Monday, October 15, 2012

Arbitration Friend or Foe?

By Samuel Lewis Published in The Business of Photography
Arbitration Friend or Foe?
An attorney for the Times, Kelli L. Sager, a partner with the firm of Davis Wright Tremaine LLP, believes the outcome was appropriate. "[T]he parties negotiated an agreement that included provisions for resolution of any dispute, and Mr. Strick and his counsel chose not to abide by the parties' agreement. Both the district court and the arbitrator agreed with us."

Writing about the decision, Valada pointed out the "biggest flaw in agreeing to arbitration: you will be held to it, even when, as in copyright infringement, you have denied yourself some really important remedies...." She also pointed out that the 90-day window for commencing arbitration is unusually short. However, "[Strick] did have the power to say 'no' to the terms and walk away. I do suspect that his access to the subject matter was a reason he got the gig in the first place, so maybe 'no' would have turned in his favor. Most photographers (and frankly, other creators) I've known in my life are so insecure that they are afraid to use that word. The people I know who have used it are generally the most successful."

Lessons To Be Learned…

It's easy to view the Strick case as a cautionary tale about the evils of arbitration. The problem with doing so, however, is that it ignores a multitude of factors that contributed to the unfortunate result. To suggest that arbitration itself is inappropriate in all circumstances is to engage in the sort of naïve thinking that one approach to resolving disputes is appropriate for all situations.

If there's a lesson to be learned here, it's that attention must be given to all aspects of a contract, as even relatively insignificant or "standard" provisions may have a tremendous impact on your ability to enforce or defend your rights later. To accept terms without properly analyzing the potential long-term impact such terms may have is to act with reckless abandon. Likewise, when a dispute arises, it's critically important to follow whatever procedures have been agreed upon for resolving disputes.

As with so many things, there's another, albeit more subtle, lesson to be learned. Parties have a great deal of freedom when it comes to contracting with one another. Where parties have struck a bargain, even if that bargain involves giving up certain constitutionally protected rights (like a right to a jury trial), courts may honor the parties' agreement. Thus, when you consider entering into a contract, you should soberly reflect upon whether you can live with the bargain as proposed. If in doubt, seriously consider saying "no."

Samuel Lewis is a Board-Certified Intellectual Property law specialist and partner at Feldman Gale, P.A., in Miami, Fla., and a professional photographer who has covered sporting events for more than 25 years. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. or This email address is being protected from spambots. You need JavaScript enabled to view it..

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