Something Complicated. Something Easy

While catching up on my reading, I ran across an article in the December 2013 issue of Entrepreneur.  A reader asked about starting a t-shirt business using funny quotes from Facebook and whether he needed to get permission from Facebook.  Part of the response was that previously published material could be used as long as credit was given to the author.  Wrong!  That is copyright infringement plain and simple.  Copyright is a very complicated area of the law, and it amazes me the amount of legal advice that is given by non-lawyers.  You do not shield yourself from a claim of copyright infringement by merely attributing the phrase to the author.  You are merely pointing out the fact that you are knowingly infringing.  There are other uses where attribution is enough, but as the title of this post states, it’s complicated.

Here’s an example of the complications of copyright.  The William Faulkner estate recently sued Sony Pictures Classics for the use of a phrase from a Faulkner novel in Woody Allen’s film Midnight in Paris (starring Owen Wilson).  The character quoted a phrase from one of Faulkner’s works and even pointed out that he was quoting Faulkner. Sony managed to get a judge to dismiss the lawsuit, but it took some legal maneuvering and cost a lot of money to get to that point.  And the offending phrase was not even one minute of a 90+ minute movie.  Putting a published phrase on a t-shirt and giving credit to the author is not a way to prevent a claim for infringement.

With all this talk of something complicated, thankfully there are easy things in life.  One such easy thing is this mayonnaise recipe.  The recipe is from The Last Appetite, and it’s super easy.

200 ml oil (such as canola) (just shy of 7 oz. – most glass measuring cups have a side marked with ml)
1 egg (don’t separate the yolk – this is supposed to be easy)
2 tsp. dijon mustard
1 T lemon juice
pinch salt

Put all ingredients in a mason jar.  Blend with your stick blender.  Voila!  Mayonnaise.


Is There Rage Left in the Bull? How About Some Stew?

The Supreme Court recently agreed to hear a case of copyright infringement involving the 1980 movie “Raging Bull.” The underlying lawsuit is about whether the 1980 movie infringes on a book and two screenplays created by the boxer Jake LaMotta and a friend, Frank P. Petrella. 1980 seems like a long time ago. That’s pretty much the issue that the Supreme Court will address – whether the lawsuit was filed too late. Mr. Petrella’s daughter filed the lawsuit but didn’t do so until 2009, 29 years after the movie. The Copyright Act provides for a three-year statute of limitations, which Ms. Petrella contends gets restarted every time there is an act of infringement. The district court granted summary judgment to the film studio based on the doctrine of laches – that Ms. Petrella sat on her rights and could no longer enforce them. The Ninth Circuit affirmed. Scotusblog has a link to the Supreme Court filings here.

But all this talk of bull made me think of beef. The weather is starting to cool down, and it is turning into good weather for stews. One of my favorite stews is beef bourguignon and, in particular, Ina Garten’s (a/k/a Barefoot Contessa) recipe is easy and delicious. I can’t help it – sorry Julia Child. And another quick copyright tidbit – lists of ingredients generally aren’t protectable by copyright. The recipe is below (directions are mine as though they are protected by copyright).

1 T. olive oil
8 oz. bacon, diced
2 ½ lbs. beef chuck, cut into 1-inch cubes
Black Pepper
1 lb carrots, cut into 1-inch chunks
2 onions, sliced
2-3 cloves garlic
½ cup cognac or brandy
1 bottle (750 ml) red wine (e.g. Burgundy (for which the stew is named) or pinot noir)
2-2 ½ cups beef broth
1 T tomato paste
1 tsp. thyme leaves
4 T (1/2 stick or 2 oz.) unsalted butter at room temperature
3 T flour
1 lb. frozen pearl onions
1 lb mushrooms, thickly sliced

Heat the oil in a large pot that has a lid, such as a Dutch Oven or stock pot. Add bacon and stir until lightly browned. Remove bacon but keep drippings in the pot.

Consider removing the beef from the fridge to let it warm up before cooking it (we’re talking an hour or even a few). Some people will gasp in horror, but adding cold beef to a hot pan will make it harder to get a good sear on the beef. Pat the beef cubes dry (otherwise they will not sear, develop a crust, and you will miss out on those wonderful brown bits that give depth of flavor). Sprinkle beef with salt and pepper and sear on all sides. Don’t crowd the beef or the temperature of the pot will drop causing the beef to steam. Work in batches if necessary. Remove the browned beef and set aside.

Add to the pot the carrots, sliced onions, 1 tsp. salt, 2 tsp. pepper, and stir until the onions are slightly browned. Add the garlic and stir for one minute (don’t brown the garlic as it will turn bitter). Add the Cognac, and carefully light with a match. There are enough alcohol vapors, you will just need to bring the match to the edge of the pot or so – you will probably not need to get the match close to the liquid. Be careful and stand back when you light the Cognac, unless you enjoy the smell of singed hair or are not emotionally attached to your eyebrows. Put the meat and bacon back in the pan along with any juices. Add the wine, tomato paste, and thyme. Add enough enough beef broth until the meet is not quite covered. Place the lid on the pot and maintain at a low simmer for about 1 ¼ hours until the meat is very tender when pierced with a fork. (Alternatively, place the pot in a preheated 250 degree oven).

Mix 2 T of the room temp butter (1/4 stick or 1 oz.) with flour into a paste, then stir into the stew. Add the frozen onions. In a separate pan, melt the remaining butter and brown the mushrooms. Again, be careful not to crowd the pan, otherwise the mushrooms will steam as opposed to browning. Add the mushrooms to the stew. Bring the stew back to a boil, then simmer for another 15 minutes.

Serve with toasted French bread, egg noodles, or whatever starch you fancy.

Signed, sealed, and delivered. I agreed to what?

This will be a series of posts to address issues that can be uncovered simply by having an attorney review a contract.

Signing a contract is a big deal. We seem to have become desensitized to it by having to click “I Agree” all the time to terms of service, end-user license agreements, and so on. This series, though, will focus on contracts between parties who are more equal players and may have even taken a stab at drafting a contract on their own.

When you sign a contract you are committing either yourself or an entity to do or refrain from doing certain things. This is not shocking. You’re intelligent, write well, and put yourself through college. The contract is written in English. You read it. You think you understand it. So, why waste money hiring an attorney to review it. Having an attorney review the contract before you sign it is cheap insurance. It could be just the thing to help you avoid a contract dispute down the road.

What is the point of the contract? Having an attorney review a contract gets an extra set of eyes on the document. You may think the terms of the contract are perfectly clear. Are they? Is the language precise? Is it clear who is supposed to do what and when? Are your duties clearly defined? Is your relationship with the other party ambiguous? An attorney’s review of the contract would help alert you to these issues.

Are you merely investing in your friend’s company, or will the law consider you partners (and on the hook for liabilities that your friend incurs)? Are you paying just for the service of designing that new logo, or are you buying all rights to the logo too? These are just some examples where ambiguous contracts can create lots of problems down the road.

Why does it matter? The terms of the contract set expectations. What will be expected of you? What rights do you have? What is the other party supposed to do? If the contract isn’t clear about the parties’ rights and obligations, then there could be big problems. One party may think they didn’t get what they bargained for, while the other may think that they exceeded what was required of them. That kind of misunderstanding can doom a relationship and lead to a lawsuit.

Having an attorney review the contract will not guarantee smooth sailing, but you may learn that you were about to dance with a tar baby. It may just be the thing to stop you from making an expensive mistake.

What’s Your Name?

How to Choose the Right Name…..the first time

Naming your company and products is often the most creative and enjoyable phase of a new venture.  Over the years, we have recognized the following pitfalls in the naming process:

(1)  Choosing a descriptive or generic name.  Often clients tell us, “I want my company name to tell the public something about what I do.”  Therefore, they choose a name like “Chemical Free Dry Cleaning” for a – um – chemical free dry cleaning company.  They urgently want to file a trademark application to make sure that no one else can adopt this name.  The hard fact:  descriptive and generic names are not protectable.  If you choose a descriptive or generic name, you will find it very difficult to distinguish your company in the market place.

(2)  Choosing someone else’s name.  Even more often, we run into companies adopting mere variations of company or product names adopted previously by others.  Sometimes, without actually knowing they have tread on protected land until it is too late . . . . and they have received a nasty cease and desist letter from the original owner.  A prudent entrepreneur will search the proposed product and company names on both the internet and the Trademark data base.  If the name is in use on any product or service closely related to your products or services, you should stay away.  If you feel like you are in a gray zone and are not sure, you should seek the opinion of a trademark attorney. Your business attorney, divorce attorney, or friend in law school is often not the best person to ask.

(3)  Failing to protect the mark with a Trademark registration.  If your company is seeking funding, announcing its name to the public, and investing thousands to millions of dollars in advertising and branding, you should pursue Trademark protection.  Often, clients wait until they have funding or until after they have started business before they file trademark applications.  Often, they find someone else has already applied to register the same mark.  This leads to either costly rebranding or costly trademark battles to reclaim the name.  Entrepreneurs should know of the existence of the “Intent to Use” trademark application which will allow them to protect the name while they are taking care of the preliminary details of launching the business.  The Intent to Use application allows the business to reserve the name for at least one to two years (if procedures are followed) while they prepare to launch.

(4)  Even if your business is small scale – such as a craft shop on Etsy or Ebay, you must be careful not to adopt the marks of others.  It doesn’t matter how small you are.  Take your branding seriously.  The only way your clients will find you is to adopt distinct product and company names.

Heather N. Schafer 

Should You Take the Leap?

Entrepreneurship is not for everyone.  It is a leap into the unknown.  While there can be great rewards, there are also great risks.  Like for almost everything in life, there are lost of little quizzes, especially on-line, that you can take on the subject.  Score the right amount of points, and you should be an entrepreneur.  The decision to leap into entrepreneurship is a very important one.  Just as you wouldn’t pick a spouse based on a Cosmo sex quiz, don’t put too much weight in these quizzes that determine your entrepreneurial ability.  If you seriously take inventory of your personality, likes, and goals, you can gauge whether taking the leap into entrepreneurship is for you. Entrepreneurship is not for everyone.  That’s OK.  Everyone is different.  Some people love the thrill of being dropped ten stories on a roller-coaster ride.  Some don’t.  Neither makes you a good or bad person.

From the lowest to the highest.

One thing that you will need to be comfortable with if you are to be an entrepreneur is that you will have to do, or be prepared to do, almost every task that it takes to run your business.  While your business card may say “CEO,” this doesn’t mean that you get to sit in a fancy office all day and rely on your staff to do all the dirty work.  Unless you are lucky enough to have a huge infusion of cash, you will need to keep your overhead low.  That means, in the beginning, much of your company’s work will fall on you.  Even if you have staff to help, they will not always be there.  They may get sick or not show.  If that happens, you’ll have to roll up your sleeves to get the job done.  Getting the job done is how you get paid, so letting the job go undone is not an option.  This could mean making deliveries, packing boxes, cleaning bathrooms.  The list of possibilities is endless.  While you may not be doing these things every day, there may come a time when the only person that you can turn to is you.

It’s a juggling act.

If you only want to keep your nose down and focus on one task, then entrepreneurship may be difficult for you.  As an entrepreneur, you have to juggle a multitude of tasks.  The network is down.  The printer broke.  A delivery is late or wrong. Your insurance is up for renewal.  Your bank balance is low.  It all gets in the way of getting the job done, but these problems have to be addressed.  While your role in fixing them might be finding the right person to fix the problem, the buck still stops with you.  You’re no longer in the corporate womb where so much is done for you so that you can focus on doing your job.  If the thought of having to buy toner cartridges for the printer or searching for liability insurance makes you sick, you may want to know how you’re going to handle these things before you take the leap.

You’re going to see the man behind the curtain.

There is illusion and then there is reality.  For those in a “regular” job, it is easy to buy into the illusion of regularity and stability.  It seems like your job is solid, your company is solid, and there is ground under your feet.  However, that is an illusion.  The reality is you don’t know the future.  Your company could go under, your boss could fire you, your company could eliminate your job.  Even though that is the reality, it’s easy to ignore the reality and buy into the illusion of stability.

As an entrepreneur, you see the man behind the curtain.  You are confronted with the reality that there is little to no solid ground under your feet.  The reality may be that you’re down to your last $1,000.  You haven’t had a new customer in days.  Your supplier failed to deliver on time, and it is costing you sales.  You see that you are on a roller-coaster ride, and you don’t know what the next turn will bring.

Time to evaluate.

How did these different scenarios make you feel?  Did you freak out?  Did your stomach churn?  Guess what?  That’s OK.  The question isn’t whether you reacted badly.  The question is can you handle it.  As an entrepreneur, you’re going to face some heart-thumping, stomach-churning moments.  That is practically guaranteed.  Is that enough to make you take a pass?  If it is, then that’s OK.  But, if what’s driving you is more powerful than the stomach-churning moments ahead, then you may be ready to take the leap.



Don’t lose your head …

I have worked with entrepreneurs.  I am an entrepreneur.  And what I can tell you is that it can make you feel like you are going crazy.  Taking the leap and starting your own venture lands you in a nice prickly seat on an emotional roller coaster.  One moment elated, the next moment terrified.

There is no doubt that moments of fear are going to fall upon you.  It is well documented – at some point you will look down and realize that there is no net.  At that point, your heart will beat, your mind will scream and flash images of certain destruction, your palms will sweat and you will feel so claustrophobic that you will want nothing more than to escape out of every pore of your skin.

Here are five things that might help when Terror strikes:

1.  Don’t become a hater.  No one has a net.

Remember that, given the current economy, there isn’t necessarily a “net” under any of your salaried and employed friends.  The net is an illusion.  At the top of every organization is someone like you – an individual or group of individuals (e.g., the “Wizard”) – taking a huge risk and staking everything on a dream.  The choice you have made is to strike out and depend on yourself instead of relying on the Wizard behind the organizational curtain.  This is a conclusion that is not new to you.  Make a list of the reasons you decided not to depend on the Wizard and reflect back upon your list when Terror strikes.

2.  What you are experiencing is not unique.

The Terror is what ties you to all innovators, creators, and individualists everywhere.  You are in a mental space – the sight, sounds, smells, taste, and sensation of which every great innovator has experienced.  From Shakespeare and Amelia Earhart to Steve Jobs and Lady Gaga.  Striking out brings individuals to the raw edges of life – how you negotiate that edge that will determine your experience of life.

3.  The writing is on the wall.   Take in the wisdom of others.

Connect with the wisdom of those who have gone before you.  The purpose of the “Don’t Lose Your Head” category of Best Foot Forward is to provide you with inspiration and perspective from innovators who – just like you – had a great idea and courageously forged forward to make it happen.

4.  You are not alone.  Find people like you – they are out there.

Connect with fellow innovators and creators on the path.  Starting your own venture is something that you ultimately do alone.  The process of translating your idea into the marketplace can be isolating.  Isolation happens pretty fast.  Your mind turns to self-employment tax, self-insurance, whether to patent or not patent, and what corporate entity is right for you.  You become very boring at parties, and you are frequently on the receiving-end of looks of confusion.  Being financially unstable, unsure about your future, and constantly questioning your sanity may also make you prefer to isolate.  Resist the urge to melt into oblivion!  There are people like you – you must find them.  The “Don’t Lose Your Head” category of Best Foot Forward also aims to give you ideas of how to get out (hopefully for free) and meet people who are on your wavelength.  Meeting with other innovators on the path is a good reality check.  It can give you ideas of how to improve and grow, show you where you are lagging, show you where you are rocking, and allow you to share your wisdom with those who need it.

5.  Just Keep Going. 

When terror strikes, truly analyze where you are and where you want to go.  Ask yourself if you have other options.  List those options and visualize yourself there.  If you’ve reached a wall or a dead-end in your strategy, seek help, talk to your friends and colleagues (only innovators, government employees and comfort seekers are not likely to be a good source of advice on how to make your independent venture take off).

At the end of the day, you must recognize the Terror as just a normal phase in the innovative process – a phase that will come and go and never leave you alone.  Don’t feed it; learn how to just watch it like an outside observer.  In time, it will distract you less.  When the fever breaks, and it will, you will feel fresh and clear and ready to go again.  Each terror just forces us to surrender over and over to the realities of the innovative life.  The Terror wakes us from the dreamy vision of what self-employment means.  Removal of that veil is a scary process, but it is not necessarily a bad thing.  From the increasingly grounded state we reformulate our priorities, test our values, and create a stronger base on which to form manifest our dream venture.