IVAN HOFFMAN, B.A., J.D.
As of this writing, I am in my 33rd year of practicing law and over that space, I have learned that the only time I need to worry is when a client says: “Don’t worry.” As part of how I represent a client, I try to create a protective cocoon around the client’s situation so that my client is in complete control over the agenda. However, the phrase “Don’t worry” almost always comes when a client is not intending to follow my advice and usually is followed by one or more of the following phrases:
1. … “because he’s my very best friend.” (can also be “she’s”).And other similar justifications.
2. … “because he’s my brother.” (can also be “she’s my sister,” “cousin” or a wide variety of relatives).
3. … “because he’s my husband.” (can also be “she’s my wife.”).
I’m sure you get the point that “Don’t worry” followed by any of the above or other explanations for the ostensible reasons not to worry are simultaneously both non-sequiturs and oxymorons. In other words, not only does the proffered reason for not worrying not follow logically from the “Don’t worry” but in fact is often the very reason a party should worry. And the reason this is so is because….are you sitting down? ‘cause this may come as a shock..., relationships sometimes break up. (I use the term “sometimes” so that you do not believe I am a misanthrope because if I said “usually” or “always” you would get that misimpression. So use the term “sometimes” as an estimate: your experience may vary.)
And when a relationship breaks up, the party that said “Don’t worry” generally has a lot to worry about. There is nothing like a break up to bring out the worst in people and cause everyone to run to lawyers.
And underlying the above assumptions and statement is the myth that the respective 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 such an 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, without any evidence of any sort to support the idea, that contracts break up business relationships. Completely false. What breaks up business relationships are not contracts. Those are just easy if wrong targets. What breaks up business relationships is the “I thought you said….” stuff that comes from no written agreements or poorly drafted ones including in the latter category a wide variety of “forms” whether copied from books, the Internet or other unknowing parties including other unknowing colleagues as well as those prepared by attorneys who really have no idea what the transaction is about and thus cannot draft an agreement that covers the transaction. It is 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.
In my over 3 decades of experience, contracts preserve relationships, at least well-drafted contracts. 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 break up of relationships can be significantly reduced.
Thus those who continue to live by this myth, as transparently wrong as it and they are, are likely to be sowing the seeds of the destruction of the very relationship they claim to be wanting to protect. How this makes any sense is completely beyond me.
(I will not here dwell on the reasons that other relationships break up but I speculate that the same failure to communicate clearly as discussed above is at the heart of those matters as well.)
Additionally, the copyright law mandates that certain agreements be embodied in a valid, legal writing, let’s call it an 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”:
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. (I am assuming that the creator is not a bona fide employee of yours acting within the course and scope of his or her employment and even then, it is always better to have such a thorough, written and signed agreement).So the idea of “Don’t worry” in terms of not needing a valid, thorough written agreement works absolutely 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 creating party retains all exclusive rights.
Moreover, the same “Don’t worry” also works absolutely 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. Read “A Legal Nightmare: The Unwritten License” and “A Legal Nightmare: The Unwritten License-Further Issues.”
In addition to the above, a party often says: “I’ve been working without a contract 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 contract for years and nothing has ever happened. It does not prove and is not even an indicator of what may happen in the future.
Most often this matter has not been a “problem” in the past because often the projects that this person is involved with are so colossally unsuccessful that they have never been worth anyone’s time to make claims. Or have not appeared on the other person’s “radar,” as they say. But my experience is that the minute there is more than $1.82 on the table, 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 for more claims than he can even imagine and in which event, he loses because he pays all his 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. Read “Set To Fail” and “The Need for Vision.”
Sure, in 99 cases out of 100 all projects will be failures. 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 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.
And should your project become the 1 in 100 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 painfully apparent. Read “Exit Strategies.”
If you are one of those who operate a business whose motto is “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 Ivan Hoffman. All Rights Reserved.