I've been a publishing lawyer for 28 years. In the last year I've been asked by three different friends how to gather thoughts to make a proposal to a book publisher for a non-fiction title.
Here's my most recent advice, stripping it back to a checklist of seven tasks.
For decades the Beatles and Apple Computer, Inc were frenemies.
Entities associated with The Beatles sued Apple Computer, Inc three times over almost three decades. They were big cases, they cost a lot to run. They cost Apple Computer even more to settle.
This mostly trade mark dispute story has been retold many times. For example see Wikipedia. It's the frenemy relationship notion that interest us here.
Yesterday there was confirmation that legal advice pays, sometimes only long term.
Phone Directories Company Pty Ltd, a small Queensland-based telephone directory company, struck down giants - Telstra, Sensis and their claims to copyright in listings in the Yellow Pages and White Pages.
Victory came to Phone Directories when yesterday two judges of the High Court of Australia refused the Telstra and Sensis application for special leave to appeal. In Australia the High Court is the final court of appeal.
Few people know that usually more can be gained in a pre-contract negotiation than in negotiations after a written contract is supplied.
It's about the importance of process over documentation, preparation over punctuation, deal making over contract drafting.
To teach this, since the mid-1990s I've run three hypotheticals on the art of contract negotiation.
The hypothetical are both entertaining and informative. I prepare a script and characterisation for the players. The script allows for a great deal of improvisation. The characters are a panel of "actors" (real people in business playing their real life roles, eg businessperson, lawyer, consultant). The plot involves them talking through a deal in direct negotiations on stage. After many issues arise, this live deal making usually ends in a written contract.
The first and probably best hypothetical I ran was in 1995 for developers of multimedia or IT products at the first national conference of AIMIA. The script had a developer with digital media rights to the book, A History of Australia. The person playing the developer role engaged in negotiations with a panel comprising the book author, book publisher and a CD-ROM distributor. They negotiated together on stage bringing the print book to life on a CD-ROM. DVDs and the internet were not technically or commercially feasible back then.
A recent episode of the ABC's Media Watch highlighted the expanded use of watermarking in TV news video footage and news photos.
It highlighted ticker tape style watermarks on news video footage and multiple watermark labels on news photos.
News source logos have long appeared as watermarks in reports. The following Channel Nine video demonstrates the expanded use of watermarks as well as use of YouTube for public relations to shame Channel Seven.
No accountant, business lawyer or executive in business can afford to be clueless about intellectual property ("IP") law. Every business has some IP, eg its name. Yet few know the many benefits of intellectual property registers, or even what they are. Here's an introduction.
For real property there are central registers storing information useful for legal work. They are used for real estate transfers, leasing and other transactions.
For IP there is no one central register for all IP owned by a business or other organisation.
Yes, there are central government registers for patents, designs, plant varieties, and some trade marks. There are also registers for business names and domain names.
Every day the Australian trade marks register, business names registers and ASIC company register is littered with new appalling names and logos.
If branding is so important, how come so few do it well?
Ponder the top 10 lists below of what branding is, and is not.
Discussions about law are never free of politics. Some areas of law become overun by politics. It's then foolish to discuss them using only the lenses of policy, governance or legal principles.
Patent law for online software, copyright law for traditional entertainment industries, and trade mark law relating to tobacco labelling are current areas of intellectual property law overrun by politics or public policy.
Law making in the U.S. for patents resembles a zoo for some commentators. A recent account of the debates and haggling over proposed U.S. patent law changes appears in the Huffington Post report: The Spoilsmen: How Congress Corrupted Patent Reform. Published on 4 August, it has attracted 2,167 comments so far.
Consultancy businesses survive on the quality of their insights and advice. Therefore every year consultants and advisers invest in re-inventing or creating new intellectual property ("IP").
Consultancy firms have special needs for the protection of their IP and legal position generally. Consultants share IP, a great deal of it is know-how. They share it with clients, employees, contractors and partners.
How do they stop going backwards when the people they work with seek to profit from unauthorised use of the IP? How can consultants protect their IP investment?
When people pull in the same direction to build IP a virtuous circle of trade is formed. This can reduce costs and turn-around times and standardise quality. Clients and others benefit.
An MOU is a tool for deal making, relationship formation, and business structuring.
It is used by companies, not-for-profit organisations, and governments.
Although a memorandum of understanding ("MOU") has no specific status in law, it's a very useful tool when drafted well.
There are many situations in which MOUs are used and in which they are very effective and suitable as compared to the alternatives.
A choice is often made by clients in consultation with a business lawyer between drafting an MOU, or a contract, deal memo, terms sheet, or heads of agreement.