In this article, Snigdha Pandey, Marketing Associate at iPleaders discusses the must Have Skill Sets For An In-House Counsel In The Media & Entertainment Industry.
We all remember our first day at our first jobs. It is all about listening to your reporting manager and trying to cram as much as possible -names, departments, way to the bosses’ cabins, pantry and restrooms; and most importantly the study/research materials!
On my first day at work with a music label, my boss gave me two files: one marked “research and opinions” and other had the name of a fairly renowned international company. He briefly told me about the dispute in question and said “We have four days to prepare, file and get an injunction against this company. Study the materials, sit with our attorneys and get it done.” I tried my best to hide my nervousness and said: “Ok, sir.”
In the start-ups and technology age, most of my internships and assignments had taught me about product patents and trademark laws only, but this was strictly copyright. So I dove straight into the research file to gain some insights. Turns out there were only some old case laws and judgments along with a few opinions from prominent jurists!
My only other option was to resort to the bare act lying right next to me. But this was an international infringement, so did that mean I will have to rely on international laws? Where do I begin – the dispute itself or the basics of copyright law or the policies and agreements of the platforms involved? There were too many questions and no answers.
These days there are complete structured diploma courses being offered online, designed specifically for media and entertainment laws. But at that time, all I remembered were theoretical excerpts from the media and law optional subject in college, which barely helped in my predicament.
Over the next few days, I studied the concept and terminologies in copyright law, nature of usage and poured through the agreements and policies and talked to the experts and attorneys. Somehow within a week, we managed to get the injunction in our favour against the respondent company!
This was four years ago. Over these years, there are a number of lessons I’ve learnt and experiences I’ve gained from. The most important lesson perhaps has been that in-house lawyers, especially the ones working in the media and entertainment industry must have certain prerequisites as skill-sets. Here is a list of seven skills I found to be the most useful:
Know How To Draft A Contract and Legal Notice
Merely knowing how to draft a basic agreement is not enough and all agreements need to be drafted diligently so as to protect the company from potential disputes in the foreseeable future.
The thumb-rule for an in-house counsel is that as the agreements will be used in future dispute resolutions, there should be enough wiggle-room left for the company to adapt and make decisions as when the time arises.
Similarly, there are different kinds of notices that media and entertainment companies use. For example, apart from the usual legal notices such as demand notices and breach of contract, there are other specific legal notices that are drafted by in-house counsels. These are cease and desist notice, Digital Millennium Copyright Act (DMCA) take-down notices, etc.
Most law students and lawyers like myself may have acquired the basic contract and notice drafting skill through internships or practice after graduating from law school. But now, there are advanced online courses available, specially designed to cater to specific needs like drafting and negotiation of commercial agreements, corporate contracts, music licensing agreements, content assignment agreements, etc.
Breeze Through Advising The Business, Legally
One of the most important and usually unspoken aspects of the job is guiding various departments such as accounts, finance, sales, marketing; and coordinating with them at different junctures.
The legal issues faced by a company come from all directions. For instance, prior to an agreement being drafted, the business team has to be advised on how to proceed with the negotiation in order to come to terms acceptable to the company. Before launching a new product, all the trademarks, design patents are to be cleared so that the product is aptly protected.
This requires constant advising and coordination with internal departments, so both the soft skills and negotiation skills of in-house counsels are tested.
The Art Of Analysing The Dispute
Many times, for want of preparation, the lawsuit is lost. The most important aspect of a dispute is the analysis of its nature.
For instance, in a music infringement, the infringement can be of the tune, lyrics or the sound recording. But to analyse that, one may need an expert opinion to determine the same and submit their musical notations as evidence. This could help pursue the judge in their favour!
Therefore, the in-house counsels have to adhere to certain parameters to analyse the nature of the dispute. In order to analyse the same, knowledge of both the relevant laws as well as industry-knowledge is paramount.
- Do You Know How To Negotiate? You Need To!
After a dispute comes into the picture, usually parties try to send out communications in order to resolve them through mediation or negotiation. The business teams and the in-house counsels from both sides communicate and try to reach a reasonable outcome in order to avoid unnecessarily expensive litigation. To be able to do this the in-house counsels have to be trained in effective negotiation skills.
Negotiation is a subject rarely taught at law schools. With the ultimate focus of co-curricular activities in law schools on mooting, alternate dispute resolution methods such as mediation, arbitration and negotiation find no space in the curriculum! However, not everyone decided to don the black gown and fight a battle everyday. As the trend goes, most law students opt to work in corporate law firms, or in-house for stability in job profile.
Where can they learn the art of negotiation? An easy way to to do this would be to watch negotiation videos on YouTube, read the No. 1 bestseller by Roger Fisher called ‘Getting To Yes’ (and believe me when I say that they rely on this in Harvard’s Program on Negotiation!), or maybe take the help of online courses that teach the same to you with the help of industry experts!
Know The Basics Of Litigation
When the negotiations yield no results, the law firm and consequently senior advocates are consulted for a more detailed analysis of the dispute and possible remedies. The in-house counsels have to collect the evidence from various mediums and seek expert opinion, etc. and then brief them.
In-house counsels are the point-person for both the internal teams and senior advocates. So, they have to be able to gauge possible complications and acquire full knowledge of the dispute, while always ensuring that the company’s interests and requirements are met with.
Educating Top Management and Internal Teams
The learning never stops for a lawyer. They have to constantly keep themselves, their top brass, and internal teams educated and updated about the latest trends and laws through white paper presentations or conducting seminars, etc.
For instance, do you think that the marketing team would know the laws that they would have to comply with while creating a TV advertisement? Is it always the job of an in-house counsel to guide them each and every time an advertisement is being created? That’s impossible. It is imperative that lawyers take sessions every once in a while with such teams and prepare list of do’s and don’ts and checklists for these teams to adhere to.
- Maintaining Management Information Systems
Doing the above-mentioned things properly is not sufficient on its own, an effective communication of the same is required through various report management systems. This helps the in-house counsels not only to record their activities, but also enables them to keep the bosses apprised of legal on-goings of the company in an effective manner.
For the same, report management systems are used. These include litigation management databases, daily/bi-weekly internal reports on activities. It helps the management in taking swift decisions about matters, based on urgency.
There is no alternative to hard work and perseverance, but I find a structured guideline helps navigate through the journey more easily. There has to be constant learning involved at different junctures to keep up with the changing regulations, laws and technology.
We can learn something over the span of years on our own or take some help and learn effectively within few months. Whichever option we take, we must learn constantly to achieve success.