Comment by throwaway_USD | Hacker News Reader

Comment by throwaway_USD | Hacker News Reader

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In 2015 I had an unusual solicitation from a recruiter on LinkedIn - as a lawyer this in my experience is a rarity unlike tech where I understand it to be common place - with interest in offering me a General Counsel position with Romero Britto's Company.

Turns out Apple engaged in discussions to license (or maybe commissioning) Britto's Art, but then Apple turned around and essentially just "knocked off" of Britto's style. They were looking to bring me in to file and handle lawsuit for copyright infringement...I declined the offer and they filed suit (I believe it ended up with a settlement).

It is easy to have strong opinions one way or another about copyright laws, but feelings of law aside, my opinion was that it was in very poor taste for a company like Apple to court an Artist like Britto and then big time him the way they did...sure art and artistic styles are a dime a dozen, but they could have used any art for their campaign, they didn't have to mimic/copy his style (I can't fathom what would even make them do that...ego I suppose). For those who are curious here is a link to an article that shows Apple's alleged infringing art:

https://www.miamiherald.com/entertainment/visual-arts/articl...

Out of interest, if someone contacts you in this manner, do you/they have an implicit attorney/client privilege? Or is it only after you come to an agreement to represent them? Or is it more of a rule of thumb?

It is actually an extremely complex analysis that is dependent on the facts and the jurisdiction (applicable law). It simply isn't applicable to my communications with a 3rd party recruiter from LinkedIn which was not regarding legal advice but potential employment, nor did my comment contain any confidential information protected by the privilege.

To address some of the other responses (common myths):

1. It does not require the exchange of $1 for the attorney-client privilege to apply. For example attorney-client privilege will generally apply to free consultations and it will equally apply in the case of pro bono (free) legal services from groups such as ACLU or EFF to their clients.

2. Attorney-client privilege does not require an agreement for representation to apply (again think of a consultation before an agreement to represent where the privilege applies).

As far as a "rule of thumb" a decent summary by the ABA is:

"Nevertheless, there are some rules that generally apply to most, if not all, jurisdictions. For attorney-client privilege to apply to a communication, the general rules require that: (1) the communication be between a client and an attorney (i.e., an individual having a law degree and bar membership, and acting as an attorney for the client) or an agent of an attorney (e.g., a tax accountant, a patent agent, a forensic investigator, a technical analyst, or an expert); (2) the communication be made by the client and contain confidential information; (3) the communication be made outside the presence of a nonprivileged third party; (4) the communication be made for the purpose of securing legal advice; and (5) the privilege has not otherwise been waived. Privileged communications can be written or oral, but only communications between or among “privileged” persons are protected.

Thanks for clarifying this. I didn't mean to imply that you'd violated any trust here, I was just curious. And obviously you're being discreet with the use of a throwaway.

There's attorney client privilege the whole time. It does not require money to change hands or an explicit agreement of representation before kicking in (as some others have said).

https://www.nolo.com/legal-encyclopedia/does-the-attorney-cl...

I don't believe that that link supports the general assertion you're making about there being attorney client privilege the entire time. In this case, if the above lawyer receives a message that is unsolicited, Apple should have no expectation of that privilege/privacy of the communications without some prior agreement. Apple has no way to know that the account is even directly run by the lawyer themself or an aide.

Privilege begins once the client and the attorney have agreed on representation.

Pop culture says that happens when the first dollar is handed over.

I lived in South Florida for a while. That art style is so recognizable that I immediately knew where the Apple ad came from, though I didn't know the artist's name.

How do you even begin to quantify the 'likeness' of one piece of art to another though? In this case it sounds easy enough since they consulted with the artist beforehand, but what if they ripped off his style without ever talking to him, how do you prove it's a copyright infringement?

>In this case it sounds easy enough since they consulted with the artist beforehand, but what if they ripped off his style without ever talking to him, how do you prove it's a copyright infringement?

As they say when the facts are not on your side argue the law, and when the law is not on your side argue the facts. I tend to agree the facts of good faith conversations/business dealings helps if not makes the entire case possible. Even if there was an "obvious rip off" the artist would likely not take on Apple if it were not for the prior good faith discussions between the Artist and Apple.

>How do you even begin to quantify the 'likeness' of one piece of art to another though?

It is a good question...Britto has a very recognizable style that is some sense is also somewhat generic (my opinion only, I am far from an art expert). Copyright/Trademark infringement cases typically come down to questions of fact and the ultimate finder of fact (jury) which is likely why fewer than 10% of cases would go that far but rather parties will elect to settle.

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