sarah: Say, I’m writing a memoir and it gets published. Can other people, who come off not looking so good in the book, sue me?

Paul: Technically, this is not a copyright situation, but focuses on libel. Although the analysis is a little more complex, truth is normally an absolute defense to accusations of libel. The problem is, anyone can sue anyone for anything, so although a writer should be legally protected from a claim of libel, that does not mean the other party won’t file a frivolous lawsuit on the matter…especially when it concerns that person’s reputation. So, there are two things to think about: 1) are you legally protected and 2) what are the chances that the other person will fly off the handle, sue you anyway and subject you to a time-consuming headache until you can win at court?

Sarah: If I think I have a potential copyright or similar intellectual property case, how does that even work? I mean, isn’t it expensive to file lawsuits and hire an attorney?

Paul: If you can prove that someone accessed your work, and then copied it without your permission, you have a claim against that person for copyright infringement. Most lawyers bill for copyright infringement actions by the hour, so copyright suits can be expensive. Some law firms, like my firm, handle copyright infringement actions on a contingent fee basis where attorney fees only are paid out of settlements or verdicts received. To be accepted as a contingent fee cases, however, those cases need to be very strong.

Sarah: Finally, you write a regular legal column for Cardboard Connection. Do you write anything else?

Paul: I have two novels that I’ve been working on that are 75 percent complete, but, they’ve been 75 percent complete for years now no matter how many changes I make. (Laughs). The one I spend the most time on is called Gastric Bypass which is a dark comedy about an extremist group called Gastric Bypass that wages a war against the obese by kidnapping them and, against their will, giving them gastric bypasses. Since I’m a lawyer, I tell the story through deposition and trial transcripts starting from the founding of the group, until their trial. I hope to finish it prior to the convention, but family life with two boys under the age of five and a full caseload at the office will likely ensure it will still be 75% done by then.

Sarah: Paul, thank you for taking the time to talk about copyright issues writers commonly face. I’m looking forward to hearing you present again.

To learn more about Paul, you can read his articles at Cardboard Connection, visit his Bio on the Simmons Firm website, or follow him on Twitter @Paul_Lesko.

Please comment below, and you’ll be entered into a drawing to win a half hour consultation with Paul where you can pick his brain on copyrights. Sharing this blog via Twitter, Facebook, or a blog post earns you additional chances to win. Just make sure to mention that in your comment. 

Don’t forget to register. If you’ve learned something from reading this blog, please consider attending the 2012 Missouri Writers Guild Annual writing conference. We would love to see you in April!

Click here to register for the “Write Time! Write Place! Write Now!” Conference.