DON’T WORRY (Revised 2019)

IVAN HOFFMAN, B.A., J.D.


           I have been practicing law for many decades and over that space, I have learned that the time I need to worry is when someone says: “Don’t worry.”   

          “Don’t worry” followed by any of a wide variety of reasons often based on some form of relationship between the parties is often the very reason a party should worry.  

The Myth 

          And underlying the above statements is the myth that the relationship would somehow be jeopardized by the presentation of a written agreement.  Or that it would be an insult to the other party to be presented with a written agreement, as though the act of doing so represented some manifestation of distrust and in doing so, the presenter would be causing the relationship to change and, in the presenter’s mind, cause the relationship to break up.   

          It is generally thought that written agreements break up business relationships.  That is not my experience.  In my experience, what generally breaks up business relationships are not written agreements but the “I thought you said….” stuff that comes from no written agreements or poorly drafted ones.  Read the numerous articles on my site under the general headings “Precise Contract Drafting” and “A Legal Nightmare: The Unwritten License.”  Uncertainty and ambiguity are the stuff of litigation including appeals and the consequent expenditure on both sides of thousands and thousands of dollars as well as lost productive time, uncertainty about the outcome and often the demise of the project that was the subject of the “Don’t Worry” since if the project is in legal limbo, there is almost never an opportunity to resuscitate it at another time.  My phrase is “help me is generally cheaper than fix me.”  Read “Hoffman-isms: 35 Additional Words That Can Help You Make Money.”  

          In my experience, written agreements can actually work to preserve relationships, at least well-drafted agreements.  When all parties can read what the document says and have a hand in the negotiation of the same, the opportunity for the misunderstandings that result in the breakup of business relationships can be significantly reduced.   

          Thus those who continue to live by the above myth are likely to be sowing the seeds of the ending of the very business relationship they claim to be wanting to protect.  How this makes any sense is completely beyond me.  Read “Set to Fail.” 

The Law 

          Additionally, the copyright law mandates that certain agreements be embodied in a valid, legal writing, let’s call it a written agreement, in order that exclusive rights be transferred from the creator of a copyrightable work to another party.  As it clearly states in “The Fundamental Principle Under the United States Copyright Law” (this idea is so important that this article appears on my home page and all the table of content pages of my site): 

If you are not the actual creator of copyrightable work, then the only way that you can acquire exclusive rights to the creator’s copyrightable work is by having a valid, written, signed and legally sufficient writing transferring some or all of those rights exclusively to you.             

          Moreover, without a valid and signed written agreement, the “acquiring” party probably has no rights to transfer and assign any rights that would have been the subject of that agreement and thus cannot make any deals of any kind regarding the same including but not limited to no foreign deals, no merchandising deals etc.  Read “The Right To Transfer Copyright Licenses.”

          So the idea of “Don’t worry” in terms of not needing a valid, thorough written agreement works contrary to the best interests of the very party who is saying “Don’t worry” if that party is to be the acquiring party since without such a writing, the acquiring party does not acquire exclusive rights.   

          Moreover, the same “Don’t worry” also works contrary to the best interests of the creating party since without a through writing, the status of the rights to the work in question remains significantly in doubt.  And an uncertain situation is to no party’s best interest.  Again, read “A Legal Nightmare: The Unwritten License.” 

Another “Reason” 

          In addition to the above, a party often says: “I’ve been working without a written agreement for years and nothing has ever happened.” 

         This “reason” can also fall within the “Myth” section above since it is almost always offered as some form of “proof” that this approach actually works.  To the contrary, the only thing that this statement proves is that the person has been working without a written agreement for years and nothing has ever happened.  It does not prove and is not even an indicator of what may happen in the future.  

          It may be that this matter has not surfaced in the past because if a project is unsuccessful, it may never have been worth anyone’s time to make claims.  Or the project has not otherwise appeared on the other person’s “radar,” as they say.  But my experience is that the minute the project even has any “smell” of success (or even if it doesn’t) claims become a reality and parties run to attorneys.  So this party has put himself, herself or itself in a lose-lose situation: if the project is a failure, the party loses.  But if the project is a success (or even if it is not), the party may find that the other party ends up making all the money and this party may open itself up to more claims than this party can even imagine and in which event, this party loses because this party pays all this party’s profits to lawyers and/or damages to the offended other party.  What kind of a way is that to run a business?  It seems inherently self-defeating.   

          Sure, in the vast majority of situations a given project will be a failure.  That is not a comment on the merits of any given project but simply the way things seem to be.  But in the one instance where the project becomes successful, both parties lose no matter what the outcome.  For if one party is unhappy in a business relationship, both parties are unhappy.  If one party has claims and seeks legal representation, it causes the other party to do the same.  As I have said many times: It never matters…until it matters…and then…it matters.  Read “10 Words That Can Help You Make Money.” 

          And should your project become the one that is successful and you try to go and exploit the project or sell your company or otherwise deal in and with the project without having the necessary legal paperwork in order…well talk about a time to worry!  At that point the foolishness of this “Don’t Worry” approach will likely become very apparent. 

Conclusion 

          If you are one of those who operate a business with the motto “Don’t Worry,” you may have plenty to worry about.  You just don’t know it yet and by adopting that approach, you are probably closing yourself off to even the possibility of success.   

          I do not understand how that approach makes any sense at all. 

          I know, I know… “Don’t Worry!’ 

Copyright 2006, 2019 Ivan Hoffman.  All Rights Reserved. 

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.  

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author. 



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