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An Interview with Ivan Hoffman, B.A., J.D.
Interview Questions and Answers
Title: || Attorney at Law|
Area of Expertise: || Writing and Publishing Law, Web Design Contracts and
Law, Copyrights, Trademarks, Internet Law, Recording and
Licensed in:|| California
What's Happening in the Law, as Applied to Freelancers?
Q: How long have you been practicing law?
Ivan: I've been practicing law for a total of 25+ years. However, after my first 22 years, I retired, in 1990, at the age of 47˝, with no intention of returning to law practice. But when I discovered the Internet in 1995, I knew I needed to a part of this revolution. I reactivated my practice in January, 1996.
Q: Why did the Internet inspire you to return to reactive your practice?
Ivan: I started my practice in the music, recording, and entertainment field and that deals with copyrights, licensing, contracts, etc. The Internet deals with all the sames areas of law.
Standard Contracts and Proposals
Q: In August of 1996, the New York Times revised its contract policy. Some of these changes include:
Writers must sign work-for-hire contracts.
What is your reaction to these changes?
The contract remains in force in perpetuity.
There will be no negotiation.
Writers must indemnify the publisher against legal action.
Ivan: In general, my response to any agreement negotiation, whether for articles, books, or other writing, is that each writer must find his or her own level of personal dignity. All deals are made on the basis of who wants who more, and if the writer is desperate, that desperation may result in the writer making a bad deal.
It is up to the writer to decide what value the money may be versus the loss of the rights the writer is being required to give up. The best deals are made by those that can afford to say "No" and "afford" is not limited to monetary considerations. If the writer has any concerns, the writer should consult an attorney.
Employee Status vs. Temporary Worker
Q: Elsewhere on this site, I have referenced different books that are useful for freelancers. Some of these books give good examples and background information about preparing contracts. Are there any titles you would recommend?
Ivan: NEVER, NEVER use form contracts, whether from a book, a friend, or otherwise. What you believe you are "saving" in money terms may turn out to be quite expensive if the form does not have adequate provisions for your legal protection.
Q: From your own legal experience, what are the most common legal errors or oversights committed by freelance writers?
Ivan: Trying to use forms or having no agreement at all.
Q: In states like California, firms routinely hire people to work on site as if they were employees, yet the workers receive no benefits and must often sign Independent Contractor contracts that contain special restrictions. The IRS has written guidelines to help determine a worker's status as an employee, a temporary, or an independent. What other recourse does someone have?
Ivan: There is also a Supreme Court case, Community for Creative Non-violence vs. Reid, that dealt with these questions in the context of whether or not someone was an employee under the Work Made for Hire Doctrine of the United States Copyright Act.
The worker should always have a written agreement with the company outlining pay, rights, and other issues, and, as above, if the worker is not satisfied, the worker should consult an attorney or find other work.
Q: Because my own background is in writing and editing, the questions so far have focused on that area. But you also work with other people having other creative talents. Could you give us an example of a common problem faced by freelancers in the field of web design?
Ivan: Again, the issues are that most web designers either have no written agreements with their clients or have "cut and pasted" one together and then find it is woefully insufficient to protect their rights. They often find that they do not get paid by the client and have little or no recourse because of not having a legally sufficient agreement. Where is the dignity in that? Trying to save a few dollars has cost not only money but self-respect.
Q: You frequently mention the word "dignity." Why?
Ivan: Dignity. In my essay, Dignity for Designers, I explained that, if you have enough self-respect, enough belief in your talents, enough dignity, then you should be willing to translate that respect, belief and dignity into the business side of your work. It is not enough to be talented; if your talent does not produce real world, satisfying results - money - the same talent that blesses you can curse you. Do you wish to be talented and frustrated or talented and successful?
Comment from the Editor: Ivan has written many excellent essays pertaining to the law and to those working in creative fields. A link to his essays can be found on Freelancers FAQ.
To contact Ivan Hoffman, Attorney at Law, directly, e-mail him at: firstname.lastname@example.org
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Sunday, April 20, 2003 15:50