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lilfluffSome of you may have heard me say in person in the past that if someone says, "All or nothing!" I don't feel much sympathy for them when they usually end up with nothing.
I've been having an interesting time reading about just such a case recently. Identifying details left out to protect theguilty nothingists. Short version, Party A discovered that Party B had published some of their work without permission, worse than that after the predecessor Party B (there had been a change of ownership) had in fact rejected the work. But Party A is feeling kindly, so they say, "Hey, since you're just taking a few pre-publication pages of background notes and putting them for free on a website, how about you just acknowledge the authorship? Heck do that and I'll do a quick revision so it's not quite so embarrassingly first draft." To which Party B initially agreed.
All is happy, yes? For a few years, yes. Then Party B apparently decided that was a bad deal and pulled the work. Oh well, nothing said they had to use it. Only, oops, then they start letting people with authority bad mouth Party A. Then they reject that the deal made with Party A was valid. Wait? Is that smart? Wasn't that all that saved Party B was getting in trouble for publishing someone else's work without permission? Ooh, then Party B starts claiming, "No, really, Party A is the pirate, trust us!" Wait, isn't that defamation? Sounds like it's a good thing Party C decides to voluntarily step in and offer to mediate.
And that's where the all or nothing comes in. Party A decides he's still willing to offer a much-to-kind deal. He'll drop all claims of defamation and copyright violation without even asking for a single penny, just two concessions. First, stop defaming him and acknowledge that he hadn't done anything wrong. Oh hey, Party B thinks that sounds good. Party B is in fact alleged to be shocked that Party A is willing to settle without asking for any money. Ah, but the second thing? Well, Party A figures after being publicly harassed that he ought to get something slightly better than the original deal. So hey, this one minor character, who before Party A's involvement was nothing more than a name on a list, well Party A had invested time and emotion into that character, so let him had that. No money, just an end to the abuse and a fictional character that Party B had never shown any sign of wanting to make any use of. Oh. Well, apparently for Party B that was beyond the pale. Sorry, see you in court Party A.
No the part in the title about, "Well don't come crying to me?" It seems that Party B would have done quite well to have either not reneged on the original agreement or to have accepted the, "No money, just let me have this minor character as mine." Because part of the process of going to court involves digging through records. Which resulted in Party A rediscovering the original terms his work had been offered under. Terms which were not Work for Hire and were not "We'll buy it as an individual product", but terms that said, "We'll be picky because if we accept your work we'll be making it a part of our greater product."
Oops. Now, most likely that would have been written away in the final contract if the original submission hadn't been rejected. But that's damaging since if the original deal was, "If we take it, it becomes part of the larger whole", then the law says Party A is a co-copyright holder to that larger whole. Note, not co-copyright holder to his submission, but the whole product. At which point the law doesn't much care what percentage you put into the whole, a part owner is apparently just that, a part owner. Oopsie? Suddenly not playing nice sounds much more expensive.
The thing is, it's not gone to court. Even if the court rules in favor of Party B, this is alot of hassle, time, and money that didn't need to be lost. Really, one minor character that previously was nothing more than a name on a list is enough to effectively say, "Talk to the hand, not even going to make a counter offer, yeah sure you'll take us to court. We dare ya to do it."
Well, as I've said for some years now, when you say all or nothing it seems to me history usually doesn't say you'll get the all side of the equation. You might not get nothing, but it seems you usually get a heck of a worse deal than you were offered in the first place. And who knows, maybe when it reaches court it will turn out Party A was full of hot air and Party B has Perry Mason as a lawyer. But if that isn't the case I suspect someone is going to regret deciding to go for all or nothing.
(Edit: Oh, and as a note, quite intentionally not naming names as I'm not really interested in arguing the merits of that particular suit so much as commenting on my philosophy regarding people taking all-or-nothing positions.)
I've been having an interesting time reading about just such a case recently. Identifying details left out to protect the
All is happy, yes? For a few years, yes. Then Party B apparently decided that was a bad deal and pulled the work. Oh well, nothing said they had to use it. Only, oops, then they start letting people with authority bad mouth Party A. Then they reject that the deal made with Party A was valid. Wait? Is that smart? Wasn't that all that saved Party B was getting in trouble for publishing someone else's work without permission? Ooh, then Party B starts claiming, "No, really, Party A is the pirate, trust us!" Wait, isn't that defamation? Sounds like it's a good thing Party C decides to voluntarily step in and offer to mediate.
And that's where the all or nothing comes in. Party A decides he's still willing to offer a much-to-kind deal. He'll drop all claims of defamation and copyright violation without even asking for a single penny, just two concessions. First, stop defaming him and acknowledge that he hadn't done anything wrong. Oh hey, Party B thinks that sounds good. Party B is in fact alleged to be shocked that Party A is willing to settle without asking for any money. Ah, but the second thing? Well, Party A figures after being publicly harassed that he ought to get something slightly better than the original deal. So hey, this one minor character, who before Party A's involvement was nothing more than a name on a list, well Party A had invested time and emotion into that character, so let him had that. No money, just an end to the abuse and a fictional character that Party B had never shown any sign of wanting to make any use of. Oh. Well, apparently for Party B that was beyond the pale. Sorry, see you in court Party A.
No the part in the title about, "Well don't come crying to me?" It seems that Party B would have done quite well to have either not reneged on the original agreement or to have accepted the, "No money, just let me have this minor character as mine." Because part of the process of going to court involves digging through records. Which resulted in Party A rediscovering the original terms his work had been offered under. Terms which were not Work for Hire and were not "We'll buy it as an individual product", but terms that said, "We'll be picky because if we accept your work we'll be making it a part of our greater product."
Oops. Now, most likely that would have been written away in the final contract if the original submission hadn't been rejected. But that's damaging since if the original deal was, "If we take it, it becomes part of the larger whole", then the law says Party A is a co-copyright holder to that larger whole. Note, not co-copyright holder to his submission, but the whole product. At which point the law doesn't much care what percentage you put into the whole, a part owner is apparently just that, a part owner. Oopsie? Suddenly not playing nice sounds much more expensive.
The thing is, it's not gone to court. Even if the court rules in favor of Party B, this is alot of hassle, time, and money that didn't need to be lost. Really, one minor character that previously was nothing more than a name on a list is enough to effectively say, "Talk to the hand, not even going to make a counter offer, yeah sure you'll take us to court. We dare ya to do it."
Well, as I've said for some years now, when you say all or nothing it seems to me history usually doesn't say you'll get the all side of the equation. You might not get nothing, but it seems you usually get a heck of a worse deal than you were offered in the first place. And who knows, maybe when it reaches court it will turn out Party A was full of hot air and Party B has Perry Mason as a lawyer. But if that isn't the case I suspect someone is going to regret deciding to go for all or nothing.
(Edit: Oh, and as a note, quite intentionally not naming names as I'm not really interested in arguing the merits of that particular suit so much as commenting on my philosophy regarding people taking all-or-nothing positions.)
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no subject
Date: 2009-07-30 12:55 pm (UTC)no subject
Date: 2009-07-30 02:56 pm (UTC)no subject
Date: 2009-07-30 05:27 pm (UTC)no subject
Date: 2009-08-02 08:45 am (UTC)I have the suspicion that the judge will be annoyed with both sides. And it's my understanding that as much as judges are supposed to judge cases based on the facts and the law -- there is often enough wiggle room that even a judge can feel that they are going with the law and facts and still take action based on being annoyed.
I'm reminded of Pamela of Groklaw mentioning a judge who was so annoyed with one side in a case that they intentionally bent over backwards trying to allow that side nearly everything they asked for. Why give that side everything they asked for when you are finding them annoying? As the judge later explained, (quoting from memory) "It was plain from the facts being presented that they were going to lose. I just wanted to make sure that they had absolutely zero grounds for appeal. So I gave them all the rope they asked for knowing full well they would hang themselves with it."
I mean what are you going to tell the appeals court. "Waaah! The judge let us have an expert witness, who said what we wanted him to say, but it wasn't enough to sway the jury. Give us an appeal because the judge shouldn't have allowed that witness to testify!" The appeals court would laugh at you before having you thrown out on your butt.
When you aren't one of the parties in court it can make for a somewhat amusing show. I certainly hope however never to be one of the stars in one of these shows.